Delhi District Court
Through Public Prosecutor Delhi vs Meenu Diwan on 10 July, 2014
SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar
IN THE COURT OF SH. SANJAY JINDAL, ADDL. SESSIONS
JUDGE WEST - 04, TIS HAZARI COURTS, DELHI
Unique Case ID No. : 02401R5107462004
SC NO. 33/1/14
FIR NO. 259/2003
P.S. : Rajender Nagar
U/S : 302/364A/201/120B IPC
IN THE MATTER OF
State
(Govt. of NCT of Delhi)
Through Public Prosecutor Delhi
Versus
1. Meenu Diwan
W/o K. S. Siris,
State vs. Meenu Diwan & Anr. Page No. 1/82
SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar
R/o B4/4, Vasant Vihar,
Delhi.
2. K. S. Siris
S/o Late K.K. Pujari,
R/o B4/4, Vasant Vihar,
Delhi.
3. Amit Saxena
S/o Sh. Satish Saxena,
R/o C349, Block No. 7,
Gole Market, Delhi.
4. Deepak Malhotra
S/o Sh. Prakash Chand Malhotra,
R/o C87, IInd Floor, Duggal Colony,
Khan Pur, Delhi. ............. Accused Persons
Date when committed to the : 05.05.2004
court of Sessions
State vs. Meenu Diwan & Anr. Page No. 2/82
SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar
Date of conclusion of : 29.05.2014
final arguments
Date of final Judgment. : 10.07.2014
J U D G M E N T
1. Brief facts, as per case of the prosecution, are that DD No. 82B P.S Parshant Vihar was initially recorded at about 11.20 pm on 05.12.2003 regarding missing of deceased namely Dr. R.K. Gupta. On 06.12.2003, a complaint was lodged at P.S Rajender Nagar by Sh. J.K. Gupta, brother of deceased to the effect that his brother Dr. R.K. Gupta r/o Apartment no. 89, Priya Apartments, Sector14, Rohini, Delhi left his house at 10.00 am for his work place Sir Ganga Ram hospital on 05.12.2003. At about 07.30 pm, on 05.12.2003, they received a phone call from one of his patient that his condition was serious and he was unable to contact Dr. R.K. Gupta on his mobile phone. Further that, they tried to contact Dr. R.K. Gupta but failed to do so and subsequently on inquiry State vs. Meenu Diwan & Anr. Page No. 3/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar from hospital, they came to know that he (Dr. R.K. Gupta) had left the hospital at 01.30 and since then there was no contact. Further that they informed the police on 100 number and officials from P.S Parshant Vihar came and made inquiries at night and they informed P.S Rajender Nagar at 01.00 am. Further that on 06.12.2003, they received a phone call and unknown caller asked them to pay rupees One crore by tomorrow or to face dire consequences.
On the basis of said information, the police recorded a case u/s 364A IPC and investigation was started. On 08.12.2003, the Ceilo car of the deceased was recovered by the police from Faridabad and it also revealed from the call details that on 05.12.2003, Dr. Gupta called on phone no. 31008342 four times at about 03.00 pm. The said phone was of accused Meenu Diwan. Accused Meenu Diwan, Amit Saxena and Deepak Malhotra were arrested and they disclosed that they have killed Dr. R.K. Gupta by strangulation on 05.12.2003 and burnt his dead body at some place in Gurgoan. Police collected certain circumstantial evidence and also arrested K.S. Shirish, who is husband of Meenu Diwan, who allegedly helped the other accused persons in destruction of evidence. State vs. Meenu Diwan & Anr. Page No. 4/82 SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar After completion of investigation, chargesheet was filed.
2. After consideration, charge for the offences U/s 120B/364A/34, 302/34, 201/34 and 404/34 IPC was framed against accused Meenu Diwan, Amit Saxena and Deepak Malhotra. Charge u/s 201/34 IPC was framed against accused Meenu Diwan and K.S Sirish. Separate charges u/s 120B, 364A/34 and 202 IPC were framed against accused K.S. Sirish. The accused persons pleaded not guilty and claimed trial.
3. At the time of trial, prosecution has examined following witnesses; PW1 Sh. J.K. Gupta PW2 W/HC Renu Bala PW3 Smt. Suchita Sehgal PW4 Inspr. Devender Singh PW5 Ms. Mohini Gupta PW6 Ms. Toshi Bhatnagar PW7 Ct. Arun Kumar PW8 Mrs. Shalini Jha PW9 SI Harish Chander PW10 Sh. Raj Kapoor PW11 Sh. Surender Kumar Gaur PW12 HC A.K. Krishnan PW13 Sh. Krishan Kumar Gupta PW14 Sh. Sunder Lal PW15 Sh. Avdesh Kumar Singh PW16 Sh. Dev Raj PW17 HC Baljit PW18 Dr. Mannu Gupta PW19 Sh. Shiv Singh PW19A HC Jagdish Chand State vs. Meenu Diwan & Anr. Page No. 5/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar PW20 Sh. Rajender Singh PW21 Ct. Veer Pal PW22 Sh. Jitender Dass PW23 Dr. D.N. Bhardwaj PW24 Ct. Bimla PW25 Sh. Babu Khan PW26 HC Ram Charan PW27 Sh. Maman Singh PW28 Sh. Deepak Gupta PW29 Sh. Dharampal Singh PW30 Dr. Sanjeev Malhotra PW31 Col. A.K. Sachdeva PW32 Sh. Deepak Singh PW33 Ms. Shweta PW34 Smt. Ganga Devi PW35 Sh. R.K. Singh PW36 Sh. V. Shiva Kumar PW37 Retd. ASI Sri Ram PW38 Sh. Jai Ram PW39 Dr. Anupam Raina PW40 Dr. P.N. Malhotra PW41 Sh. Ram Parsad PW42 Sh. N.K. Sharma PW43 Dr. Rajender Singh PW44 HC Balu Ram PW45 HC Sukhdev PW46 Sh. Uday Ram PW47 Retd. SI Om Pal Singh PW48 SI Ranbir Singh PW49 Ct. Ajit Singh PW50 Sh. Jyotish PW51 Sh. Vinay PW52 Retd. SI Om Prakash Kaushik PW53 Ms. Seema Nai PW54 Dr. Nalini Kaul PW55 Sh. Sanjay Sehgal PW56 Sh. Ram Avtar Jain PW57 Sh. Tarun Batra PW58 Sh. Trilochan Singh PW59 Inspr. Nageen Kaushik PW60 W/ASI Kaushal Dahiya PW61 SI Prem Chand PW62 Sh. Ravi Rajput PW63 SI Arvind Kumar PW64 Sh. Chain Singh PW65 Sh. Sher Singh State vs. Meenu Diwan & Anr. Page No. 6/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar PW66 Sh. Jagdish Narayan PW67 Inspr. Amrit Kumar PW68 Dr. Sanjeev Lalwani PW69 Sh. Insp. Mahesh Kumar PW70 Dr. B.K. Mohapatra
4. After completion of prosecution evidence, the statements of accused persons were recorded u/s 313 Cr.P.C on 02.03.2012 and their supplementary statements were recorded on 02.02.2013. All incriminating material was put to them. All the accused persons denied the case of prosecution in general and opted not to lead defense evidence. Accused Meenu Diwan, Amit Saxena and Deepak Malhotra claimed that they have been falsely implicated by the police in this case and the police obtained their signatures on blank papers after giving third degree treatment and also planted certain recoveries with a view to foist a false and fabricated case against them. Accused K.S. Sirish also claimed false implication.
5. I have heard Ld. APP for the State assisted by ld. counsel for complainant and ld. counsel for the accused persons. I have also carefully perused the record including the written submissions filed on State vs. Meenu Diwan & Anr. Page No. 7/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar behalf of parties.
6. It is argued on behalf of State as well as the complainant that case against all the accused persons has been duly proved on record beyond any reasonable doubts. Further that discrepancies/contradictions if any in the case of prosecution are minor and natural. Further that such contradictions are bound to occur in lengthy crossexamination of prosecution witnesses conducted by the ld. defense counsel over a period of time on different dates. It is submitted that it is established beyond doubts that accused Meenu Diwan was acquainted with deceased Dr. R.K. Gupta and was under his treatment. Further that it is established that accused Deepak Malhotra and Amit Saxena were working in the company of accused Meenu Diwan. Further that, it is established on the record that accused Meenu Diwan had a strong motive to eliminate Dr. R.K. Gupta as he had refused to pay her money in need and also insulted her. Further that, the call details of different mobile phones make it clear that deceased Dr. R.K. Gupta was in telephonic touch with Meenu Diwan since morning on 05.12.2003 till afternoon. Further that, the disclosure statements made State vs. Meenu Diwan & Anr. Page No. 8/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar by the accused persons followed by the recoveries effected pursuant thereto have established on record all the vital links and the case against all the accused persons has been duly established on record. A reference is made to judgments of superior courts, which include 1953 Crl. J 129, AIR 1979 SC 1949, AIR 2000 SC 1691, 169 (2010) DLT 536, AIR 2000 SC 3323, MANU/DE/0686/1997, MANU/SC/0961/2002, MANU/SC/0028/1988, MANU/SC/0568/2011, Criminal Appeal No. 2272/2010 (SC) in Gajraj vs. State (NCT) of Delhi, MANU/SC/0745/2012, Criminal Appeal No. 836/2004 (DHC) in Satpal Singh Bedi vs. State, MANU/SC/0714/1999, MANU/SC/0503/1988 and Session Trial no. 477/2012 in The State of U.P vs. Rajesh Talwar & Another.
