Delhi District Court
State vs Rajesh And Anr. on 7 June, 2019
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE, NORTHWEST
ROHINI COURT: DELHI.
CNR No. DLNW010010942014
SC No. 52329/16
FIR No. 571/14
PS - Kanjhawala
U/s 120B IPC r/w section 302, 392, 397, 364A, 365 and 342 IPC.
State
Versus
1) Rajesh @ Sonu @ Amit
Son of Sh. Pawan Singh
R/o E71/72, Shabad Dairy,
Delhi.
2) Anil
Son of Sh. Dayashankar
R/o Gali No. 8, H. No. 62/3
Kishan Colony, Parhladpur,
Delhi.
State VS Rajesh and Anr.
FIR no. 571/14
PS - Kanjhawala Page no. 1 of 75
Date of Institution : 10.12.2014
Date of Arguments : 14.05.2019
Date of Judgment : 06.06.2019
JUDGMENT:
1. Brief case of the prosecution as per chargesheet is :
a) On 26.07.2014, DD No. 23A was lodged on a call, in police station Kanjhawala regarding missing of one boy namely Rajesh since previous night (25.07.2014) and that caller of mobile no. 9312675684 has taken Rs.5.00 lakhs and caller's son has not returned back. The said DD was marked to SI Kamal Singh for investigation. SI Kamal Singh called the said caller on his phone. Thereafter, caller (complainant) Prahlad Singh came to police station and gave his statement to the effect that his son namely Rajesh, aged about 32 years is missing since 25.07.2014. He further stated that on the said day at about 8.00 am his son Rajesh had left for factory in his Honda Jazz car bearing no. DL 4C AN 3554. On the same day at about 8.05 pm he received a call from the mobile State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 2 of 75 phone of his son. His son told him that he is sending one Ajay and he should hand over Rs.5.00 lakhs to that Ajay. Thereafter at about 9.00 pm he received a call on his mobile number 9312675684 and caller instructed him to reach near petrol pump at Bawana with cash of Rs.5.00 lakhs. He reached the said spot. One person namely Ajay came there. He spoke to his son Rajesh through the mobile phone of Ajay. His son asked him to give Rs.5.00 lakhs to Ajay. His son informed him that he would return to the house at about 11 pm or 12 midnight. Thereafter, he handed over Rs.5.00 lakhs to Ajay. When his son did not return to home, he called on the mobile phone of his son and Ajay. However, the said mobile phones were switched off.
b) On the basis of said complaint case u/s 365 IPC was registered. Thereafter, on 28.07.2014, an information regarding parking of a white Honda car no. DL 4C AN 3554 containing foul smell and possibly dead body was lodged through PCR vide DD no. 60B, police station K.N. Katju Marg. The said DD was marked to ASI Rawat Singh. He reached the spot and found the said State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 3 of 75 car parked in DDA market Sector17, Rohini. In the said car one dead body in decomposed condition was found. ASI Rawat Singh called his senior officers at the spot. From the papers in car, the dead body was identified as Rajesh S/o Prahlad Singh, in respect of whom present case was already registered. Hence, information in this regard was also given to PSKanjhawala. ASI Rawat Singh also got the spot inspected by mobile crime team and photographs of the spot were taken.
c) Thereafter, SI Kamal Singh along with IO Inspector Tarif Singh and other staff reached the spot and dead body was shifted to SGM Hospital. Further investigation was handed over by ASI Rawat Singh to SI Kamal Singh. Car in which dead body was found was seized. Information was given to the parents of deceased. Postmortem of dead body was got conducted and after identification by family members, dead body was handed over to them. Postmortem report was obtained wherein it was mentioned that no opinion regarding cause of death could be given due to advance decomposition of body.
d) Thereafter, on 04.09.2014 accused Rajesh and State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 4 of 75 Anil were arrested by ASI Anil from special staff on a secret information vide kalandra u/s 41.1(a) Cr.PC. Accused persons were interrogated and their disclosure statements were recorded. At the instance of accused persons blood stained mattress, one motorcycle bearing no. PB 03B 6466, two mobile phones , one plastic bucket, four lakhs cash (Rs.500 denomination) and one gold ring with 'R' embossed on it were recovered. Information of the same was given to PSKanjhawala vide DD no. 64B. The said DD was marked to Inspector Tarif Singh for further investigation.
e) Thereafter, IO Inspector Tarif Singh arrested both accused persons. During interrogation accused Rajesh disclosed that he became friend with deceased in the business of Thugi (cheating). Both of them were arrested in a case and were sent to jail. He further disclosed that deceased was not giving his share in the said illegal business and therefore he along with co accused Anil, planned to kill deceased. He further disclosed that deceased was called at the house of Anil at Kishan Colony on 25.07.2014 and after taking drinks he State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 5 of 75 asked deceased Rajesh to give him money. On his denial he tied his hands and feet with rope and gave him beatings with iron pipe lying in the room. Deceased was also forced to call his father at Bawana Petrol Pump with Rs. 5.00 lakhs. Accused Rajesh further disclosed that he reached at petrol pump and took Rs.5.00 lakhs from the father of deceased. Thereafter, he came back to the room of Anil. Deceased was again given beatings by iron rod due to which finger of deceased was injured and blood came out and spread on mattress. Deceased fainted and his face was sunk into plastic bucket filled with water lying in the room due to which he died. Thereafter, deceased was taken in his car and his car was left at DDA Market Sector 17, Rohini. He also removed gold ring worn by deceased at that time.
f) Thereafter, sections 302/364A/34 IPC were added to the case. During investigation, accused Rajesh refused for his judicial TIP. On 16.09.2014, complainant identified gold ring during judicial TIP of gold ring. On the same day when both accused persons were produced in the court, complainant also identified accused Rajesh State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 6 of 75 as the person who had taken Rs.5.00 lakhs from him. One day PC remand of accused persons was obtained for recovery of nylon rope and iron pipe but the same could not be recovered. During investigation, IO recorded statements of witnesses, sent the exhibits to FSL, prepared the site plan, CDR records were obtained. After completion of investigation, chargesheet was filed in court.
2. In view of the allegations against the accused persons in the chargesheet, charges u/s 120B IPC r/w section 302, 392, 397, 364A, 365 and 342 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In support of its case prosecution examined 31 witnesses.
4. PW1 ASI Ram Kumar, is the Incharge Mobile Crime Team, who testified that on 28.07.2014 on receipt of information about the present incident from Control Room, he alongwith his staff i.e. HC Satender, Photographer, Ct. Sandeep and Ct. Manoj, in official vehicle reached at place of incident i.e. DDA Market, State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 7 of 75 Sector17, Rohini, Delhi at 4.40 PM. At the spot, they found one dead body lying in the car. He inspected the spot. At that time IO/ASI Rawat Singh, SHO PS K.N. Katju Marg and other police staff were already present there. At the spot, one white colour Honda Jazz Car No. DL4CAN3554 was found parked on the side of road. Foul smell was coming from that car. On the foot rest of the rear seat of the car, one male dead body was found lying. Dead body was in highly decomposed state and was wearing blue check shirt and blue jeans. On inquiry, name of deceased was revealed as Rajesh S/o Prahlad Singh, R/o 273A, Lamba Pana, Ujjawal Colony, Qutubgarh, Delhi. On his instructions, PW2 HC Satender took the photographs of dead body and spot. He prepared his detailed report Ex.PW1/A and handed over the same to the IO after inspection of spot and dead body.
5. PW2 HC Satender, is the photographer who proved the photographs taken by him as Ex.PW2/A1 to Ex.PW2/A19 and its negatives as Ex.PW2/B1 to Ex.PW1/B19.
6. PW3 Pawan Kumar, is the photographer running State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 8 of 75 his shop in the name and style of Vats Photo Studio at Qutubgarh, main market, near bus stand. He was examined to prove photographs of gold ring and cash of Rs.4.00 lakhs recovered from accused, when the same were released on superdari to complainant. He testified that on 16.10.2014, he along with PW7 Prahlad Singh and PW9 Sunil Verma, owner of Prachi Jewellers, Qutubgarh, went to PSKanjhawala in the noon hours. As per directions of IO, he took the photographs of the sealed pullandas containing gold ring on which alphabet 'R' was engraved and 8 bundles of notes of Rs.500/ denomination (Rs.4.00 lakhs). He further testified that IO also prepared the list of currency notes mentioning their numbers. Case property was released to Prahlad Singh on superdari. He proved the list running into 13 pages containing numbers of currency notes as Ex.PW3/A1 to Ex.PW3/A13, receipt of articles after superdari prepared by IO as Ex.PW3/A14, security bond submitted by Sh. Prahlad Singh at the time of superdari as Ex.PW3/A15, photographs of two sealed pullandas containing case property taken before and after opening State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 9 of 75 the pullandas as Ex.PW3/B1 to Ex.PW3/B5 and 267 photographs of currency notes of Rs.500/ denomination as Ex.PW3/C1 to Ex.PW3/C267.
7. PW4 Dr. Manoj Dhingra, Incharge Mortuary, Sanjay Gandhi Memorial Hospital, Mangol Puri, proved his postmortem report as Ex.PW4/A. He categorically stated that no opinion as to the exact cause of death could be given due to advanced decomposition of the body.
8. PW5 Smt. Nirmala, is the sister in law of deceased.
She deposed to the effect that on 25.07.2014 at about 7 7.30 pm her father in law i.e. PW7 Prahlad Singh came to her and asked for money. On inquiry, he told that Rajesh (since deceased) had telephoned him that he was in need of money. Thereafter, she gave him Rs.2.00 lakhs in the denomination of Rs.500/.
9. PW6 Sh. Dharamvir, is the brother of deceased Rajesh. He testified that he along with his family and deceased Rajesh along with his family used to reside in the same premises, but separately. He was running a garment export business and his factory was located in Gurgaon. Deceased Rajesh had a separate factory in State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 10 of 75
Bawana Industrial Area of manufacturing bags. He
further testified that on 26.07.2014, at about 7 AM, he received a call from his father PW7 while he was present in Gurgaon and his father was present in Delhi in his house. His father PW7 told him that his younger brother Rajesh had left the house one day before i.e. on 25.07.2014 at about 9AM for his factory in his Honda JAZZ Car no. DL 4C 3554. His father also told him that he had received a call in the evening at about 7 PM from some mobile phone which did not belong to his brother Rajesh. His father PW7 did not inform him as to whether the caller who called his father was Rajesh or someone else. In the said call, Rajesh (deceased) spoke with his father and told his father that he has to deliver a sum of Rs. 5 Lakh to one person namely Ajay. His father also told him that after that call, he had delivered Rs. 5 Lakh cash to one person namely Ajay at Bawana Petrol Pump at about 8 PM or so, approximately.
10. He further testified that he told his father that if that huge amount was to be given, atleast his father should have informed him. His father also told him that State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 11 of 75 Rajesh had not returned to their house after he left on 25.07.2014 in the morning. When they called mobile phone of Rajesh, it was responding as switched off. Thereafter, he called his father to Gurgaon as during the talks between Rajesh (deceased) and his father, his father was asked to deliver money to Ajay and that Rajesh had told his father that he was in Gurgaon. Since, inlaws of Rajesh were in Gurgaon, they thought it proper to go and search Rajesh there but when they could not find him there, they returned to Qutubgarh at their house from where they called PCR at number 100 at about 1.401.45 PM. Thereafter, they we went to Kanjhawala police station and lodged missing complaint at about 3 PM. His father also told him that he had taken Rs. 2 Lakh from PW5 in order to deliver that money.
11. He further testified that on 29.07.2014, he went and identified one dead body in the mortuary of Sanjay Gandhi Memorial Hospital. The body was unidentifiable at the relevant time but from the clothes and shoes on the body, he identified the same to be of Rajesh (deceased). Thereafter, post mortem of Rajesh was State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 12 of 75 conducted and after post mortem of Rajesh, body of Rajesh was handed over to them vide receipt Ex.PW6/A. He further proved identification memo of dead body as Ex.PW6/B and identification memo of witness Hari Ram on which he also signed as witness identifying the body of Rajesh as Ex.PW6/C.
12. PW7 Sh. Prahlad Singh is the complainant and father of deceased Rajesh. He testified that he had two sons namely Rajesh (since deceased) and Dharamvir (PW6). In the year 2011 he got started the factory of manufacturing school bags for his son Rajesh in Bawana. On 25.07.2014 at about 8 or 9 AM his son Rajesh left house for his factory. It was festival of Shiv Ratri and so a holiday. He asked his son as to why he was going to factory though it was a holiday on which his son told that he had to arrange machine and labour. His son went in his Honda Jazz car bearing no. DL4CAN3554. On the same day at about 7 or 8 PM, he received a call from the mobile of his son Rajesh. His son asked him to give Rs.5 Lacs and that he was sending one person to collect the money. His son further told that the person (who was State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 13 of 75 sent by him) would make call to him before reaching. After about half an hour, he received a phone call from an unknown number and the caller instructed him to reach near petrol pump at Bawana with cash of Rs.5 lacs. Accordingly, he reached near petrol pump at Bawana. One person came there and asked him to hand over the cash of Rs.5 lacs to him. He asked said person about his name and he informed his name as Ajay. He asked that person that he wanted to talk to his son before giving money. Then that person made a call on the mobile phone of his son Rajesh. He spoke to his son Rajesh through the mobile phone of that person (Ajay) and his son asked him to give cash of Rs.5 lacs to that person. His son told him to go home after giving cash to him and that he (deceased Rajesh) would return to the house at about 11 PM or 12 midnight. Thereafter, he gave cash of Rs.5 Lacs to that person who informed his name as Ajay and then he left that place.
13. He further testified that thereafter he again received the phone call of his son Rajesh from his mobile phone and his son enquired as to whether he had left State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 14 of 75 that place or not. At that time he was on the way to his house and he informed his son Rajesh that he had left that place after giving cash of Rs.5 lacs to that person. His son Rajesh did not return to his house till 11 PM so he made a call on his mobile number, however, his mobile phone was responding as switched off. He made call on the mobile number of that person to whom he had given cash of Rs.5 lacs and his mobile was also switched off. His son Rajesh did not return to house during night so he made a call to his another son PW6 Dharamvir in the morning. PW6 was in his factory situated at Gurgaon, at that time. He told PW6 that Rajesh did not return in the night. Then PW6 came to his house at Qutubgarh, Delhi. He told PW6 about the receiving of calls from Rajesh and from Ajay and about giving the cash of Rs.5 Lacs to Ajay. He made call at no.100 and then he alongwith PW6 went to PS Kanjhawala and informed police about aforesaid facts. His statement Ex.PW7/A was recorded by police. FIR was registered by police on his statement. He and his son PW6 Dharamvir made efforts to trace Rajesh but he could not be traced.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 15 of 75
14. PW7 further testified that on 28.07.2014 at about 5.00 pm, he received a phone call from PS K.N. Katju Marg and he was enquired about Honda Jazz car belonging to his son Rajesh and about his name. Thereafter, he was directed to reach PS K.N. Katju Marg immediately. At the time of receiving the call, he was out of his house for purchasing milk. After purchasing milk he came to his house. In the meantime, two police officials also reached his house and they asked him to reach PS K.N. Katju Marg. Thereafter he left his house and crossed some distance then those police officials informed him that his son Rajesh has expired. He could not go to PS as he was in a state of shock after hearing the news of death of his son. He came to his house as he was nearby and then informed his wife regarding death of Rajesh. He also made call to his son Dharamvir and informed him regarding death of Rajesh and also asked him to reach PS K.N. Katju Marg, Sector16, Rohini. He alongwith his grandson and other 23 persons went to PS K.N. Katju Marg. Then police officials took him to DDA Market, Sector17, Rohini. There he saw Honda Jazz car State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 16 of 75 of his son parked. A foul smell was coming from inside the car. Police opened the car and he saw that there was dead body of a male in decomposed state and the dead body was not identifiable. He identified the dead body with the clothes of his son. Thereafter, police shifted the dead body of his son Rajesh to the mortuary of Sanjay Gandhi Memorial Hospital. He returned to his house. Witness again stated that after registration of FIR, police officials also visited his house and enquired from him as to whether he has any suspicion on any person or not.
15. PW7 further testified that after about 2025 days of the incident, he received information from police that offenders were apprehended. Police enquired from him as to whether he can identify that person who took money of Rs.5 lacs from him. He told police that he can identify that person. Police asked him to reach Rohini Jail to identify that person. On 15.09.2014 he went to Rohini Jail where IO met him. There they received information that TIP of accused was not to be conducted on that day. Thereafter on 16.09.2014 he was called in Rohini court by police to join the TIP of one gold ring. He State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 17 of 75
was called inside the chamber by ld. Magistrate. He
identified the gold ring which his son Rajesh used to wear, before Ld. MM. The alphabet 'R' was engrossed on the ring of his son. His signatures were also obtained on the TIP proceedings. He proved the TIP proceedings as Ex.PW7/B.
16. He further testified that after the TIP proceedings when he alongwith police officials was moving towards court no.113 in Rohini court premises, there he saw two persons with police officials. He identified one of those persons by stating that he was the same person who disclosed his name as Ajay and took cash of Rs.5 lacs from him. Police officials informed him that the real name of that person was Rajesh @ Sonu and not Ajay. He further testified that on 25.07.2014 he took cash of Rs.2 lacs from his daughter in law Nirmala and Rs.1.5 lacs from his neighbour Suresh and rest amount of Rs.1.5 lacs was already with him in his house. After arranging the amount of Rs.5 lacs as aforesaid, he went to Bawana for giving the same as per instructions of his son Rajesh. All currency notes were in the denomination of Rs.500/.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 18 of 75
17. After the arrest of accused persons, he was informed by police regarding recovery of Rs.4 lacs and gold ring of his son Rajesh. He applied before the court for getting released the amount of Rs.4 lacs, gold ring and car. All the aforesaid articles were got released by him on superdari. The superdarinama of the car no. DL4CAN3554 was proved as Ex.PW7/C and the Panchnama of the car as Ex.PW7/D.