7. On the other hand, it is submitted on behalf of the accused persons that the case of prosecution is full of discrepancies and contradictions and same is based on false evidence. The credibility of the witnesses has been challenged and it is submitted that most of the so called independent/public witnesses have turned hostile during trial. State vs. Meenu Diwan & Anr. Page No. 9/82 SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar Further that the conduct of the family members of the deceased, after the alleged incident, does not seems to be bonafide and the same is found to be unusual. Further that there are inherent and material contradictions in the statements of the family members of the deceased and different police officials including the concerned IOs. It is argued that the case is based on circumstantial evidence and the prosecution has not been able to establish all the vital links to connect the accused persons with the alleged offence. It is argued that there is total lack of evidence to show motive on part of accused persons, evidence to show that the deceased was last seen with the accused and evidence to show criminal conspiracy amongst the accused persons. Further that no incriminating material has been genuinely recovered from any of the accused persons and the alleged recoveries are planted ones. It is also argued that a charge u/s 364A IPC has been framed but the same is not proved to any extent and the same is otherwise also contrary to the own case of the prosecution. Further that, there is no reliable material to show that the deceased Dr. R.K. Gupta has been murdered by the accused persons in a preplanned manner. Further that the case of the prosecution regarding alleged destruction of evidence State vs. Meenu Diwan & Anr. Page No. 10/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar by the accused persons has also remained unproved for want of reliable evidence. It is further argued that the circumstances leading to arrest of the accused persons and recording of their disclosure statements are highly doubtful. It is argued that prosecution has failed to prove its case against the accused persons beyond reasonable doubts and therefore the accused persons are entitled to be acquitted. A reference is made to judgments of different superior courts, which include 1999 Crl. J 3763, AIR 2003 Punjab & Haryana 3, 1997 (2) Crimes 169 (DHC), 2007 (2) JCC 1256, 2007 (2) JCC 1617, 2007 (2) JCC 1636, (2012) 6 SCC 174, AIR 1996 SC 607, 1997 Crl.J 2535, 1953 Crl. J 129, AIR 1984 SC 1622 and many others in support of his contention.
8. The case of the prosecution in brief is that accused Meenu Diwan had been meeting the deceased Dr. R.K. Gupta often due to her prolonged treatment under him as he was working as Physician at Sir Ganga Ram hospital, and developed illicit intimacy. She was married in the year 1993 with accused K.S Shirish and went to Banglore but after some years her father fell ill and was under the treatment of the deceased State vs. Meenu Diwan & Anr. Page No. 11/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar and she returned to Delhi with her husband and the relations between the deceased and Meenu Diwan rejuvenated.
Further that, Meenu Diwan was suffering from losses and she demanded Rs. 25,000/ from the deceased, which was denied by the deceased and he also insulted her by saying that he can purchase many prostitutes in Rs.25000/ . She felt humiliated and decided to teach him a lesson. That on 30.11.2003, deceased Dr. R.K. Gupta wanted to talk to Meenu Diwan but she rejected his advances and threatened him.
That on 05.12.2003, Dr. R.K. Gupta called Meenu Diwan on her mobile phone and asked her that he was coming to Vasant Vihar at around 01.30 pm and wanted to meet her in her office. Meenu Diwan apprised Amit Saxena and Deepak Malhotra, who were working in the same office, and they all planned to kill Dr. R.K. Gupta. She also asked her other employees to leave the office.
Further that, Dr. R.K. Gupta left Sir Ganga Ram hospital in his Ceilo car and reached Vasant Vihat around 2:00 pm and asked Meenu Diwan about the way to her office. She instructed him accordingly and asked accused Amit Saxena and Deepak Malhotra to hide themselves and State vs. Meenu Diwan & Anr. Page No. 12/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar she herself left to receive the deceased in parking place. Further that Meenu Diwan accompanied the deceased from parking place to her office and during this period, her three female employees saw the deceased in her company.
Meenu Diwan and deceased went to a room at first floor where one Mr. Khalil was staying as paying guest but was not present at that time. Other employees had already left. Further that deceased and Meenu Diwan set inside that room and the deceased allegedly put his hand on her waist and at that time accused Amit Saxena and Deepak Malhotra appeared there. All the three accused then started beating the deceased and thereafter his hands and feet were tied. Thereafter, Meenu Diwan and Amit Saxena strangulated the deceased by putting a piece of string around his neck and Deepak Malhotra gagged his mouth with a piece of cloth. As a result, Dr. R.K. Gupta died.
Further that, Amit took out mobile phone of deceased from the pocket of his coat and Deepak took out his purse containing credit cards, visiting cards and cash. Credit cards were taken by Meenu Diwan while the purse was kept by Deepak. Meenu Diwan also took out cheque State vs. Meenu Diwan & Anr. Page No. 13/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar book from the coat of the deceased and keys of Ceilo car from his pant. The dead body was wrapped in a bed sheet and hid in the basement and the accused persons started waiting for the darkness to fall. After darkness, they put the dead body in the car, took the same to jungles of Gurgoan and put the same to fire with help of petrol and diesel at some lonely place. They drove the car of deceased to Faridabad and after leaving the same in Faridabad, they reached their office by bus, a private vehicle and a TSR.
Then K.S. Sirish, who is husband of Meenu Diwan was informed about the act, room was cleaned, second bed sheet was thrown by Amit and two mattresses of the double bed were dumped by Meenu Diwan and her husband. A phone call for ransom was made at resident of deceased by accused Amit from Noida to misguide the family of deceased.
9. The case of the prosecution is based on circumstantial evidence and admittedly there is no ocular and direct evidence collected by the investigating agency to substantiate the allegations against the accused persons. The law relating to circumstantial evidence is well State vs. Meenu Diwan & Anr. Page No. 14/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar settled that the circumstances from which the inference of guilt is to be drawn against the accused persons should be fully established and the circumstances should be of conclusive nature and the facts established by the prosecution should be consistent only with the hypothesis of guilt of the accused and the circumstances established should be incompatible with the innocence of accused and the chain of evidence should be complete so as to show that in all probabilities the offence must have been done by the accused. For securing a conviction on circumstantial evidence, the prosecution must prove its case by cogent, reliable and admissible evidence and each circumstance must be proved like another fact.
The Hon'ble Supreme Court has laid down following five tests to be satisfied in a case based on circumstantial evidence in the case of Sharad Birdhi Chand Sarda vs. State of Maharastra (1984) 4 SCC 116.
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent State vs. Meenu Diwan & Anr. Page No. 15/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar 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 show that in all human probabilities, the act must have been done by the accused.
10. Before proceeding further, it will not be out of place to have a reference to the statements of the witnesses examined by prosecution and documentary evidence brought on record.
State vs. Meenu Diwan & Anr. Page No. 16/82 SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar PW1 Sh. J. K. Gupta is real brother of deceased Dr. R.K. Gupta. He has deposed that on 05.12.2003 at about 10.00 or 10.15 am, his brother Raj Kumar Gupta (deceased) left his residence for Ganga Ram hospital. At about 08.00 or 08.30 pm, he (PW1) received a phone call from the residence of Dr. R.K. Gupta informing that R.K. Gupta had not returned to his house and his patients had been inquiring about him as he had not reached at the Ganga Ram hospital. He asked the family members of the deceased to wait for some time as he (deceased) might be late in returning. Thereafter at about 10.0010.15 pm, PW1 was told that Dr. R.K. Gupta had not returned, PW1 reached at the residence of deceased and made inquiries from family members of deceased. He was apprised that his cell phone was switched off and no contact had been made. Thereafter, a call was made at number 100 informing the police about the missing of Dr. R.K. Gupta. Thereafter PW1 went to Ganga Ram hospital for inquiries and he was apprised that Dr. R.K. Gupta had finished his round in the hospital at about 02.00 or 02.30 pm and after that he had not been seen. PW1 also deposed about the lodging of report at P.S Rajender State vs. Meenu Diwan & Anr. Page No. 17/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Nagar and his visit to Maurya Shereton hotel and property of deceased at Gurgoan in search of his brother. He further deposed that on his way from Gurgoan to Delhi, he received a call from his daughter at 11.30 am or 12.00 noon (06.12.2003) that she alongwith wife of Dr. R.K. Gupta would be going to Cannaught Place at 12.00 or 12.30 pm to meet Meenu as she had a talk with her and Meenu had told that she would be visiting Cannaught Place area. Further he deposed that at about 12.30 pm, he received a phone call from his house and his younger brother Arun Kumar Gupta informed him that they had received a ransom call demanding rupees one crore within 48 hours. He further deposed that he prepared a report Ex.Pw1/A at about 01.00 or 01.15 pm and handed over the same to police. The witness has further deposed about his joining of investigation on 11.12.2003 and the recoveries effected from the accused persons in his presence. He has also deposed about certain other facts and has identified the case property i.e watch of deceased Ex.P1, shoe Ex.P2, cloths Ex.P2/A, burnt cloths pieces Ex.P3, bone piece P4, burnt nylon string Ex.P5, ghasphoos, earth Ex.P6, earth Ex.P7, burnt stick and bunches of tree Ex.P8, branches of tree Ex.P9, burnt leaves Ex.P10, unbrunt trees and State vs. Meenu Diwan & Anr. Page No. 18/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar branches Ex.P11. This witness has been duly crossexamined at length on behalf of accused persons.
PW2 HC Renu Bala deposed that on 10.12.2003, a police team consisting of herself, Inspr. Mahesh Kumar, SI Nageen Kaushik and other staff had gone to the house of accused Meenu Diwan, she was brought to P.S and interrogated and she made a disclosure statement. Further that consequent upon her disclosure statement, accused Meenu Diwan got recovered medical papers, two bills of mobile phone, two Nokia mobile phones, two Reliance mobile phones, one Panasonic mobile phone, one passport and one PAN card, which were seized by the IO. Further that on 11.12.2003, accused Meenu Diwan pointed out the place of burning of dead body at Gurgoan and certain recoveries were made from that place i.e titan wrist watch, burnt shoe, burnt nylon rope pieces, burnt cloth pieces, burnt leaves and branches etc. PW3, Suchita Sehgal is an Ex. employee of accused Meenu Diwan and she has deposed about her employment with Meenu Diwan. Though, the witness has stated that she was not paid the salary of the period of one and half month by the company of accused Meenu Diwan, State vs. Meenu Diwan & Anr. Page No. 19/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar she has deposed that she did not know about the financial status of the company during the period when she was in service there. This witness has turned hostile on the point of last seen evidence and has denied having seen the deceased in company of accused Meenu Diwan on the date of incident. She has been crossexamined on behalf of State.