18. PW8 Suresh Kumar Rohilla, is the neighbour of PW7. He testified that on 25.07.2014 in the evening hours, PW7 Prahlad came to his house and asked for Rs.1.50 lakhs. He handed over the said amount to PW7. Later on he came to know that son of PW7 had expired.
19. PW9 Sunil Kumar, is the jeweller who had manufactured the ring for deceased Rajesh. He proved the valuation report of gold ring as Ex.PW9/A, gold ring as Ex.P2 and photograph of gold ring as Ex.PW9/B.
20. PW10 HC Rajbir Singh was working as MHC(M) in PSKanjhawala during the relevant date and time. He proved the relevant entries made in register no. 19 as Ex.PW10/A and Ex.PW10/B. State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 19 of 75
21. PW11 HC Rajkumar was working as MHC(M) on 18.08.2014. He proved the relevant entries made in register no. 19 as Ex.PW11/A, Ex.PW11/B and Ex.PW11/C respectively.
22. PW12 Sh. Vipin Kharb, is the then Metropolitan Magistrate, who conducted the TIP proceeding of accused Rajesh @ Sonu @ Amit. He also conducted TIP proceedings of gold ring. He proved the application for conducting TIP of accused Rajesh as Ex.PW12/A and TIP proceedings of accused as Ex.PW12/B. Accused refused to undergo TIP proceedings stating that his photographs were taken by police. He warned accused that an adverse inference may be drawn against him upon his refusal. Yet the accused refused.
23. PW13 Sh. Balu Ram Gupta, testified that in the month of September 2014, at about 2.30 pm or 3.00 pm, he came to chemist shop in DDA Market, Sector17, Rohini. He saw white colour Honda car was stationed in front of DDA market and foul smell was emanating from the said car. He dialled at 100 number. After some time police officials came and checked the car. A dead body of State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 20 of 75 a male was lying in between the space behind the driver seat and rear seat of car.
24. PW14 Vijay Kumar was running a chemist shop by the name and style of Sushil Medicos in DDA Market at Sector17, Rohini. He deposed to the effect that PW13 had dialled at 100 number from his mobile number.
25. PW15 Inspector Manohar Lal, is the draftsman who had prepared the scaled site plan Ex.PW15/A.
26. PW16 ASI Rawat Singh, testified that on 28.07.2014 he was posted as ASI in PS K.N.K. Marg. On that day he was on emergency duty. On that day he received the copy of DD No.60B from Duty Officer. It was informed vide DD No.60B that one car bearing no. DL4CAN3554 Honda white colour was parked near DDA market and probably there was dead body in the car as foul smell was emanating. He proved the attested copy of DD No.60B as Ex.PW16/A. Thereafter, he alongwith Ct. Satbir went to the spot i.e. DDA Market, Sector17, Rohini. He found the car bearing abovesaid registration number was parked near DDA market. The car was checked. Dead body of a male in highly decomposed state State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 21 of 75 was found lying in between the front and rear seat of the car. It was covered with a thick sheet. He conveyed the information to the senior officers and also informed the crime team. PW1 ASI Ram Kumar, I/C Crime team alongwith his staff reached the spot and inspected the spot. The spot was got photographed. SHO PS K.N.K. Marg, ACP and other staff also reached there. It was revealed that the dead body was of one Rajesh s/o Prahlad Singh, r/o Lamba Pana, Qutub Garh, Delhi. It was also revealed that an FIR No. 571/14 U/s.365 IPC was already registered with PS Kanjhawala. So information regarding the dead body was also given in PS Kanjhawala. Inspt. Tarif Singh alongwith SI Kamal and other staff from PS Kanjhawala also reached the spot. He got preserved the dead body in the mortuary of Sanjay Gandhi Memorial Hospital. He handed over the report of PW1 ASI Ram Kumar, I/C Crime Team to SI Kamal. SI Kamal Singh prepared the site plan at his instance. SI Kamal Singh started conducting the investigation of the case FIR No. 571/14 PS Kanjhawala. Thereafter, he returned to PS K.N.K. Marg and made State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 22 of 75 arrival entry vide DD No. 86B mentioning that DD No.60B was transferred to PS Kanjhawala. He proved the attested copy of DD no. 86B as Ex.PW16/B. He further testified that on 29.09.2014 Inspt. Tarif Singh came to PS K. N.Katju Marg. He along with him again went to the spot and showed him the crime spot.
27. PW17 W.Ct. Anit, testified that on 28.07.2014, she was posted as constable CPCR, PHQ, New Delhi. On that day at 15:55:02 hours one call was received from mobile no. 9968951583. The informer informed that probably one dead body was lying inside a car of white colour Honda bearing no. DL 4C AN 3554 at DDA Market, Sector17, Rohini. The information was noted and concerned PCR van was deputed to attend the call. She proved the PCR form as Ex.PW17/A.
28. PW18 constable Pramod, had recorded DD no. 60B regarding an information that in Sector17, DDA Market in vehicle No. DL 4C AN 3554 there was some smell emanating and probably it was from some dead body. He proved the said DD as Ex.PW18/A.
29. PW19 constable Lalit Kumar, recorded DD no. 64 State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 23 of 75 to the effect that an information was received from PW25 ASI Anil Kumar, Special Staff to the effect that one Anil S/o Daya Shankar and Rajesh @ Sonu S/o Pawan Singh have been arrested on 04.09.2014 u/s 41 Cr.PC and that they have made confession about their involvement in the present case. He proved the said DD as Ex.PW19/A.
30. PW20 constable G. Munde, had deposited the case property to FSL vide RC No. 152/21/14. Thereafter, he obtained the acknowledgment receipt from FSL.
31. PW21 constable Anil, had deposited the case property to FSL vide RC No. 132/21/14. Thereafter, he obtained the acknowledgment receipt from FSL.
32. PW22 HC Narayan Singh testified that on 26.07.2014, he was posted as HC in CPCR, PHQ. His duty hours were from 8.00 am to 2.00 pm. On that day at 13:52:45 hours, a call from mobile no. 9711193997 was received and the caller Prahlad Singh informed that his son Rajesh "missing hai last night mein mobile no. 9912675684 wala ladka rupees five lacs le gaya hai. Abhi tak nahin aaya hai Kanjhawala". The said information State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 24 of 75 was recorded by him and dispatched to console room for its further transmission. He proved the certificate u/s 65B of Indian Evidence Act, issued by SI Harish Chander Pathak, Nodal Officer, CPCR as Ex.PW22/A and PCR form as Ex.PW22/B.
33. PW23 HC Om Prakash, is the duty officer in the present case. He testified that on 26.07.2014 at about 3.30 pm, he received one rukka from SI Kamal Singh. On the basis of said rukka he registered FIR no. 571/14, u/s 365 IPC through computer operator. He obtained print out of FIR. He made endorsement on the rukka and then handed over the copy of FIR and original rukka to constable Gajraj for handing over the same to SI Kamal. He proved the copy of FIR as Ex.PW23/A and his endorsement on the rukka as Ex.PW23/B.
34. PW24 Ms. Pinky @ Mamta is the wife of deceased Rajesh. She testified that deceased left home on 25.07.2014. She also identified clothes seized from dead body of deceased as being worn by him at the time of leaving home.
35. PW25 ASI Anil Kumar testified that on 04.09.2014, State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 25 of 75 he was posted as ASI in Spl. Staff Outer District. On that day at about 2.50 pm, he along with HC Neeraj, constable Sandeep, HC Parvinder, HC Naresh, HC Raj Kumar, constable Rajbir and constable Kapil were present at Shahbad Dairy chowk for collecting secret information in connection with the present case. At about 2.55 pm one secret informer came there and informed him that two persons who had committed murder of one Rajesh in the month of July 2014 and left his dead in the car in Sector 17, Rohini, Delhi would come near Sanskriti Apartment, Sector28, Rohini, Delhi after some time. He conveyed this information to his senior officers and they directed him to take action as per law. He requested 45 passersby to join the raiding team but none joined and they left the place without disclosing their identity. Notice could not be served upon them due to paucity of time. Thereafter, all members of raiding party along with secret informer reached near Sanskriti Apartment, Sector28, Rohini at about 3.053.10 pm. There also he requested some passersby to join the proceedings but none joined and left the spot without disclosing their names and addresses.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 26 of 75 Thereafter, they took their position and started waiting for offenders. At about 3.30 pm one Platinum motorcycle was seen coming from the side of village Prahladpur. The secret informer pointed out that motorcycle and left the place. Thereafter, he along with his staff stopped that motorcycle. There were two persons on that motorcycle. The driver disclosed his name as Rajesh @ Sonu @ Amit R/o Shahbad Diary and pillion rider disclosed his name as Anil R/o Kishan Colony, Prahladpur. He interrogated both accused persons during which they confessed that they kidnapped Rajesh and demanded Rs.5.00 lakhs and committed his murder. He arrested both accused persons u/s 41.1 (a) Cr.PC.
36. He proved the arrest memos of accused persons namely Rajesh @ Sonu @ Amit and Anil Kumar as Ex.PW25/A and Ex.PW25/B. He also conducted the personal search memo of both the accused persons vide memos Ex.PW25/C and Ex.PW25/D. Accused Rajesh was having a golden colour ring in his finger. There was a design of alphabet R on the said ring. He disclosed that this ring was taken out by him after giving beatings to State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 27 of 75
Rajesh (since deceased) on 25.07.2014 and after
committing his murder along with his associate Anil. He verified about the facts disclosed by accused Rajesh from PS Kanjhawala and it was informed that an FIR no. 571/14 u/s 365/302 IPC was already registered there. This ring was sealed by him in a pullanda with the seal of AK and taken into police possession vide seizure memo Ex.PW25/D. He further seized the platinum motor cycle bearing no. PB 03V 6466, on which both the accused persons came to the spot vide seizure memo Ex.PW 25/F. Accused Rajesh disclosed that this motorcycle was used by him for collecting Rs. 5 Lacs from the father of deceased on 25.07.2014. he interrogated both the accused persons and recorded their respective disclosure statements vide Ex.PW25/G and Ex.PW25/H respectively.
37. He further testified that during interrogation both the accused persons disclosed about the place where they had committed murder of Rajesh. The place disclosed by both the accused persons was flat no. 1303, ground floor, GH1, Sanskriti Apartments, Sector28, Rohini, Delhi.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 28 of 75 Thereafter, both the accused persons led the police party to the abovesaid flat. The key of the lock of the said flat was taken out by accused Rajesh and flat was opened. There was a bed in one of the room of this flat. Both the accused persons disclosed that they had given beatings to Rajesh (since deceased) on that bed and during that time some blood came out from the finger of Rajesh (since deceased). There were some blood stains on the mattress lying on the bed. This mattress was lifted by him and he prepared parcel of this mattress and sealed with the seal of AK and same was taken into police possession vide seizure memo Ex.PW25/I. Both the accused persons further disclosed that after the beatings Rajesh (since deceased) turned unconscious and they drowned his head into a bucket full of water due to which he died. Both the accused persons got recovered that bucket made up of plastic having white colour. This bucket was taken into police possession vide seizure memo Ex.PW 25/J. Thereafter, both the accused persons disclosed that they had spent part of the ransom money of Rs. 5 Lacs and rest cash amount was kept in the house of accused State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 29 of 75 Rajesh. Thereafter, they took them to the house number E7172 first floor, Shahbad Dairy. Accused Rajesh got recovered packets of currency notes in the denomination of Rs. 500/ which were kept beneath a box. There were total 08 packets of the currency notes in the denomination of Rs. 500/ (total Rs. 4 Lacs). All the packets of abovesaid currency notes were sealed by him with the seal of AK and were seized vide seizure memo Ex.PW25/K.
38. He further testified that both the accused disclosed that they could get recover the two mobile phones belonging to deceased Rajesh, which were used by them for demanding ransom from his father. They disclosed that those two phones were kept in the house of accused Anil situated at house no.62/3 street no. 8, Kishan colony, Prahladpur. Thereafter, they went to the house of accused Anil and he got recovered two mobile phones which were kept on the refrigerator. The one mobile phone was of make Idea and other was of Micromax. He prepared one cloth parcel of these two mobile phones and sealed the same with the seal of AK and it was seized State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 30 of 75
vide memo Ex.PW25/L.
39. He further testified that he got conducted medical examination of both the accused Anil Kumar and accused Rajesh @ Sonu @ Amit from SGM hospital and then they were brought to PS Mangol Puri and sent to lock up. All the seized case property was deposited with MHC(M )of PS Kanjhawala as all the articles recovered during proceeding u/s 41.1.(a) Cr.PC and 102 Cr.PC were connected with the present case registered with PS Kanjhawala. He informed about the arrest of both the accused and recovery of case property to the IO of present case namely Inspector Tarif Singh. Thereafter, he along with his staff came to the office of Special Staff and made his arrival entry.
40. He further testified that on the next day i.e. on 05.09.2014 both the accused persons were produced in the Court with Kalandara u/s 41.1(a) Cr.PC and 102 Cr.PC which was exhibited as Ex.PW25/M. During his examination he identified the case property.
41. PW26 HC Neeraj Rana, joined the investigation with PW25 Anil Kumar.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 31 of 75
42. PW27 constable Satish Kumar, had joined the investigation with IO Inspector Tarif Singh on 05.09.2014. He proved the arrest memo and personal search of accused Anil witnessed by him as Ex.PW27/A and Ex.PW27/B respectively.
43. PW28 constable Satnarayan, had joined the investigation with IO Inspector Tarif Singh on 05.09.2014. He proved the arrest memo and personal search of accused Rajesh @ Sonu @ Amit witnessed by him as Ex.PW28/A and Ex.PW28/B respectively.
44. PW29 SI Kamal Singh is the first IO in the present case. He testified that on 26.07.2014 at about 2.00 pm on the instructions of SHO, copy of DD no. 23A was given to him for investigation. He telephonically contacted the caller and he informed him that he had to reach PS Kanjhawala. He met complainant PW7 Prahlad Singh and recorded his statement. Complainant informed him about missing of his son Rajesh and also informed that his son asked him to deliver Rs.5.00 lakhs to a person sent by him. He made endorsement Ex.PW29/A on the statement of complainant and recommended the same for State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 32 of 75 registration of FIR u/s 365 IPC. He handed over tehrir to duty officer for registration of FIR. Thereafter, he along with Dharamvir i.e. elder son of complainant, HC Anil and constable Gajraj went to Narela for investigation but nothing was found there. Thereafter, they went to the house of complainant. He met wife of deceased Rajesh and complainant and recorded their statement. Then, he along with HC Anil and constable Gajraj returned to police station.
45. He further testified that on 28.07.2014, in the evening hours he was informed regarding a car which was found stationed in the area of PSK.N. Katju Marg. It was also informed that foul smell was coming from the car. He along with HC Anil and constable Gajraj went to a park near garbage dumping area in Sector 16 and 17, Rohini. SHO PS K.N. Katju Marg, ACP and other police staff were already present at the spot. He found a Honda Jazz car bearing no. 3554 stationed there. A decomposed dead body covered with a blanket/cloth was lying inside the car and insects were also there on the dead body and in the car. The crime team officials were also present and State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 33 of 75 were inspecting the spot. PW7 complainant Prahlad Singh along with his son was also present at the spot. PW7 identified the dead body as of his son Rajesh and also identified the said Honda Jazz car as belonging to his son. He got shifted the dead body to the mortuary of SGM hospital through constable Gajraj. The car was seized vide seizure memo Ex.PW29/B. He also prepared site plan Ex.PW29/C of the place of recovery of dead body in the car at the instance of ASI Ravat Singh from PS K.N. Katju Marg.
46. He further testified that on 29.07.2014, he went to mortuary of SGM hospital. He got conducted inquest proceedings. He filled form no. 25.35 i.e. request form for conducting autopsy on the body of deceased Rajesh and also wrote brief facts. He proved the said documents as Ex.PW29/D, Ex.PW29/E and Ex.PW29/F respectively. The dead body was identified by Dharamveer and Hari Ram. He also got conducted the postmortem on the dead body and thereafter dead body was handed over to his relatives. After postmortem, sealed parcels containing viscera, blood samples and clothes of deceased was State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 34 of 75 handed over by doctor which were seized vide seizure memo Ex.PW29/G. All exhibits were deposited with MHC(M). He further testified that he obtained call detail record of two numbers i.e. one used by the complainant and the other used by the person who had made call to complainant; obtained postmortem report; got deposited sealed exhibits to FSL through constable Anil. Thereafter, on 04.09.2014, an information was received from Special Staff regarding arrest of two persons who have disclosed about commission of present offence. Further investigation was assigned to Inspector Tarif Singh by the order of SHO.
47. PW30 Inspector Tarif Singh is the second IO to whom the further investigation was handed over on 05.09.2014. He has deposed on the lines of chargesheet filed by him.
48. PW31 Dr. Sarabjeet Singh, Sr. Scientific Officer Biology, FSL, Rohini had proved his detailed report as Ex.PW31/A.
49. Vide statements dated 20.08.2016, both accused persons admitted the reportes prepared by PWs Dr. State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 35 of 75 Sarabjit Singh Sandhu, Sr. Forensic/Chemical Examiner (Bio/DNA), Mr. Santosh Tripathi, Sr. Scientific Officer, Chemistry, FSL, Rohini, Dr. Manoj Dhingra regarding subsequent opinion on PM number 713/14, Nodal Officer Vodafone Mobile Services regarding mobile phone number 9711193997, Nodal Officer Reliance Communication regarding mobile number 9312675684 and Nodal Officer Idea Cellular regarding mobile phone number 8750033000. Thereby the call detail records of mobile phones, the DNA sampling reports through which the blood DNA of deceased was matched with his father and with the blood found on the mattress recovered from Flat no. 1303, PocketGH1, Sector28, Rohini and viscera examination report etc. were admitted by both accused persons.