PW4 Inspr. Devinder Singh is Draftsman, who prepared and proved scaled site plan as Ex.PW4/A, Ex.PW4/B and Ex.PW4/C. PW5 Smt. Mohini Gupta is wife of the deceased and she has deposed that on 05.12.2003, her husband got up at 06.30 am and attended his morning patient in routine. Further that at about 08.00 am, when they were having morning tea, he had made a call to a lady namely Meenu Diwan and had told her that he would be coming to Vasant Vihar and would have lunch together. Further that at about 10.00/10.30 am, her husband had left the house for hospital in his Ceilo car no. 6767. Further that at about 05.30 pm, she received a phone call from a lady patient who wanted to talk with the deceased and told that mobile phone of the deceased was found switched off. It was also told that the deceased Dr. R.K. Gupta had not attended his chamber in Ganga Ram hospital, where State vs. Meenu Diwan & Anr. Page No. 20/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar he used to be from 04.00 to 06.00/06.30 pm and never used to miss the same whenever he was in Delhi. She has further deposed about the facts which are deposed by PW1 Sh. J.K. Gupta. She has also deposed about her meeting with Meenu Diwan on 06.12.2003 at about 12.30 pm. The witness has also identified the cloths, wrist watch, mobile phone, shoes and purse of her husband. She has also been duly crossexamined on behalf of accused persons.
PW6 Ms. Toshi Bhatnagar is the telephone operator in Sir Ganga Ram Hospital and deposed that on 05.12.2003, on inquiry from maternity ward from Sir Ganga Ram hospital, she made a call on the mobile phone of Dr. Raj Kumar Gupta which was attended by some unknown male.
PW7 Ct. Arun Kumar deposed that on 10.12.2003, he was posted at Police station as constable and joined investigation with Inspr Mahesh Kumar and SI Nageen Kaushik. He further deposed that accused Amit Saxena was arrested in his presence and accused Amit Saxena made disclosure statement Ex.PW7/A. He further deposed that accused Amit led them to his house and got recovered a Samsung mobile phone from a State vs. Meenu Diwan & Anr. Page No. 21/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Diwan having box lying in the drawing room of his house. He further deposed that said mobile phone was seized by IO vide Ex.PW7/B. He also identified the said Samsung mobile phone as Ex.P.12. He has also been duly crossexamined on behalf of accused persons.
PW8 Mrs. Shalini Jha, is an Ex. employee of accused Meenu Diwan and she has deposed about her employment with Meenu Diwan. Though, the witness has stated that she was not paid the salary of the period she worked there by the company of accused Meenu Diwan, she has deposed that she did not know about the financial status of the company during the period when she was in service there. This witness has turned hostile on the point of last seen evidence and has denied having seen the deceased in company of accused Meenu Diwan on the date of incident. She has been crossexamined on behalf of State.
PW9, SI Harish Chander deposed that on 05.12.2003, he was posted at P.S Parshant Vihar and on the night of 5/6.12.2003, Ct. Jasraj gave him DD No. 82 B, which was assigned to him. He further deposed that after receiving DD No. 82B, he visited the house of Dr. R.K. Gupta and made inquiries. He further deposed that on 06.12.2003, he State vs. Meenu Diwan & Anr. Page No. 22/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar recorded DD No. 32 B regarding his inquiry and conducting of further investigation of case by P.S Rajender Nagar. He also proved DD No. 82B as Ex.PW9/A and DD No. 32 B as Ex.PW9/X. He has also been duly crossexamined on behalf of accused persons.
PW10, Sh. Raj Kapoor deposed that in the month of December 2003, he was working as Security guard at Kothi No. 15, Vasant Marg and was on his duty on the back side of Kothi from 08.00 am to 08.00 pm. He further deposed that on the back side of Kothi, there is a dustbin placed by the MCD, which is 15 paces away from the Kothi. He further deposed that it was 10.0011.00 a.m, he had seen that accused Sirish and Meenu Diwan arrived thre in a Black colour Wagon R Car alongwith two mattresses and they had abandoned those mattresses outside the dustbin and left. He further deposed that said mattresses were taken away by the sweeper after 1/ 2 hours. He also proved pointing out memo as Ex.PW10/A and identified two mattresses as Ex.P14 & Ex.P15. He has also been duly crossexamined on behalf of accused persons and during his cross examination he turned hostile.
PW11, Sh. Surender Kumar Gaur is Manager Syndicate State vs. Meenu Diwan & Anr. Page No. 23/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Bank, Sir Ganga Ram Hospital Branch. He proved certificate Ex.PW11/A, which is in respect of account no. 303 pertaining to Dr. R.K. Gupta. He deposed that as per their cheque book register, a cheque book having the foils with number 72782650 was issued to the account holder on 01.11.2013. He further proved statement of account as Ex.PW11/B and cheque book of Dr. R.K. Gupta as Ex.PW11/C. PW12 HC A.K. Krishnan is the member of crime team as photographer. He deposed that on 11.12.2003, he took total 51 photographs at different places during joining of investigation of present case and proved the negatives and photographs as Ex.PW12/A1 to Ex.PW12/A51 and Ex.PW12/B1 to Ex.Pw12/B51 respectively.
PW13 Sh. Krishan Kumar Gupta is the brother in law of deceased Dr. R.K. Gupta. He deposed that on the midnight of 5/6.12.2003, he came to know about the missing of Dr. R.K. Gupta and in the early morning of 06.12.2003, he alongwith his wife Mrs. Kamini visited the house of deceased Dr. R.K. Gupta and discussed the matter with wife of Dr. R.K.Gupta . He further deposed that he came to know that Dr. Gupta had made phone calls to accused Meenu Diwan and thereafter he made a State vs. Meenu Diwan & Anr. Page No. 24/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar call to Meenu and asked her if she had received any calls yesterday from Dr. R.K. Gupta to which accused Meenu Diwan denied and told that she received 4/5 calls a day before regarding address of some hotel in Vasant Vihar. He further deposed that at around 12.00 noon, he received a phone call from a male person who was demanding a ransom of Rs. One crore for release of Dr. R.K. Gupta and also warned him that in case, he played cleverness, they would face dire consequences. He further deposed that he informed about the ransom call to brother of deceased namely Dr. J.K. Gupta on phone. He has also been duly crossexamined on behalf of accused persons.
PW14 Sh. Sunder Lal is scrap dealer of Faridabad, Haryana. He deposed that about three years back, a rehri wala had told him that a Ceilo car was lying abandoned near the marriage point known as Central Green. He further deposed that he informed the police and police reached there and prepared site plan and had also taken away the said car. He further deposed that 2/3 days of that incident, Delhi police again came there and on that day, he signed one paper. He proved pointing out memo as Ex.PW14/A. This witness has turned hostile on some of the State vs. Meenu Diwan & Anr. Page No. 25/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar points. He has been crossexamined on behalf of State.
PW15 Sh. Avdesh Kumar Singh is working as Cashier at shop i.e Mehra Sons 25, DLF City Centre Gurgaon. He deposed that he gave carbon copy of the cash memo to police, which was seized by police vide memo Ex.PW15/A. He further deposed that cash memo Ex.PW15/B is in respect of sale of 20 gold coins total weighing 160 grams for the sale consideration of Rs. 98,000/ and the payment against this cash memo was made by Master Credit Card of City Bank. He further proved copy of charged slip as Ex.PW15/C. He also proved pointing out memo Ex.PW15/D and Ex.PW15/E. This witness has turned hostile on some of the points. He has been crossexamined on behalf of State.
PW16 Sh. Dev Raj is S.D.O Phones, Vasant Vihar, MTNL Office and has proved record of phone no. 26152995, which was in the name of Meenu Diwan and was installed at B4/4, Ground Floor, Vasant Vihar, New Delhi.
PW17 HC Baljit deposed that on 15.12.2003, he was posted at PS Rajinder Nagar and joined investigation of present case. He deposed that accused K.S. Siris was in police custody and led them to H.No. B 4/4, State vs. Meenu Diwan & Anr. Page No. 26/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Vasant Vihar, New Delhi and got recovered a brief case of black colour from the almirah lying in his bed room. He further deposed that 20 gold bullions and some papers of LIC/GIS were found in the said brief case. He further deposed that said case property was seized by IO vide seizure memo Ex.PW17/A. Said witness was duly crossexamined on behalf of accused persons.
PW18 Dr. Mannu Gupta deposed that deceased DR. R.K. Gupta was his real uncle. He further deposed that on 05.12.2003, he alongwith his aunts Mrs. Mohini Gupta and Mrs. Kamini Gupta went in search of deceased Dr. R.K. Gupta and also met Meenu Diwan near Gol Dak Khana at about 12.00 noon. He further deposed that during that time, they received information from Mr. K.K. Gupta regarding ransom call of rupees One Crore for release of Dr. R.K. Gupta. He further deposed that thereafter, they reached to the police station Rajender Nagar and police recorded her statement. Said witness was duly crossexamined on behalf of State.
PW19 Sh. Shiv Singh is Sub Divisional Engineer, officer of G.M, MTNL, Nehru place telephone Exchange building, New Delhi and State vs. Meenu Diwan & Anr. Page No. 27/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar proved the record pertaining to telephone no. 26065394.
PW19A HC Jagdish Chand is the MHC(M) posted at P.S DLF, Sector 29, Gurgoan and proved entries at serial no. 731 in register no. 19 as Ex.PW19/A/1 and proved entries in register no. 21 regarding handing over of the sealed pullanda to Inspr. Mahesh Kumar on 11.12.2003 as Ex.PW19A/2. He also proved record of DD NO. 17 dt. 07.12.2003 as Ex.PW19A/3 and Ex.PW19A/4.
PW20 Sh. Rajender Singh, Chowkidar of the Khatta deposed about removal of mattresses from Khatta and recovery of the same by the police from his possession.