50. The entire incriminating evidence was put to accused persons at the time of recording of their statement u/s 313 Cr.PC. Accused persons denied incriminating evidence against them and stated that they have been falsely implicated in the present case.
51. Accused Anil chose not to lead evidence in defence.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 36 of 75 Whereas, accused Rajesh led evidence in defence and has produced three witnesses in his defence.
52. DW1 Sh. Shyam Sunder, Junior Judicial Assistant, posted in the court of learned CMM West District had produced judicial file of case FIR No. 130/11 PS Crime Branch, u/s. 420/419/468/471/120B of IPC, Case ID No. 61031/2016, pending in the court of Sh. Ajay Singh Shekhawat, Ld. CMM, West District, Tis Hazari, Delhi. As per said FIR there are two accused i.e. Rajesh S/o. Pawan Singh , R/o. E7172, Shahbhad Dairy, Delhi and the other one Rajesh Kumar Singh S/o. Prahlad Singh R/o. 273, Qutub Garh, Delhi39. The accused Rajesh S/o. Pawan Singh was arrested on 13.05.2011 whereas Rajesh S/o. Prahlad Singh was arrested on 30.05.2011 in case FIR No. 130/11.
53. DW2 Virender testified to the effect that he do not remember the year, however stated that it was 09 th month or 02nd or 03rd day of month, he saw a long vehicle of white colour had come in his street and 4 persons alighted therefrom. One old man also alighted from the said car and inquired from him about the house of State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 37 of 75 accused Rajesh. He told him the house of accused Rajesh. The three other persons who were in civil dress had called accused Rajesh; accused Rajesh came down from his house and was taken in the said long vehicle by them.
54. DW3 Sh. Raj Babu is the brother of accused. He deposed that 34 personells came in civil dress to his house and inquired about his brother Rajesh. They told him that they wanted to inquire from his brother Rajesh about one old case pending against him. He called his brother. Those officials took accused Rajesh to police station on the pretext of some inquiry and since then his brother is in custody.
55. Lengthy final arguments were addressed by learned Sh. Pankaj Kumar Ranga, learned Addl. PP for State, learned LAC Sh. Ashish Dahiya for accused Rajesh and Sh. A.K. Chaddha for accused Anil.
56. Learned Addl. PP has submitted that prosecution has established that deceased was confined by accused persons at Flat No. 1303, PocketGH1, Sector28, Rohini. Hence, offence u/s 342 IPC against both accused persons stands proved. He has further argued that accused gave State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 38 of 75 beatings to deceased in that flat and forcibly removed gold ring of deceased and therefore offence u/s 392 IPC against both accused is also proved. He has further argued that as per testimony of PW7 deceased Rajesh had gone to his factory situated at Bawana but blood stained mattress was recovered from the flat no. 1303, which proves that deceased was forcibly compelled or was by deceitful means induced to go to aforesaid place. Hence, learned Addl. PP submits that prosecution has also proved that deceased was abducted by accused persons with intent to secretly and wrongfully confine him, which proves offence u/s 365 IPC.
57. Learned Addl. PP has fairly conceded that considering the testimony of PW7 and other witnesses, there is no evidence to prove that demand of Rs.5.00 lakhs was made by accused Rajesh from PW7 under some compulsion or threat to PW7 or to his deceased son. Sh. Ranga therefore admitted that ingredients of section 364A are not satisfied.
58. Learned Add. PP has further fairly conceded that as per testimony of PW4 Dr. Manoj Dhingra, no opinion to State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 39 of 75 the exact cause of death could be given due to advance decomposition of body. He concedes that in the absence of exact cause of death of deceased Rajesh, it cannot be said that death was caused by doing any act with the intention of causing death or with the intention of causing bodily injury, likely to cause death or by causing bodily injury sufficient in the ordinary course of nature to cause death or by doing such act which would in all probabilities had caused death of deceased Rajesh.
59. Sh. Ranga has therefore conceded that ingredients of section 302 IPC are also not satisfied.
60. Sh. Ranga has however submitted that recovery of mattress having blood stains of deceased from Flat No. 1303, PocketGH1, Sector28, Rohini along with water bucket at the instance of both accused persons and the recovery of mobile phone of deceased at the instance of accused Anil is sufficient to prove criminal conspiracy between two accused persons to illegally confine the deceased to do offence against him.
61. On the other hand learned LAC for accused Rajesh and Sh. Chaddha for accused Anil have submitted that State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 40 of 75
no charge has been proved against either of accused.
They argued that testimony of PW7 is not trustworthy and PW7 has concealed the fact that accused Rajesh was earlier known to him. It is further argued that facts and circumstances suggest that PW7 already knew accused Rajesh prior to the alleged incidence. It is also argued that prosecution has failed to establish that any money was delivered by PW7 to accused Rajesh. It is submitted that even the CDR location of accused Rajesh or of PW7 or of deceased has not been collected. It is further argued that there is no recovery of any weapon of offence. It is also argued that even the alleged recovery of ring from the finger of deceased Rajesh, is not trustworthy because PW9 Sunil Kumar, the jeweller who allegedly prepared the ring in his crossexamination stated "The ring was wrapped with a cloth when it was taken out from almirah. Probably it was lying in a match box". He submits that alleged gold ring of deceased was not kept in the malkhana and was rather produced by IO from the almirah which suggest the possibility of compromising with the case property i.e. gold ring. He further submits State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 41 of 75 that no public witness was joined in any recovery. He therefore argues that link evidence to connect accused persons in the present case is not beyond reasonable doubt and both accused persons are entitled for benefit of doubt.
62. From the arguments advanced by learned counsels for parties and facts and material on record, following points for determination are framed u/s 354 (1) (b) Cr.PC: POINTS FOR DETERMINATION:
1) Whether testimony of PW7 and other public witnesses in the present case is not trustworthy?
2) Whether the recovery of incriminating articles in the present case is not trustworthy?
3) Whether prosecution is able to prove the criminal conspiracy between two accused persons for committing offence in the present case?
4) Whether prosecution is able to prove the circumstantial evidence against either of accused, if so, against which of accused and for which of the offence(s)?
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 42 of 75
1. WHETHER TESTIMONY OF PW7 AND OTHER PUBLIC WITNESSES IN THE PRESENT CASE IS NOT TRUSTWORTHY :
63. In order to support their arguments that testimony of PW7 is not trustworthy, learned counsels for accused persons have drawn the attention of court to the testimony of PW6 Dharamvir.
64. In his crossexamination, PW6 admitted "From the accused persons present in the court today, I recognize only one accused namely Rajesh (correctly identified). I recognize this accused since this accused and my deceased brother Rajesh were coaccused in one case of cheating and both of them remained in jail and that case together with some more accused persons. I know accused Rajesh since the year 2009. Accused Rajesh and my deceased brother Rajesh were not friends, however, they knew each other".
65. Sh. Dahiya has submitted that deceased and accused Rajesh were known to each other previously as both of them were coaccused in case FIR no. 130/11 PS Crime Branch, u/s 420/419/468/471/120B IPC. In this State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 43 of 75 regard Sh. Dahiya has also relied upon testimony of DW1 Sh. Shyam Sunder, Junior Judicial Assistant, who has brought case file of FIR no. 130/11 (supra) from the court of learned CMM, West District, Tis Hazari Court. DW1 testified that deceased and accused Rajesh were co accused in the said FIR.
66. Sh. Dahiya has argued that in the facts and circumstances it is impossible that PW7 would not have known accused Rajesh. PW7 disclosed the name of persons whom he delivered money as Ajay. Sh. Dahiya submits that in the facts and circumstances, accused Rajesh has been subsequently implicated by police instead of some Ajay, in order to solve its case.
67. Court is in agreement with the submissions of learned Addl. PP that merely because accused Rajesh was coaccused with deceased in case FIR no. 130/11 (supra), it cannot be concluded that PW7 knew accused previously. Even PW6 has stated that he had seen accused Rajesh, when he was brought to their house by police in a earlier cheating case. PW6 further stated that he had never seen accused Rajesh visiting his house. In State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 44 of 75 his crossexamination PW6 stated "At the time when police brought accused Rajesh to our house regarding the earlier case of cheating, my father was not present in the house". Thus, in view of the testimony of PW6, it cannot be said that PW7 i.e. father of PW6 had any occasion or chance to meet accused Rajesh. There is no specific suggestion to PW6 or PW7 that PW7 had met accused Rajesh on any occasion or had a chance to meet him. In such circumstances, it cannot be said that PW7 had known accused Rajesh prior to the incident. Hence, it cannot be further said that had the accused visited petrol pump at Bawana, PW7 could have immediately identified him. There is no evidence on record to suggest that PW7 had ever met accused Rajesh prior to the incidence of delivery of Rs.5.00 lakhs by him to accused. Hence, it cannot be presumed that accused could not have informed his name as Ajay to PW7.
68. Court further do not find any substance in the submissions of learned defence counsels that just because call location of mobile phone of PW7 and that of accused Rajesh was not proved on record, testimony of PW7 State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 45 of 75 becomes untrustworthy. Even if it is presumed for the sake of arguments that IO should have collected location chart of mobile phones of both these persons, this does not render the testimony of PW7 as untrustworthy. Testimony of PW7 has to be tested independently of the investigation unless there is possibility of its being false to cover up lapses in investigation. Nothing has been suggested during the arguments to arrive at conclusion that PW7 had cooked up some story in order to cover up lapses in investigation.
69. It is rightly submitted by learned Addl. PP that there is no reason with PW7 to falsely implicate accused persons in the present case on account of death of his son. The testimony of PW7 rather inspires confidence. On 26.07.2014, PW7 has only recorded the FIR with the allegations that deceased had left his house in the morning of 25.07.2014 and that at about 8.00 pm he received a call from the deceased in which deceased stated that he was sending one Ajay to PW7, and asked PW7 to deliver the amount of Rs.5.00 lakhs to said Ajay. He further reported in the FIR that his son informed him State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 46 of 75 on telephone that he should give amount of Rs.5.00 lakhs to said Ajay at Bawana Petrol Pump. He further reported that after delivery of money his son had assured him that he would return back to home by 1112 midnight. Till the lodging of FIR on 26.07.2014, accused Rajesh was not in picture. As per testimony of PW25 ASI Anil Kumar and the documents prepared by him, both accused persons were apprehended only on 04.09.2014. Submissions of learned defence counsel that accused Rajesh was previously known to PW7 are not substantiated from the stand taken by accused in his judicial TIP proceedings.
70. PW12 Sh. Vipin Kharab, learned MM has proved the TIP proceedings of accused Rajesh as Ex.PW12/A. Witness categorically deposed that accused accused Rajesh @ Sonu @ Amit refused to undergo TIP proceedings stating that his photographs were taken by police. Thereafter, learned MM had categorically warned accused that an adverse inference maybe drawn against him upon his refusal. Yet accused refused to join TIP proceedings.
71. If accused Rajesh was previously visiting the house State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 47 of 75 of deceased or was earlier known to PW7, there was no need of police taking his photographs and showing it to the witness. Hence, in the facts and circumstances there are less chances that photographs of accused Rajesh were taken by police or accused was earlier known to PW7.
72. Accused was arrested by PW25 ASI Anil Kumar from Special Staff, Outer District on 04.09.2014. Information of the same was given to PSKanjhawala. On 05.09.2014, said information was recorded by PW19 constable Lalit Kumar through DD No. 64, PS Kanjhawala. Thereafter, information was passed on to PW30 IO Inspector Tariff Singh. As per testimony of PW25 ASI Anil Kumar, IO PW30 Inspector Tariff Singh had reached directly to the court. In between accused was taken to PSKanjhawala. After reaching court, where accused was produced in muffled face, Inspector Tariff Singh moved an application for TIP of accused persons vide Ex.PW12/A. Thereafter PW30 interrogated both accused persons, formally arrested and recorded their disclosure statements. Thereafter both accused persons were sent to judicial custody by the court on the same State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 48 of 75 day. There is no suggestion to either PW25 or PW30 that accused were not produced in the court on 04.09.2014, in the manner and at the time narrated by these witnesses. There is further no suggestion that photographs of accused were taken by either PW25 or PW30 or at their instance. There is further no suggestion that accused was not produced in muffled face. Hence, from his production in court on 05.09.2014, till fixing of TIP proceedings of accused, accused remained in judicial custody. Again there was no chance of accused being seen by PW7 or photographs of accused being taken by police. Hence, it is rightly submitted by learned Addl. PP that refusal of TIP by accused is not justified in the facts and circumstances of case and adverse inference should be drawn against accused. The subsequent stand of accused that PW7 already knew him and thereafter refusal of TIP is justified is contradicted by his earlier stand. The testimony of PW7 cannot be disbelieved by accepting such argument on behalf of accused. Hence, submissions that PW7 knew accused Rajesh previously and therefore in his statement State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 49 of 75 he could not have referred him as 'Ajay' is an after thought.
73. Testimony of PW7 cannot be further disbelieved as regards of arrangement of money by him. PW7 categorically stated that at the relevant time he was running a factory of manufacturing of school bags for his deceased son. PW6, brother of deceased was also running separate garment export business and his factory was separately located at Gurgaon. PW7 stated that out of the amount of Rs.5.00 lakhs, Rs. 1.50 lakhs was lying with him. He took Rs.2.00 lakhs from PW5 i.e. sister in law of deceased and wife of PW6. He further stated that he took amount of Rs.1.50 lakhs from his neighbour PW8. Considering the status of parties, owning of factories by them and their explanation that they usually keep some amount with them for meeting the expenses, cash in hand of Rs.1.50 lakhs, 2 lakhs cannot be said to be unusual. Testimony of PW7 qua receipt of amount from his daughter in law and from his neighbour is corroborated by testimony of PW5 and PW
8. PW5 has deposed that she had given the amount of State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 50 of 75 Rs.2.00 lakhs to PW7 on his demand. Similarly, PW8 has also stated that he had cordial relations with PW7 and both of them used to take money from each other in case of need. He also testified that on 25.07.2014, in the evening hours PW7 had come to his house and that he handed over cash of Rs.1.5 lakhs to him.
74. Hence, even the arrangement of money and availability thereof by complainant PW7 is not doubtful. Further receipt of call by PW7 from his deceased son is corroborated by call detail records of mobile phones which further strengthens testimony of PW7.
75. Court has already observed that there is nothing to suggest that PW7 knew accused Rajesh previously. After receipt of call from his son, as per testimony of PW7 he had gone near Petrol Pump at Bawana with cash of Rs.5.00 lakhs. There accused Rajesh met him and asked him to hand over the said cash. At that time accused Rajesh had informed his name as Ajay. After talking to his son through mobile phone of said Ajay (accused Rajesh), PW7 handed over money to accused Rajesh. There is no suggestion to PW7 that accused Rajesh had State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 51 of 75 not visited near Petrol Pump near Bawana on the particular day and time. There is no defence that accused Rajesh was present elsewhere than the spot on the day of delivery of alleged money. There is no enmity between PW7 and accused Rajesh to suggest any false implication by PW7. Rather PW7 has lost his son and the court finds no justification that he would implicate any innocent person. There is no major contradiction in the testimony of this witness to suggest that he was deposing falsely. Rather the conduct of accused Rajesh reflecting his apprehensiveness since beginning. Accused Rajesh had refused judicial TIP with the pretext that his photographs were taken by police. Though there is nothing to suggest on record that IO had any occasion to take his photographs. Further the contrary defence taken by him at different steps of investigation/proceedings raises serious suspicion about his involvement in the present case. As such conduct of accused strengthens the credit and trustworthiness of testimony of PW7 and other public witnesses. Suggestions of behalf of accused that accused was in visiting terms to the house of State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 52 of 75 deceased have been denied by PW5, sister in law of deceased. She had categorically stated that she had not seen accused Rajesh any point of time prior to her testimony in the court. Effect of testimonies of witness is not being discussed herein below. However, it is held that from the facts and circumstances of case, prima facie testimonies of public witnesses are trustworthy. This point is accordingly decided.
2) WHETHER THE RECOVERY OF INCRIMINATING ARTICLES IN THE PRESENT CASE IS NOT TRUSTWORTHY :
76. Learned counsels for accused persons have argued that alleged recovery effected in the present case is not reliable because PW25 has not followed the mandate of section 100 (4) Cr.PC and no public witness was joined with the alleged recoveries.
77. It is argued by learned defence counsels that accused persons were allegedly apprehended from near Sanskriti Apartment, Sector28, Rohini at about 3.30 pm. IO has categorically admitted in his crossexamination State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 53 of 75 that there was security guard on duty near the gate of Sanskriti Apartment. It is argued that IO has stated that he had requested some passersby to join the proceedings but none had joined. He submits that explanation given by IO is not reliable because neither names and particulars of those persons, who were asked to join the proceedings is given nor any action was taken for their refusal to join investigation.
78. Learned counsels for accused persons have relied upon in the case of Mohd. Masoom Vs State of NCT of Delhi, Crl. A. 1404/2011, decided on 09.04.2015, Hon'ble High Court of Delhi quoted the observations of Hon'ble High Court in the case of Ram Prakash Vs State 2014 (146) DRJ 629, as follows : "... 16. Mr. Gaur pointed out that while the Appellant was apprehended around 3.30 pm, the formal arrest was recorded at 11 pm i.e. after eight hours. Throughout this period the police remained present at the spot and yet they could not get a single public witness to be associated.