PW 21 Ct. Veerpal deposed that on 10.12.2003, he joined the investigation of present case and accused Deepak Malhotra and Amit were interrogated in his presence. He also proved arrest memo and personal search of accused Deepak Malhotra as Ex.PW21/A & Ex.PW21/B respectively. He further proved disclosure statement of accused Deepak as Ex.PW21/C. He further deposed that accused Deepak led them to D11, Vasant Vihar, First Floor and got pointed out towards one bed lying there and proved pointing out memo as Ex.PW21/D. He State vs. Meenu Diwan & Anr. Page No. 28/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar further deposed that on 12.12.2003 accused Deepak led us to H.No. C87, II Floor, Duggal Colony, Near Khan Pur, Delhi and got recovered one brown colour purse, which was seized vide memo Ex.PW21/E and also identified purse as Ex.P13. He also proved seizure of scooter lying in front of house of accused Deepak as Ex. PW21/F. He also identified two blood stained gaddas as Ex.P14 and Ex.P15 as the same gaddas, which were recovered at the instance of accused Deepak from BBlock, Vasant Vihar. He also proved seizure memo of five liter plastic cane in which accused persons allegedly carried diesel, as Ex.PW21/G and identified said plastic can as Ex.P16. He further deposed that on 13.12.2003, he joined investigation and accused Deepak Malhotra pointed to the place of purchase of eatables, and proved pointing out memo as Ex.PW21/H. He also proved pointing out memo Ex.PW21/I as the place from where accused persons intended to hire taxi. He also proved pointing out memo Ex.PW22/J as the place from where accused Deepak made the ransom call. He has been duly crossexamined on behalf of accused persons.
PW22 Sh. Jitender Dass deposed that he is a driver by profession and nothing had happened with him about four years back at about 09.00 pm. This witness has turned hostile and he has been cross State vs. Meenu Diwan & Anr. Page No. 29/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar examined on behalf of State.
PW23 Dr. D.N. Bhardwaj is Professor, Forensic Medicines, AIIMS, New Delhi gave his opinion regarding time since death and proved his report Ex.PW23/J. He further proved his report Ex.PW23/K regarding use of inflammable substance to destroy the body.
PW24 Ct. Bimla deposed that on 14.12.2003, she joined investigation of present case and accused Meenu Diwan made her disclosure statement in her presence. She also proved disclosure statement of accused Meenu Diwan as Ex.PW24/A. PW25, Babu Khan deposed that he is having business of fabrication of iron and no incident had taken place in his presence and he do not know anything about the present case. This witness has turned hostile and he has been crossexamined on behalf of State.
PW26 HC Ram Charan deposed that on 13.12.2003 he joined the investigation of present case. He proved seizure memo of black colour WagonR car as Ex.PW26/A . He further deposed that accused Meenu Diwan led them to a dry cleaner shop situated at ABlock, Vasant Vihar Market and got recovered her cloths, which she wear at the time State vs. Meenu Diwan & Anr. Page No. 30/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar incident. He proved seizure memo of said cloths as Ex.PW26/B. He further deposed that accused Amit led them to Gole Market, CBlock and got recovered one black colour K Bajaj motorcycle, which was seized vide memo Ex.PW26/C. He has been duly crossexamined on behalf of accused persons.
PW27 Sh. Maman Singh deposed that in December 2003 he was going to his work on his bicycle and on the way he stopped for urinating. He further deposed that while he was urinating, he noticed that a few pigs were eating flesh. He further deposed that he also noticed hairs on the skull and foot of the body. He further deposed that he can not tell whether the said body was of a male or female. He further deposed that a few trees of Siras were also near that pit. He further deposed that after covering a distance of about 100 yards, he met with a guard and told him about the fact. He further deposed that police inquired him and his statement Ex.PW27/A was recorded. He has been duly crossexamined on behalf of accused persons.
PW28 Sh. Deepak Gupta is Head Legal Advisor, Vodafone Essar Sout Ltd. He proved seizure memo of details of the mobile phones State vs. Meenu Diwan & Anr. Page No. 31/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar number of Amit Saxena, Dr. R.K. Gupta and Mala Sahni as Ex.PW28/A and covering letter as Ex.PW28/B. He also proved call details of mobile no. 9811081038 relating to Dr. R.K. Gupta, mobile no. 9811092058 relating to accused Amit Saxena and call details of mobile no. 9899363990 Mala Sahni as Ex.PW28/C, Ex.PW28/D and Ex.PW28/D respectively. He also proved cell I.D chart as Ex.PW28/F. He has been duly crossexamined on behalf of accused persons.
PW29 Sh. Dharam Pal Singh deposed that on 07.12.2003 he used to work as security Officer in Laxmi Enterprises Security Agency, DLF PhaseI, Gurgoan. He further deposed that on that day, at about 07.00 am, he was present in the control room and he received a message on wireless from Raj Kumar, the security Guard at Gate no. 4 of DLF PhaseI that he has been told by Maman, that he had seen a burnt body of a human being lying at a distance of about 150 meters from Gate No. 4 and the dead body was being eaten by pigs. He further deposed that he informed the police about the incident. He further deposed that police recorded his statement. He has been duly crossexamined on behalf of accused persons.
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P.S Rajender Nagar PW30, Dr. Sanjeev Malhotra deposed that on 09.12.2003 he conducted postmortem on the dead body of unknown person. He further deposed that the body has been referred from General Hospital, Gurgoan and the body was brought by ASI Prem Chand. He proved his postmortem report as Ex.PW30/A. He has been duly crossexamined on behalf of accused persons.
PW31 Col. A.K. Sachdeva is Nodal Officer, Reliance Communications Ltd. He proved calls details of mobile no. 31008342, 35971391 & 35881817 as Ex.PW31/A, Ex.PW31/B and ExPW31/C respectively. He also proved Cell I.D Chart of abovesaid mobile numbers as Ex.PW31/D. He also proved seizure of calls details recored by police as Ex.PW31/E. He has been duly crossexamined on behalf of accused persons.
PW32 Sh. Deepak Singh deposed that about 4 or 5 years back he was present at his shop located in 3C/58, Bunglow Plot, Faridabad, then, police alongwith one person came there. He further deposed that police and that person had gone to an open plot near his shop and brought one bed sheet from there and after that made inquires from State vs. Meenu Diwan & Anr. Page No. 33/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar him about the bed sheet. This witness has turned hostile on the point of identification of accused Amit Saxena and regarding identification of bed sheet. He has been crossexamined on behalf of State.
PW33 Ms. Shweta is also exemployee of accused Meenu Diwan. She also deposed on the line of PW3 (Mrs. Suchitra Sehgal) & PW8 (Mrs. Shalini Jha). This witness has also turned hostile on the point of last seen evidence and has denied having seen the deceased in company of accused Meenu Diwan on the date of incident. She has been cross examined on behalf of State.
PW34, Smt. Ganga Devi deposed that four years back she worked as a maid in the house of Mr. Khalil for about seven months. She deposed that she saw accused Meenu Diwan standing near the gate on two or three occasions but Meenu Diwan had not entered the premises of Mr. Khalil in her presence. She has been crossexamined on behalf of State.
PW35, Sh. R.K. Singh is Nodel Officer Bharti Airtel Limited. He proved calls details of mobile no. 9810156983, 9810502324, 9818778655, 9818024161, 9810863648, 9818376443 & 9810760620 as Ex.PW35/A, Ex.PW35/B, Ex.PW35/C, Ex.PW35/D, Ex.PW35/E, State vs. Meenu Diwan & Anr. Page No. 34/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Ex.PW35/F and Ex.PW35/G respectively. He also proved Cell I.D Chart of abovesaid mobile numbers as Ex.PW35/J. He also proved seizure of calls details record by police as Ex.PW35/H & Ex.PW35/I. He also proved Ex.PW35/K. He has been duly crossexamined on behalf of accused persons.
PW36 Sh. Shiv Kumar is Manager Citi Bank, Jeewan Bharti Branch, Delhi. He deposed about status of credit card of Sh.Raj Gopal Srivastava.
PW37 Retd. ASI Sri Ram is the PCR official and he deposed that concerned record of dated 05.12.2003 is not available as the same has been destroyed and he proved order of destruction of said record vide Ex.PW37/A. He has been duly crossexamined on behalf of accused persons.
PW38 Sh. Jai Ram deposed that in December 2003, he was working at his father shop situated at Rama Market, Munirka, Delhi. He further deposed that in December 2003 police alongwith 2 or three persons visited his shop. This witness has also turned hostile on the point of identification of accused Amit Saxena and regarding selling of plastic State vs. Meenu Diwan & Anr. Page No. 35/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar rope to accused Amit Saxena for Rs. 12/ . He has been crossexamined on behalf of State and on behalf of accused persons.
PW39 Dr. Anupam Raina, Sr. ScientistII, AIIMS, New Delhi deposed about DNA tests and reports conducted with help of samples taken from family members of Dr. R.K. Gupta and from the tissues and material seized by Dr. Sanjeev Malhotra during postmortem N. PME2003/12/6 dt. 09.12.2003 of skeleton at PGIMS Rohtak. She has been duly crossexamined on behalf of accused persons.
PW40 Dr. P.N. Malhotra is Senior Medical Record Officer of Ganga Ram Hospital. He deposed that Dr. R.K. Gupta was Medicine Consultant in Ganga Ram Hospital in the year 2003. He further deposed that accused Meenu Diwan was under treatment from Dr. R.K. Gupta. He further deposed that laboratory test/examination of Meenu Diwan were conducted free of cost on the instruction of Dr. R.K. Gupta. He also proved laboratory test requisition form as Ex.PW40/A, biochemistry requisition cum reporting form as Ex.PW40/B and requisition form for test in department of Nuclear Medicines is Ex.PW40/C. He has been duly crossexamined on behalf of accused persons. State vs. Meenu Diwan & Anr. Page No. 36/82 SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar PW41 Sh. Ram Parsad @ Ramu deposed regarding seizure of Wagon R car on 13.12.2003 from workshop situated at AL1, Jail Road, Hari Nagar, Delhi, where he used to work as Chowkidar. He has been crossexamined on behalf of state as he has not disclosed the complete facts as per case of prosecution.