17. This is perhaps the weakest line in the entire case of the prosecution. In his State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 54 of 75 evidence PW9 stated that "he requested 5 6 public persons to join the proceedings but they did not join the investigation." It is not clear who those public persons were. Their names were not noted. In his cross examination PW9 stated "People who were managing the parking were present in the parking. I did not call any person from the parking, any employee of the Railway and the police officials deployed there to join the proceedings."
18. It seems extraordinary that although PW9 and the entire raiding party remaining at the spot i.e. the parking lot of Old Delhi railway Station, well be beyond 11.15 pm, i.e. nearly eight hours (they ultimately left the spot at 11.45 pm to reach the Crime Branch at 12.30 am) they were unable to locate a single public witness including any railway official or any personnel of any other security force to be associated in the proceedings.
19. The trial Court has referred to the decision in Ajmer Singh Vs State of Haryana 2010 (2) RCR (Crl) 132 to hold that the failure to associate independent witness is not fatal to the prosecution case, as long as it is shown that efforts were made and none was willing. However, it is State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 55 of 75 seen that in the said decision the Supreme Court emphasised that it had to be shown that after making efforts, which the Court considers in the circumstances of the case reasonable, the police officer was not able to get public witnesses to associate with either the raid or the arrest of the culprit. In other words in every case it will have to be examined whether serious efforts made by the police to associate public witnesses. In Ram Swaroop Vs State (Govt. of NCT of Delhi) (2013) 14 SCC 235 the Supreme Court found the evidence of the police witnesses "absolutely unimpeachable" and therefore held that the failure to associate independent witnesses did not affect the prosecution case. However, as will be seen hereafter, that cannot be said of the prosecution witnesses in the present case.
20. In the present case as already noticed the entire raiding party remained at the Old Delhi Railway parking lot which is an extraordinarily busy area from around 3.30 pm till midnight. This is a place where apart from security personnel, there are bound to be parking attendants and railway employees as well. The IO in his crossexamination has admitted that he did not make any effort State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 56 of 75 to associate any such member of the security forces (including the railway forces, parking attendants or railway employee). In other words no sincere effort was made.
21. It has almost become a routine practice for the police to state that passersby were asked to join and they declined and went away without disclosing their names. The Court should be way of readily accepting such explanations. In a case where a raid takes place in broad daylight in a busy area, a more convincing explanation has to be offered why despite remaining at the spot for about eight hours the police did not find a single public witness to join the proceedings. (emphasis supplied).
79. Both the learned counsels for accused persons further argued that even at the time of recovery of blood stained mattress and bucket from Flat no. 1303, Sector 28, Rohini, no public witness was joined. It is submitted that the said flat is situated in Sanskriti Apartment and there must have been occupants in other flats. Similar arguments are raised as regards to recovery of mobile phone at the instance of accused Anil Kumar from his State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 57 of 75 house bearing no. 62/3, Gali No. 8, Krishna Colony, Prehladpur, Delhi.
80. It is thus argued that alleged recoveries against accused persons are not reliable and in the absence of recovery of incriminating articles prosecution is unable to prove the circumstantial evidence against either of accused and both accused are entitled for benefit of doubt.
81. It is rightly submitted by learned Addl. PP that every case has to depend upon its own facts and circumstances and there is no general rule that every recovery would be vitiated for nonjoining of independent public witness.
82. In this case there are four sets of recoveries on different occasions and/or places.
83. The first recovery alleged against accused Rajesh is of gold ring of deceased at the time when accused was apprehended. As per testimony of PW25, at the time of his apprehension on 04.09.2014, accused Rajesh was having gold ring in his finger and there was alphabet 'R' engraved on the said ring. It is rightly submitted by State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 58 of 75 learned Addl. PP that first of all in the facts and circumstances there was not sufficient time with PW25 to join public witness. As per his testimony secret information was received by him at about 2.55 pm that person who had committed murder of one Rajesh (deceased) would come near Sanskriti Apartment, Sector 28, Rohini. Thereafter, he conveyed this information to his senior officers. Senior officers directed him to take action as per law. Thereafter he shared the information with his staff i.e. PW26 HC Neeraj, constable Sandeep, HC Parminder, HC Naresh, HC Raj Kumar, constable Rajbir and constable Parveen. Both accused persons arrived at the spot at about 3.30 pm on motorcycle. In the facts and circumstances total time between receipt of secret information and apprehension of accused persons is about 35 minutes. Hence, it appears to be rightly submitted by learned Addl. PP that there was no sufficient time with PW25 to record particulars of the persons who were asked to join investigation. Further no time could have been wasted to take action against those persons otherwise main purpose of apprehension of State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 59 of 75 accused persons could have been frustrated and the entire energy and attention of team could have been diverted to taking action against the persons refusing to join investigation. Otherwise also recovery of gold ring at the time of apprehension of accused Rajesh is a chance recovery. PW25 had information about the arrival of accused but he had no information that accused would be wearing robbed ring. Hence, there was no need for compliance of section 100(4) Cr.PC. Moreover, this recovery cannot be disbelieved because there is no suggestion on behalf of accused Rajesh that he was not apprehended from the place and in the manner testified by PW25.
84. In the case of Jawahar Singh Vs State and Anr, Crl. A. 585/2014, decided on 17.12.2014, Hon'ble High Court of Delhi held as under:
18. As regards the non association of public witnesses at the time of recovery of firearm in the decision reported as (2001) 1 SCC 652 State, Govt. of NCT of Delhi Vs. Sunil & Anr. the Supreme Court held:
"19. In this context we may point State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 60 of 75 out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person "and signed by such witnesses". It must be remembered that a search is made to find out a thing or document about which the searching officer has no prior idea as to where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guesswork that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 61 of 75 team which conducts the search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helterskelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commr., A.P., Hyderabad Vs. Sardar Ali [(1983) 4 SCC 245 : 1983 SCC (Cri) 827 : AIR 1983 SC 1225]. Following observations of Chinnappa Reddy, J.
can be used to support the said legal proposition: (SCC p. 254, para 8) "Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 62 of 75 nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of subsections (4) and (5) of Section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself."
85. PW24 i.e. wife of deceased and PW7 i.e. father of deceased have identified gold ring Ex.P2. PW24 categorically stated that the said gold ring was worn by her husband i.e. deceased when he left the house on 25.07.2014. The said ring was belonging to accused Rajesh has been further corroborated by PW9 i.e. jeweller, who prepared the said ring at the instance of PW7, father of deceased. There is nothing in the cross examination for either of accused as to from where the said ring was planted by PW25. There is no suggestion to PW24 wife of deceased that at the time of leaving the State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 63 of 75 house on 25.07.2014, the deceased was not wearing the said ring.
86. If facts and circumstances are considered as a whole, cumulative effect thereof do not leave any reasonable doubt in the recovery of gold ring.
87. The second set of recovery at the instance of accused Rajesh is alleged to be blood stained mattress and plastic bucket from flat no. 1303, ground floor GH1, Sanskriti Apartment, Sector28, Rohini.
88. As per testimony of PW25 key of the said flat was taken out by accused Rajesh, when the same was opened. There is no suggestion in the entire crossexamination of this witness that accused Rajesh was not taken to the said flat by PW25 or that accused had no taken out key of the said flat or that the flat was not opened in the manner as testified by PW25. Prior to apprehension of accused Rajesh, there was no clue with PW25 about the availability of the blood stained mattress at any place. In the absence of specific rebuttal and the consequent suggestions to the witnesses and other facts and circumstances seen together, court is of the opinion that State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 64 of 75 defence is unable to ingest reasonable doubt into the second recovery of blood stained mattress and bucket from flat no. 1303 at the instance of accused Rajesh.
89. The third set of recovery at the instance of accused Rajesh is alleged to be Rs.4.00 lakhs which was allegedly seized from his H. No. E7172, first floor, Shahbad Dairy. As per testimony of PW25 total 08 packets of currency notes in the denomination of Rs.500/ were recovered from H. No. E7172, first floor, Shahbad Dairy. Again there is no suggestion to the witness that accused was not taken to the said house. In the cross examination of PW25 a suggestion has been given that the amount of Rs.4.00 lakhs was demanded from the father of accused Rajesh so that he may not be falsely implicated in the present case and later on the said amount was planted on accused persons as ransom amount taken by them from the father of deceased. This stand taken by accused in his crossexamination is not corroborated in the statement u/s 313 Cr.PC. Accused neither stated any such fact in his statement u/s 313 Cr.PC nor lead any evidence in defence to this effect.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 65 of 75 Hence, the defence taken by accused in this respect is not believable. There is no reason that such a heavy amount would be falsely planted upon accused. Moreover, currency notes were properly identified by complainant PW7 in his testimony. In his crossexamination complainant specifically identified these currency notes as the same which were delivered by him to accused Rajesh. Complainant had stated that he had identified these notes as they were in a bundle which was handed over by him to accused Ajay, whose actual name was later known as accused Rajesh @ Sonu @ Amit.