PW42 Sh. N.K. Sharma is finger print expert and deposed about his proceedings conducted on 08.02.2003 regarding lifting of chance print from Ceilo car found abandoned at Faridabad and proved report Ex.PW42/A. He also deposed regarding his examination dt. 17.12.2003 of plastic cane sent by IO and proved his report Ex.PW42/D. He has been duly crossexamined on behalf of accused persons.
PW43 Dr. Rajender Singh, Principal Scientific Officer & Head of Physics Division, CBI has deposed about his expert report Ex.PW43/A and Ex.PW43/B. PW44 HC Balu Ram is the MHC(M) of P.S Rajender Nagar and deposed about entries made by him on 11.12.2003 vide serial no. 930 to 938 and entries made by him on 15.12.2003, 17.12.2003, 19.12.2003, 17.03.2004, 12.12.2003, 13.12.2003.
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P.S Rajender Nagar PW45 HC Sukhdev is deposed about his joining of investigation on 10.12.2003 and regarding arrest, personal search and disclosure statement of accused K. S. Siris and he proved Ex.PW45/A, Ex.Pw45/B and Ex.PW45/C. He has been crossexamined on behalf of accused persons.
PW46 Sh. Uday Ram, Sr. Section Supervisior, MTNL deposed about telephone no. 23343934 installed at 22/90 Connaught Circus in the name of Raj Gopal and proved Ex.PW46/A, Ex.PW46/B and Ex.PW46/C. PW47 Retd. SI Om Pal Singh deposed that on 06.12.2003 he was on emergency duty at P.S Rajender Nagar and proved DD No. 4 A as Ex.Pw47/A. PW48 SI Ranbir Singh deposed about seizure of Ceilo car bearing no. HR26J6764 from Faridabad vide memo Ex.PW48/A and regarding preparation of site plan Ex.PW48/B of the place from where Ceilo car bearing no. HR26J6764 was recovered. He has been duly crossexamined on behalf of accused persons.
PW49 Ct. Ajit Singh deposed about his joining of State vs. Meenu Diwan & Anr. Page No. 38/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar investigation on 10.12.2003 and regarding arrest, personal search and disclosure statement of accused Amit and he proved Ex.PW49/A and Ex.Pw49/B. He has been crossexamined on behalf of accused persons.
PW50 Sh. Jyotish, Nodel Officer, Hutchson Essar deposed about mobile no. 9811092058 and 9899363990 and proved Ex.PW50A and Ex.PW50/B. PW51 Sh. Vinay is an Ex Employee of accused Meenu Diwan. He has not supported the case of prosecution and he has been declared hostile on all material aspects. He has been crossexamined on behalf of State.
PW52 Retd. SI OM Prakash Kaushik deposed regarding his joining of investigation and proceedings carried out in his presence in present case on 11.12.2003, 13.12.2003 & 17.12.2003. He has been duly crossexamined on behalf of accused persons.
PW53 Ms. Seema Nai, Nodel Officer M/s Idea Cellular Ltd., deposed regarding mobile no. 9891461459 and proved Ex.PW53/A, Ex.PW53/B and Ex.Pw53/C. She has been duly crossexamined on behalf of accused persons.
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P.S Rajender Nagar PW54 Dr. Nalini Kaul, Ex. Director Medical Sir Ganga Ram Hospital, Delhi deposed regarding the status of attendance of Dr. R.K. Gupta at Sir Ganga Ram Hospital on 05.12.2003.
PW55 Sh. Sanjay Sehgal deposed that in the year 2003 he was working as Regional Manager, North in Standard Charted Bank and further deposed about the working of company of accused Meenu Diwan namely Max Solutions. He has been duly crossexamined on behalf of accused persons.
PW56 Sh. Ram Avtar Jain is operator of STD PCO from where a call was allegedly made by accused Amit Saxena but he has not supported the case of prosecution and has been declared hostile witness. He has been crossexamined on behalf of State.
PW57 Mr. Tarun Batra deposed that 56 years back police officials got his signature on one paper and he told police that he sold Heena gloves to the mulzim, who was present at that time with the police. This witness has failed to identify accused Amit as the same Mulzim, who accompanied police 56 years.
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P.S Rajender Nagar PW58 Sh. Trilochan Singh deposed about the visit of accused Deepak at his Taxi stand to hire Taxi for Vasant Vihar in the first week of December 2003 and regarding visit of police officials to his taxi stand after about a week alongwith accused Deepak.
PW59 Inspr. Nageen Kaushik is the first IO of present case and he deposed about the different steps taken by him during investigation of present case on 06.12.2003, 07.12.2003, 09.12.2003, 10.12.2003.
PW60 ASI Ms. Kaushal Dahiya is the duty officer of P.S Rajender Nagar on 06.12.2003 and registered present FIR. She proved rukka Ex.PW60/A and FIR No. 259/2003 as Ex.Pw60/B. She also deposed about the disclosure statement made by accused Meenu Diwan. She also deposed about the recoveries effected at the instance of accused Meenu Diwan and proved Ex.PW60/C to Ex.PW60/H. She has been duly crossexamined on behalf of accused persons.
PW61 SI Prem Chand deposed about the proceedings conducted by him on 07.12.2003 after receiving information regarding lying of human skeleton at Gurgaon Faridabad road. He also deposed about the proceedings conducted by him u/s 174 Cr. P.C. He also deposed State vs. Meenu Diwan & Anr. Page No. 41/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar about the proceedings dt. 12.12.2003 and 25.12.2003 and proved certain documents.
PW62 Mr. Ravi Rajput is witness regarding purchase of eatables by accused on the day of incidentbut he has not supported the case of prosecution and has been declared hostile witness. He has been crossexamined on behalf of State.
PW63 SI Arvind Kumar deposed regarding his joining of investigation and proceedings carried out in his presence in present case on 11.12.2003 & 12.12.2003. He has been duly crossexamined on behalf of accused persons.
PW64 Sh. Chain Singh has deposed that in December 2003, he was sales man in Indian Oil Petrol pump R.K. Puram but he did not remember anything as to what happened or what was done on 05.12.2003. Since, he was not disclosing the facts as per case of prosecution, he was crossexamined by the Addl. PP. During crossexamination he has admitted that on 12.12.2003 some police officials had come to him and inquiries were made regarding buying of petrol by a customer who bought petrol in a cane on 05.12.2003. He has also admitted that name of the said State vs. Meenu Diwan & Anr. Page No. 42/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar boy was Amit Saxena and the witness has admitted his signatures on Mark A which was subsequently given the number as Ex.PW64/A. But the witness has not supported the case on identification of accused Amit Saxena and has also denied having made a statement to police that a boy whose name now revealed as Amit Saxena came to the petrol pump or he bought petrol. He has been crossexamined on behalf of accused persons also.
PW65 Sh. Sher Singh has deposed that he was working at Car care filling and service station, Petrol pump R.K. Puram and that Sh. Chain Singh (PW64) was also working with him. The witness has admitted his signatures on Ex.PW64/A but he failed to identify the accused. He has also been crossexamined by Ld. Addl. PP and has denied having made statement to police. He has also been crossexamined by the ld. Defense counsel.
PW66 Sh. Jagdish Narayan is owner of dryclean shop under the name and style New Super White Dry cleaners at shop no. 8 Convenient Shopping Centre No. 1, Poorvi Marg, Vasant Vihar, New Delhi. He has admitted his signature on Ex.Pw26/B and stated that he State vs. Meenu Diwan & Anr. Page No. 43/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar had signed the same about 56 years back. Further that police came at his shop and inquired about the cloths, he produced the cloths and memo was prepared. He has also stated that at that time, police officials were alone and no public persons were accompanying them. He has been cross examined by the Addl. PP and he denied that accused K.S. Sirish present in court was the person who came with police and asked him to take out the clothes from the shop. The witness further added that he was not able to identify the person being pointed out because of lapse of long time. Though, in the next sentence, he admitted that when the cloths were given for dry cleaning the said gentlemen was accompanying a lady. On identity of Meenu Diwan also, the witness has also not replied convincingly.
PW67 Inspr. Amrit Kumar has joined the investigation of this case on 11.12.2003 in respect of accused Amit Saxena. He has deposed about recovery of plastic rope, bed sheet of pink colour, bed sheet of blue colour and some pointing out memos, at the instance of accused Amit Saxena. He has also deposed about of recording of statement of PW Deepak and Sunder Lal. He has also deposed about the event of State vs. Meenu Diwan & Anr. Page No. 44/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar investigation dt. 13.12.2003, 14.12.2003 and 16.12.2003. He has been duly crossexamined at length by Ld. Defense counsel.
PW68 Dr. Sanjeev Lalwani is member of medical board constituted at AIIMS on the basis of letter dt. 15.12.2003 received by the Head of department Forensic Medicine AIIMS for opinion. He has deposed about letter Ex.Pw23/B, endorsement Ex.PW23/C made by Dr. T.D. Dogra. He has deposed about report Ex.Pw23/E. He further deposed about the letter dt. 17.03.2004 sent by ACP Anti Fraud and cheating section, EOW Crime Branch Ex.Pw23/F, endorsement Ex.PW68/A and report Ex.PW23/K. He further deposed about clinical forensic medicine report Ex.PW23/J. PW69 Inspr. Mahesh Kumar is the investigation officer of the case, who investigated the matter after 10.12.2003 and he has deposed about the steps taken by him during investigation.
PW70 Dr. B.K. Mahapatra, is Senior Scientific Officer at CFSL New Delhi. He deposed about reports Ex.PW70/A, Ex.PW70/B and Ex.PW70/C. State vs. Meenu Diwan & Anr. Page No. 45/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar
11. Now, the different circumstances relied upon by the prosecution shall be considered separately alongwith other important issues involved in the case.
MOTIVE
12. The first question which comes for adjudication is whether there was any motive on part of accused/accused persons for committing the alleged crime.
In a case based on circumstantial evidence, motive is an important factor. In the present case, the prosecution has come out with a specific case qua motive on part of accused Meenu Diwan to eliminate the deceased Dr. R.K. Gupta. The case of the prosecution is that there were relations between accused Meenu Diwan and Dr. R.K. Gupta, she had a financial crisis and demanded Rs. 25,000/ from Dr. R.K. Gupta, which was denied and the accused Meenu Diwan was insulted also by the doctor and that due to this she decided to remove the deceased. If the entire State vs. Meenu Diwan & Anr. Page No. 46/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar evidence led by prosecution is analyzed it reveals that there is no evidence at all against accused Meenu Diwan to show motive on her part. The case of the prosecution revolves around the disclosure statement of the accused which has no value in the eyes of law in absence of any corroboration by reliable evidence. Though it is admitted fact that accused Meenu Diwan was known to the deceased Dr. R.K.Gupta and was having treatment from her but there is no evidence to show that she demanded Rs. 25,000/ from him or that such demand was denied or that the accused Meenu Diwan was insulted. The prosecution has tried to show the financial status of the accused Meenu Diwan with the help of witnesses namely PW3, PW8 and PW33, who are Exemployees of accused Meenu Diwan. Though these witnesses have stated that their salaries for 12 months was not paid but they have avoided to comment about the financial status of the company of the accused Meenu Diwan namely M/s Max Solutions. The prosecution has also failed to explain as to in what manner Rs. 25,000/ was going to help Meenu Diwan if she was under any financial crisis. Rs. 25,000/ was not a very big amount even in the year 2003 when the alleged crime was allegedly committed. It is clear from the material State vs. Meenu Diwan & Anr. Page No. 47/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar available on record that accused Meenu Diwan belonged to a financial strong family and herself owning a number of movable and immovable properties, she had gold in her locker, had valid credit cards of different banks in her own name. There is nothing to show that she was making any default in payment of different type of bills. The prosecution has referred to OPD card Ex.PW5/A and laboratory test form Ex.PW40/A to C to show that accused Meenu Diwan was acquainted to the deceased Dr. R.K Gupta but this fact has neither been denied by the accused nor it leads to a conclusion that simply because she was known to the deceased and getting treatment from him, she committed his murder. The prosecution has also referred to the calls made to Meenu Diwan on 25.11.2003 and 30.11.2003 by the deceased but in absence of any proof of content of conversation, the said calls cannot be made basis to attach motive to the accused. Further, to show her financial status, the prosecution has put forward a case that she purchased gold coins after misusing the credit card of his father and such gold coins are stated to be recovered from possession of accused K.S. Sirish, who is husband of Meenu Diwan. In this regard, one document Ex.Pw36/A which is a consumer dispute State vs. Meenu Diwan & Anr. Page No. 48/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar declaration form given by father of Meenu Diwan is brought on record. The contents of said documents do not name Meenu Diwan and the same is against some unknown persons. Further the witness from the alleged Mehra Sons Jewelers i.e PW15 Sh. Avdesh Kumar Singh has not deposed against Meenu Diwan and did not support the case of prosecution properly. Further, the gold coins allegedly recovered from accused K.S. Sirish can not be imposed on accused Meenu Diwan for the purpose of showing motive. There is no evidence to show that said gold coins were purchased by Meenu Diwan. Apart from above facts, there is only disclosure statement of the accused which is not admissible in absence of corroboration as per law, by virtue of section 25 of Indian Evidence Act. There is no cogent or reliable evidence to show the alleged motive on part of the accused Meenu Diwan.
Since, the prosecution has put forward a case of motive on part of accused Meenu Diwan, they were duty bound to prove the same and in absence of proof of the same, serious doubts are bound to be raised against case of prosecution.
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P.S Rajender Nagar LAST SEEN EVIDENCE
13. The case of prosecution is that just before his disappearance, the deceased Dr. R.K. Gupta was seen in the company of accused Meenu Diwan. For the purpose of proving the last seen evidence, the prosecution has again relied upon the testimonies of PW3 Ms. Suchita Sehgal, PW8 Ms. Shalini Jha and PW33 Ms. Shweta, who are Exemployees of accused Meenu Diwan. All the above mentioned three witnesses have categorically denied, in their statements, having seen the deceased Dr. R.K. Gupta with Meenu Diwan on 05.12.2003. In absence of corroboration from PW3, PW8 and PW33, the story of prosecution qua last seen evidence stands demolished. Apart from the testimonies of PW3, PW8 and PW33, there is no evidence to show that deceased Dr. R.K. Gupta was seen in company of Meenu Diwan just before his disappearance.
The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that State vs. Meenu Diwan & Anr. Page No. 50/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar possibility of any person other than the accused being the author of crime becomes impossible. Even in such a case, the court should look for some corroboration.
Hon'ble Supreme Court in State of U.P vs. Satish 2005 Crl. J 1428 has observed that;
" The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively established that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. State vs. Meenu Diwan & Anr. Page No. 51/82 SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
In the present case, not only the above mentioned three witnesses have denied the fact regarding the last seen evidence, the medical reports have also created further doubts. As per report given by the autopsy surgeon, Dr. Sunil Malhotra, PW30, the time since death could be within two months. His report has been subsequently commented upon/clarified by the Medical Board constituted at AIIMS for the purpose of DNA examination and it was opioned thattime since death could be within four days. But despite such clarification, the anomaly in the medical report regarding time since death can not be overlooked. In absence of any exact opinion about time since death and testimony of independent witnesses, the whole story of the last seen evidence has come under serious doubt.
Since, a specific circumstance regarding last seen is raised by State vs. Meenu Diwan & Anr. Page No. 52/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar the prosecution and the same has not been proved as per law, a further blow to the case of prosecution has occurred.
CONSPIRACY
14. The case of prosecution is that accused Meenu Diwan entered into a conspiracy with accused Deepak Malhotra and Amit Saxena to get rid of Dr. R.K. Gupta and in furtherance of their conspiracy the doctor was killed by them. The prosecution has tried to establish the factum of alleged conspiracy with the help of statements of exemployees of Meenu Diwan, call details and the circumstances leading to recoveries of certain incriminating material in light of the disclosure statements made by the accused persons. It is argued on behalf of state that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. That there must be meeting of minds resulting in ultimate decision taken by the conspirators and it is not necessary to prove that the conspirators actually met or communicated in a State vs. Meenu Diwan & Anr. Page No. 53/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar particular way. A reference is made to the judgment of Hon'ble Supreme Court in AIR 2000 SC 3323.
It is argued by the defense counsel that neither in the charge sheet nor in the court deposition of any witness it has come on record that accused Meenu Diwan, Deepak Malhotra, Amit Saxena or K.S. Sirish conspired with each other to do the alleged crime or acted in pursuance to said conspiracy.
For the purpose of showing conspiracy amongst the accused persons, the prosecution has referred to certain facts.
It is stated that there was a call between the deceased Dr. R.K. Gupta and accused Meenu Diwan at about 09.00 am on 05.12.2003 where Dr. R.K. Gupat told Meenu Diwan that he would be coming to Vasant Vihar and that Meenu invited him for lunch. In this regard, it is found that there is no proof of the content of the talk between the deceased and the accused. The wife of the deceased claims to be present with the doctor at the time of call but this fact has not been mentioned by her at the time of initial statement or registration of FIR. A mere call detail record is not sufficient to prove the actual fact. Further, it is argued that immediately State vs. Meenu Diwan & Anr. Page No. 54/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar after calling to the deceased, accused Meenu Diwan talked to Deepak Malhotra and Amit Saxena. Again, there is a simple record of call timing and no proof of contents. Further, the concerned land line number pertaining to Deepak Malhotra is infact in the name of his father Sh. P.C. Malhotra and it can not be said that it was accused Deepak Malhotra, who attended the call. Further, the prosecution has also referred to the subsequent calls made by the deceased to Meenu Diwan when he left the hospital for going to Vasant Vihar and when he reached near the office of Meenu Diwan. The prosecution has also referred to the phone locations of deceased and the accused persons. Again much reliance can not be placed upon the CDR and phone location as the same do not provide any conclusive proof and the same merely raise suspicion which can not take place of proof. The issue relating to reliability of call detail and tower location is being discussed separately under the heading Call detail record.
If the evidence led by prosecution is analyzed for the purpose of deciding the fact of criminal conspiracy between the accused persons, it reveals that there are some instances to suspect the accused persons but there is no cogent and reliable material to reach at a conclusion. State vs. Meenu Diwan & Anr. Page No. 55/82 SC No. 33/1/14 FIR No. 259/03
P.S Rajender Nagar CALL DETAIL RECORD
15. As per case of prosecution, the deceased Dr. R.K. Gupta was well in touch with accused Meenu Diwan since morning on 05.12.2003 through telephonic calls and that accused Meenu Diwan was in touch with other accused namely Deepak Malhotra and Amit Saxena through telephonic calls. It is submitted on behalf of State that call details of the accused persons and the deceased make it clear that the deceased was in company of accused at the time of his disappearance and that such call detail report prove the guilt of accused. On the other hand, the counsel for accused has argued that call detail record produced by prosecution is inconsequential and inconclusive which can not be made basis for making the accused liable for the crime.
The prosecution has examined several witnesses i.e PW16, PW19, PW28, PW31, PW35, PW45, PW50 & PW53, who are either Nodel officers or employees of different telecom companies and have State vs. Meenu Diwan & Anr. Page No. 56/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar proved the details of ownership and call details of different mobile phones and landline phones. There is only record of the calls timings but there is no recorded conversation and version of any witness who might have heard the contents of the calls. Simply because few persons are talking with each other at different times, it can not be said that the said talks have culminated into commission of a crime. Further, the record produced by above mentioned witnesses do not provide the exact location of a particular mobile phone as it has come in the crossexamination of several such witnesses that exact range of a tower can not be ascertained. It was explained by said witnesses that the word range means the distance in meters which may be from 0 km to 2 km and even may be 5 km depending upon the strength of a tower and its location etc. It was also stated by the witnesses that exact location of a mobile phone can not be located. Although, call details with details of tower have been adduced in evidence by prosecution but there is nothing on record to show the strength of the towers for analyzing the range of one particular tower. Zero to Five kilometer is a very big range particularly in a city like Delhi where a distance of even 100 meters is very important due to heavy density of State vs. Meenu Diwan & Anr. Page No. 57/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar population. Though, the call details record raised certain suspicion about role of the accused persons but the same is not conclusive to impose criminal liability on the accused persons.