90. In the facts and circumstances, even the recovery of currency notes at the instance of accused Rajesh does not appear to be doubtful.
91. The fourth set of recovery is of the mobile phones belonging to deceased Rajesh. This set of recovery does not inspire much confidence. As per testimony of PW25 both accused persons disclosed that they could get recovery of mobile phones belonging to deceased Rajesh. Further both accused disclosed that those mobile phones were kept in the house of accused Anil. Thereafter, State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 66 of 75 accused Anil got recovered two mobile phones which were kept on the refrigerator of his house.
92. It appears to be rightly submitted by learned defence counsel for accused Anil that lone recovery of these two mobile phones is not sufficient to implicate accused Anil in the present case. There is no other evidence against accused Anil except his own disclosure statement and the disclosure statement of coaccused, to connect him with the alleged crime. Recovery of gold ring, mattress and bucket, cash amount of Rs.4.00 lakhs at the instance of accused Rajesh is distinguishable from the recovery of these two mobile phones. It is already observed that there is nothing in the crossexamination of the relevant witness that accused Rajesh was not apprehended in the manner as suggested by PW25 or that he was not wearing the gold ring or that at the time of his leaving home on 25.07.2014, deceased was not wearing the gold ring or that accused Rajesh was not taken to his house at E7172, first floor, Shahbad Dairy for recovery of amount of Rs.4.00 lakhs.
93. Hence, this court is of the opinion that recovery of State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 67 of 75 two mobile phones at the instance of accused Anil is not beyond reasonable doubt.
3. WHETHER PROSECUTION IS ABLE TO PROVE THE CRIMINAL CONSPIRACY BETWEEN TWO ACCUSED PERSONS FOR COMMITTING OFFENCE IN THE PRESENT CASE :
94. Learned Addl. PP has argued that both accused persons were apprehended together on 04.09.2014. Both had led police parties for recovery of incriminating articles and therefore there is sufficient evidence to prove that they had conspired together to commit offence against deceased Rajesh. He has further submitted that the manner in which crime has been committed in the present case, the same could not have been implemented by a single accused. He has further submitted that single accused could not have committed the crime.
95. Court is in agreement with the submissions of learned defence counsels that prosecution has miserably failed to prove any criminal conspiracy between the two accused in the present case. Merely because accused State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 68 of 75 persons were travelling together on 04.09.2014, it cannot be presumed that they had conspired together to commit crime alleged in the present case. There is nothing on record to suggest that accused Anil had met accused Rajesh prior to 25.07.2014, when deceased had gone missing. There is no physical or electronic contact or conversation brought on record to suggest that both accused persons were in touch prior to 25.07.2014 to afford an opportunity for criminal conspiracy. Recoveries of gold ring from the finger of accused Rajes, mattress and bucket from Flat no. 1303 and recovery of Rs.4.00 lakhs from H. No. E7172, Shahbad Dairy, cannot be fastened upon accused Anil. Recovery of gold ring was effected from the body of accused Rajesh, recovery of mattress was effected from the flat, lock of which was opened by accused Rajesh and recovery of Rs.4.00 lakhs was also made from the house of accused Rajesh.
96. In the facts and circumstances, except the disclosure statements of accused persons, there is no sufficient material to connect accused Anil with the actual commission or with the conspiracy to commit State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 69 of 75 crime in the present case. This point is accordingly decided and it is held that prosecution has failed to establish criminal conspiracy between the two accused persons for committing offence(s) in the present case.
4. WHETHER PROSECUTION IS ABLE TO PROVE THE CIRCUMSTANTIAL EVIDENCE AGAINST EITHER OF ACCUSED, IF SO, AGAINST WHICH OF ACCUSED AND FOR WHICH OF THE OFFENCE(S) :
97. Public witness PW7 has categorically deposed that deceased had left his house on 25.07.2014 at about 89 am. At around 78 pm, PW7 received a call from deceased and upon his instructions PW7 delivered Rs.5.00 lakhs to accused Rajesh. Court has already held that testimony of PW7 is believable. Even in the cross examination of this witness no contradiction is brought on record. Hence, prosecution is able to prove that on 25.07.2014, accused Rajesh was in contact with deceased till 099.10 pm, when PW7 handed over him case of Rs.5.00 lakhs.
State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 70 of 75
98. Prosecution has further established that cash of Rs.5.00 lakhs was delivered by PW7 to accused Rajesh at the instructions of his deceased son.
99. By testimony of PW1 i.e. Crime Team Incharge, PW2 photographer and PW13, PW16 ASI Rawat Singh, prosecution has further established that the car of deceased was found parked in front of DDA Market, Sector17, Rohini and the body of deceased was lying in between the space behind the driver seat and rear set of the car. Further the dead body was covered with a blanket. The manner and place in which the body of deceased was lying is sufficient to reflect that deceased had not drived the car on his own and his dead body was carried in the car after his death, which was prima facie sufficient to suggest that some offence was committed against the deceased.
100. The recovery of blood stained mattress at the instance of accused Rajesh is sufficient to reflect that till the deceased was alive, some or the other injury was caused upon his body and accused Rajesh was involved with the same. Recovery of gold ring and the money at State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 71 of 75 the instance of accused Rajesh further proves that he had obtained money from the father of deceased and further obtained property i.e. gold ring of deceased.
101. Now as per the disclosure statement of accused Rajesh, he had taken out the ring of deceased after beating him. During this entire process some blood stains of deceased fell on the mattress. Hence, this court is of the opinion that disclosure statement of accused that deceased was beaten by him and some blood fell upon the mattress is admissible u/s 27 Evidence Act in view of the recovery of blood stained mattress at the instance of accused Rajesh. Further the disclosure statement that ring worn by deceased was taken out is admissible in view of the recovery of the gold ring from accused Rajesh.
102. Prosecution has therefore successfully proved that accused Rajesh had beaten up and injured deceased and hit him and took out his gold ring. Prosecution thus appears to have proved offence u/s 392 IPC against accused Rajesh.
103. In view of the conduct of accused Rajesh in receiving money from the father of deceased, making State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 72 of 75 father of deceased to talk with him, recovery of mattress from flat no. 1303 and gold ring from the finger of deceased, there is sufficient circumstantial evidence that deceased was illegally confined at Flat no. 1303, Pocket GH1, Sector28, Rohini and that accused Rajesh was part and parcel of said offence. Hence, prosecution has further able to establish offence against accused Rajesh u/s 342 IPC.
104. This court is of the opinion that prosecution has failed to prove offence u/s 302 IPC against either of accused because neither any weapon of offence was recovered nor the manner in which death of deceased took place has been brought on record. Rather PW4 Dr. Manoj Dhingra stated that no opinion as to the exact cause of death could be given due to advance decomposition of body. Hence, essential ingredients of section 302 IPC are not satisfied. It cannot be said that accused Rajesh had caused death of deceased by doing an act with the intention of causing death or with the intention of causing such bodily injury as he knew to likely cause death or with the intention of causing bodily State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 73 of 75 injury sufficient in the ordinary course of nature to cause death or that accused was having knowledge that in all probability he could have caused death. Hence, in the absence of nature of injures and cause of death offence u/s 302 stands not proved.
105. Similarly section 397 IPC charged against accused is not proved because in the absence of any information qua nature of injuries on the body of deceased, it cannot be said that robbery was committed by accused with an attempt to cause death or grievous hurt. Even section 364A IPC is not proved against accused persons because there is no testimony that at the time of receiving money from his father accused Rajesh had given any threat to cause injury or death to any person.
106. Prosecution has further failed to prove offence of kidnapping or abducting with intend secretly and wrongfully to confine the deceased u/s 365 IPC. Except the disclosure statements of accused persons, there is no evidence to suggest the manner, in which deceased had reached Flat no. 1303, PocketGH1, Sector28, Rohini. Even according to disclosure statement of accused State VS Rajesh and Anr.
FIR no. 571/14PS - Kanjhawala Page no. 74 of 75 persons, they had taken alcohol with deceased, prior to the commission of crime. In such circumstances, it cannot be concluded that the deceased was taken to Flat no. 1303, PocketGH1, Sector28, Rohini, by force or by deceitful means. Hence, offence u/s 365 IPC is also not proved beyond reasonable doubt.
107. Hence, prosecution is able to prove offences u/s 392 and 342 IPC only against accused Rajesh. He is accordingly held guilty u/s 392 and 342 IPC. However, he is acquitted of the charge u/s 302, 394, 364A and 365 IPC.
108. No offence is however proved against accused Anil.
Accordingly, accused Anil is acquitted of all the charges levelled against him.
Announced in the open court
Digitally
on the 06th day of June, 2019 signed by AJAY
AJAY PANDEY
PANDEY Date:
2019.06.07
12:20:48 -0500
(Ajay Pandey)
Additional Sessions Judge (NW)
Rohini Court/Delhi.
State VS Rajesh and Anr.
FIR no. 571/14
PS - Kanjhawala Page no. 75 of 75