RECOVERIES
16. The prosecution has relied upon several alleged recoveries effected in pursuance to the disclosure statements made by the accused persons, as incriminating circumstances.
First of all, the prosecution has relied upon the recovery of wrist watch, brunt shoes and cloth pieces with other things like burnt leaves and plants etc. from the place of burning of the dead body of deceased Dr. R.K. Gupta from Gurgoan. The case of prosecution is that said articles were recovered on 11.12.2003 at the instance of accused persons in pursuance to their disclosure statements. It is contended on behalf of accused persons that the said recoveries are totally planted and the same are highly improbable. It is submitted that it is not probable that State vs. Meenu Diwan & Anr. Page No. 58/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar such articles like wrist watch and shoe etc. are found available on the place of burning of dead body after about 56 days of the alleged burning. A reference is made to statement of PW 61 ASI Prem Chand of Gurgaon police, who was the first police official, who reached at the above said place on 06.12.2003 and stated that place was minutely searched and nothing was found on the day of recovery of dead body i.e 06.12.2003. It is also pointed out that PW1 Dr. J.K. Gupta has stated in his statement that before joining the investigation on 11.12.2003, he visited the Rohtak Medical college and came to know about the spot from where the body of the deceased was found.
It is matter of fact that the dead body was found by Gurgoan police on 06.12.2003, the same was sent to Rohtak Medical college on 07.12.2003 and after having preserved for two days after due examination the same was cremated on 09.12.2003. PW61 ASI Prem Chand of Gurgoan police was the first person to reach at the spot where the dead body was lying and he has categorically and unequivocally stated in his examination that the place of recovery of dead body was minutely searched and nothing was found on the said date. If the dead body was State vs. Meenu Diwan & Anr. Page No. 59/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar recovered several days before 11.12.2003 and the place was duly searched and examined by the police, the story of prosecution regarding recovery of wrist watch, shoes and cloth pieces of the deceased from the place of burning, seems to be highly doubtful. Moreover, PW1 Sh. J.K. Gupta, who is brother of deceased and author of FIR, has disclosed in his statement that before joining investigation on 11.12.2003 he visited the Rohtak Medical College and came to know about the spot from where the body was found. It is also reflected from statements of the witnesses that deceased Dr. R.K. Gupta was having properties in Gurgoan and the investigating agency was actively searching for the deceased in Delhi and NCR areas like Gurgoan, Faridabad and Noida. In such circumstance, it can be assumed that the police was well aware about the alleged place of burning of dead body much before the arrest of accused persons or atleast prior to 11.12.2003 when recoveries were allegedly effected at the instance of accused persons. It is also noteworthy that it is not there in the original case of the prosecution that any witness had told about the above articles being there in possession of deceased when he left his house on 05.12.2003. Further, the above articles have not been got identified State vs. Meenu Diwan & Anr. Page No. 60/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar during investigation in a reliable manner. Such recoveries have also come under doubt due to the fact that neither the local police of Gurgoan has been intimated or joined at the time of recoveries nor any independent public witnesses has been joined. The whole story of prosecution regarding recovery of above mentioned articles seems to be a fake exercise.
Apart from above recoveries, the prosecution has also relied upon certain individual recoveries effected from/ at the instance of different accused persons.
In respect of accused Amit Saxena, it is claimed that he has given two disclosure statements on 10.12.2003 & 11.12.2003 and pursuant thereto one mobile phone (Samsung), two bed sheets of blue and pink colour and one nylone rope were recovered. The said recoveries are under serious doubt due to various reasons. Firstly, it is not explained as to what was the occasion for recording of two different disclosure statements of accused Amit Saxena on different dates by two different police officials. Secondly, there is total lack of corroboration of the alleged recoveries by any independent witness. PW32 Mr. Deepak Singh, who is witness to State vs. Meenu Diwan & Anr. Page No. 61/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar recovery of pink bed sheet and PW38 Sh. Jai Ram, who is witness to alleged sale of plastic rope to Amit Saxena have not supported the case of prosecution and did not depose against accused Amit Saxena. It is not case of noninclusion of public witness in recovery rather the public witnesses allegedly joined by the police investigation have denied to support the case of prosecution. The denial of case of prosecution by the public witnesses has raised more doubts about its correctness and genuineness. Further, the status of the concerned Samsung mobile phone has not been established on record as neither it is stated by any witness that the deceased was carrying the said phone with him on the fateful day nor the same has been duly identified through a judicial process during investigation. Further, the concerned IO has not made any site plan of the place of recoveries and the exactness of the place of recovery has not been established. Further, there is no proof of departure and arrival entries at the police station regarding the movement of the police team with accused Amit Saxena. Further, the alleged recoveries of bed sheets have been effected after six days of the alleged incident from an open place accessible to all and such a recovery becomes valueless. In view of above State vs. Meenu Diwan & Anr. Page No. 62/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar facts and circumstances, all the recoveries shown to have been effected at the instance of accused Amit Saxena are under serious doubts.
So far as case against accused Deepak Malhotra is concerned, the same is based on his two disclosure statements dt. 10.12.2003 and 11.12.2003 besides recoveries of a purse and plastic cane having chance print similar to that of Deepak Malhotra. In this regard, it is argued on behalf of accused that recoveries are not conclusive and reliable as no public witness has been joined, recovery has been effected on 12.12.2003 I.e after one or two days after recording of disclosure statements, making the recoveries seriously doubtful, and that no permission of the Magistrate has been taken before taking specimen fingerprint of accused Deepak Malhotra. In view of above contention, the ld. Counsel has relied upon AIR 1972 SC 975 (delay in recovery) and 2002 (3) JCC 2022 (permission for specimen fingerprint).
After careful perusal of record, the said recoveries are found to be under serious doubt due to various reasons. Firstly, it is not explained as to what was the occasion for recording of two different State vs. Meenu Diwan & Anr. Page No. 63/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar disclosure statements of accused Deepak Malhotra on different dates. Secondly, there is total lack of corroboration of the alleged recoveries by any independent witness. Further, the status of the concerned purse has not been established on record as neither it is stated by any witness that the deceased was carrying the said purse with him on the fateful day nor the same has been duly identified through a judicial process during investigation/trial. Further, the concerned IO has not made any site plan of the place of recoveries and the exactness of the place of recovery has not been established. Further, there is no proof of departure and arrival entries at the police station regarding the movement of the police team with accused Deepak Malhotra. Further, the alleged recovery of plastic cane has been effected after seven days of the alleged incident from an open place accessible to all and such a recovery becomes valueless. Further, the recovery of plastic cane has not been effected on the day of recording of disclosure statement I.e 11.12.2003 and the same has been effected on 12.12.2003 and clearly there is delay in recovery. In view of above facts and circumstances, all the recoveries shown to have been effected at the instance of accused Deepak Malhotra are also under serious State vs. Meenu Diwan & Anr. Page No. 64/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar doubts.
In respect of recoveries effected from accused Meenu Diwan, it is the case of the prosecution that credit card and cheque book of the deceased were recovered from the house of accused Meenu Diwan and that certain articles related to deceased were recovered at her instance from the place of burning of dead body. It is argued by the counsel for accused that the facts and circumstances leading to arrest, recording of disclosure statement and the alleged recoveries made at the instance of accused Meenu Diwan are doubtful. It is submitted that the said accused was already in custody of the police before the date of her actual arrest shown by the police and the whole proceedings regarding arrest is nothing but a fake exercise. It is submitted that it is clear from the evidence that the family members of the deceased and the police were aware about the call details and acquaintance of Meenu Diwan with the deceased from the very inception and at least from 06.12.2003. Further that it is also clear from the statement of wife of deceased Smt. Mohini Gupta (PW5) that they were suspecting Meenu Diwan from the very first date. PW59 SI Nageen Kaushik has stated that all the accused persons were interrogated State vs. Meenu Diwan & Anr. Page No. 65/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar on 08.12.2003 and that accused Meenu Diwan was interrogated at the office of DCP. Further that accused Meenu Diwan was being interrogated by different police teams and ultimately her arrest was shown on the night of 09/10.12.2003 while infact she was in custody since 06.12.2003. It is argued that accused Meenu Diwan has not been arrested and interrogated in a lawful manner and there is gross violation of provisions of Cr.P.C and the Constitution of India. It is further submitted that all the recoveries are planted ones and not covered by section 27 of The Indian Evidence Act.
So far as recoveries from the place of burning of dead body are concerned, the same have already been discussed in previous paragraphs. Apart from said articles, a credit card and cheque book pertaining to deceased are shown to have been recovered at the instance of accused Meenu Diwan. After careful perusal of record, the said recoveries are found to be under serious doubt due to various reasons. Firstly, there is total lack of corroboration of the alleged recoveries by any independent witness. Further, the status of the concerned credit card has not been established on record as neither it is stated by any witness that the deceased was carrying the said credit card with him on the fateful day nor State vs. Meenu Diwan & Anr. Page No. 66/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar it has been proved that the said card belongs to deceased or it was ever issued to him. Further, the concerned IO has not made any site plan of the place of recoveries and the exactness of the place of recovery has not been established. Further, there is no proof of departure and arrival entries at the police station regarding the movement of the police team with accused Meenu Diwan. Further, the recovery of concerned cheque book is inconsequential as neither the cheques are stated to have been signed by the deceased nor there is any attempt to misuse the same. Similarly, there are no allegations regarding attempt to misuse the credit card. Moreover, if case of the prosecution regarding arrest of Meenu Diwan is taken to be correct, then it is highly improbable that the accused Meenu Diwan would preserve the credit card and cheque book belonging to deceased for 56 days when as per own case of prosecution, she was under suspicion and aware about such suspicion from the very first day.
It is also case of prosecution that accused Meenu Diwan and her husband accused K.S. Sirish threw the two mattresses of blue and pink colour, which were present on the bed where the deceased Dr. R.K. Gupta was allegedly killed, in the dustbin, which were subsequently State vs. Meenu Diwan & Anr. Page No. 67/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar removed by Chokidar Rajinder Singh and thereafter recovered by police. The prosecution has examined PW10 Sh. Raj Kapoor, who is security guard posted in the building situated near the MCD dustbin and he claimed that he saw accused Meenu Diwan and K.S. Sirish throwing the said two mattresses and that the same were subsequently taken by MCD sweeper. This witness supported the case of prosecution in his examination in chief but he has turned hostile during his cross examination and denied having seen the accused through the mattresses. Ld. Addl. PP submitted that his crossexamination be discarded as the same has been recorded after a gap of several days and there are chances that he has been won over and trying to wriggle out of the situation. The contention of Ld. Addl. PP seems to be forceful in view of the judgment of Hon'ble Supreme Court in Khujji vs. State of M.P AIR 1991 SC 1853, which is referred by the Ld. Addl. PP. The testimony of PW10 is to be analyzed in light of the testimony of PW20 Sh. Rajender Singh, who claims to be Chowkidar of the Khatta (dustbin). He has deposed about removal of mattresses from Khatta and recovery of the same by the police from his possession. PW10 has not named PW20 in his statement State vs. Meenu Diwan & Anr. Page No. 68/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar and he has referred to the MCD sweeper. There is no confrontation between PW10 and PW20 and it is not clear if it was PW20 who was seen removing the mattresses by PW10. PW20 has not deposed about the persons who have put the mattresses in the Khatta. Further PW20 has denied having made any statement to police and the genuineness of the police investigation in this regard comes under doubt. Further, there is no proof of presence or employment of either of PW10 or PW20 at the respective places as claimed. In this regard, it is also necessary to mention that human blood was detected during forensic examination from one of the mattress and the same was of blood group AB+ which is not the blood group of the deceased Dr. R.K. Gupta as admittedly his blood group was B +. In view of above facts and circumstances, the facts regarding throwing of mattresses by the accused Meenu Diwan and K.S. Sirish and recovery of the same cannot be said beyond doubts.
With regard to the alleged recoveries effected at the instance of different accused persons, it is to be noted that no independent public witness has been joined in the investigation at the time of recording of the alleged disclosure statements of the accused persons and in absence of any State vs. Meenu Diwan & Anr. Page No. 69/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar such independent witness, the alleged recoveries effected pursuant to such disclosure statement can be discarded. The Hon'ble Delhi High Court in Anil Kumar Goswami vs. State (NCT of Delhi) 2012 (1) JCC 47 has given similar observations and has discarded the alleged recoveries for want of independent witnesses at the time of recording of disclosure statement or at the time of effecting the recoveries.
It is also important that some of the vital recoveries have been allegedly effected from the places situated outside Delhi and in none of the cases the local police has been informed or joined by the IO at the time of recovery. The Hon'ble Delhi High Court in Ramesh vs. State of NCT of Delhi 2013 (1) JCC 50 has discarded the recoveries on the ground that no permission was taken by the investigation officer from competent authority to travel out of Delhi and no information was given to the Local police about arrival of police team from Delhi and no arrival entry was made in the concerned police station. In such circumstances, all the recoveries have come under serious doubt.
Further, it has also been noticed that almost none of the recoveries have been effected strictly in terms of section 27 of the Indian State vs. Meenu Diwan & Anr. Page No. 70/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Evidence Act and the facts leading to alleged recoveries have been narrated in a general manner. It is not clearly and categorically deposed by the relevant witnesses of Delhi Police that the recoveries were actually effected in pursuance to the disclosure statements and at the exclusive instance of the accused persons. Certain vital contradictions are also noticed in the testimonies of different witnesses including the police witnesses regarding the alleged recoveries.
In view of above discussion, it is clear that the alleged recoveries effected by the IO are not as per law and there are serious doubt in the case of prosecution in this regard. Even otherwise, the recoveries if any are merely a corroborative piece of evidence, which is to be analyzed in light of other material available on record.
MEDICAL EVIDENCE
17. As per case of prosecution, on the application of Gurgoan police, Dr. Sanjeev Malhotra conducted the autopsy on the dead body of unknown person on 07.12.2003 (Ex. PW30/A) and as per opinion of State vs. Meenu Diwan & Anr. Page No. 71/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar doctor, the time between the death and postmortem was within two months. Further as per report of Dr. Sanjeev Malhotra, the cause of death could not be ascertained. Subsequently a medical board was constituted to perform a DNA test and its report, the medical board has opined about the time since death and reported that time since death could be about four days, which is contradictory to the report given by the autopsy surgeon Dr. Sanjeev Malhotra. Since, the report of the autopsy surgeon was not in strict consonance with case of prosecution, the contention of Ld. Defense counsel that second examination by the medical board at AIIMS is an effort to wriggle out of the documentary evidence in form of postmortem report, can not be taken as totally baseless.
Hon'ble Supreme Court in 2011 (4) SCC 249 has observed that the opinion of the doctor who examined the deceased and conduct postmortem is the only competent person and his opinion on such evidence should not be discarded.
So, the two different reports regarding time since death have also added a bit in the already existing doubts in the case of prosecution. As mentioned above, the cause of death has not been opined by the doctor State vs. Meenu Diwan & Anr. Page No. 72/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar at all.
CONDUCT/DEPOSITION OF THE FAMILY MEMBERS OF DECEASED
18. The prosecution has examined some family members of deceased as prosecution witnesses. PW1 Sh. J.K. Gupta is real brother of deceased and he is the complainant in this case. PW5 Smt. Mohini Gupta is wife of deceased Dr. R.K. Gupta. PW13 Sh. Krishan Kumar Gupta is brotherinlaw (Sadhu) of the deceased and PW18 Dr. Manu Gupta is daughter of PW1 Sh. J.K. Gupta. It is argued on behalf of accused persons that the conduct of the family members of deceased is not upto the mark and there are material inconsistencies and contradictions in their statements. It is submitted that the statement of the family members of the deceased are not reliable as there are certain vital improvements as well there in. On the other hand, it is submitted by Ld. Addl. PP that there are no serious contradictions in the statements of these witnesses and State vs. Meenu Diwan & Anr. Page No. 73/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar contradiction if there is any, is minor and natural and has occurred due to length crossexamination.
If the testimonies of these witnesses are perused, some important facts are noticed therein. It is not the case of prosecution that before pointing out of the place of burning and recovery of the wrist watch and shoe etc. of the deceased from Gurgoan they were aware about the said place or had any intimation or information from Gurgoan police or PGI Rohtak, but the facts deposed by PW1 Sh. J.K. Gupta suggest to the contrary. The said witness has stated in his statement that on 11.12.2003 before going to PS Rajender Nagar, he had gone to medical college Rohtak and there he had come to know from the staff as to where from the dead body of his brother had been seized by the police and got postmortem and cremated at Sewa Samiti Road. Though, this fact cannot be challenged by terming it as an improvement in the statement because this fact has come in the crossexamination and not in examinationin chief but this fact has raised a very serious doubt regarding the genuineness of the case of prosecution as discussed earlier also. If this witness was aware about all the relevant facts regarding the place of State vs. Meenu Diwan & Anr. Page No. 74/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar burning of dead body in Gurgoan, how can the prosecution base its case on the alleged recoveries made at the instance of accused persons from Gurgoan in presence of this witness.
Further, the PW5 Smt. Mohini Gupta has stated in her statement that there was a talk between her husband Dr. R.K. Gupta and accused Meenu Diwan in the morning on 05.12.2003 when she was taking tea with her husband and that her husband told Meenu Diwan that he would have lunch with her. This fact is totally inconsistent with the overall development of the case on 05.12.2003 and 06.12.2003. This fact was not brought to the notice of the police in the first instance nor any effort was made to contact Meenu Diwan until before 12.00 noon on 06.12.2003. Even this fact was not mentioned in the FIR despite the fact that PW5 Smt. Mohini Gupta and PW18 Manu Gupta were present in the police station alongwith PW1 Sh. J.K. Gupta at the time of registration of FIR after returning from Cannaught Place area where they met Meenu Diwan.
PW 18 Dr. Manu Gupta has deposed that on 06.12.2003 his aunt Ms. Mohini Gupta had a talk on her phone (PW18) with Meenu State vs. Meenu Diwan & Anr. Page No. 75/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Diwan. She has been crossexamined in detail and it reveals from her testimony that most of the facts told by her are based on hearsay.
Certain other inconsistencies and improvements are also seen in the testimonies of above witnesses.
DOUBTS RAISED BY THE HOSTILE PUBLIC WITNESSES
19. The prosecution has cited several witnesses in the list of witnesses showing them to be independent public witnesses who joined the investigation at different stages. Most of such witnesses have failed to support the case of prosecution when examined in court. Statements of witnesses i.e PW3, 8, 10, 14, 15, 20, 22, 25, 32, 33, 38, 41, 51, 56, 57, 62, 64, 65 and 66 are such witnesses, who have been cited by the prosecution to substantiate the allegations against the accused persons but they failed to support the case of prosecution. The failure of these witnesses to support the case of prosecution has raised serious doubts about the genuineness and correctness of the case of the prosecution and fairness of the investigation. The case would not have been so serious if State vs. Meenu Diwan & Anr. Page No. 76/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar such witnesses were not cited in the list of witnesses. Some of these witnesses have deposed about the police atrocities. Such facts render the investigation dishonest and unfair and reflect the shoddy manner of conducting the investigation. Out of these witnesses PW3, 8 & 33 are witnesses relating to last seen evidence but they did not support the case of prosecution. PW10 & 20 are witnesses relating to recovery of mattresses and they have also not deposed convincingly in support of the case of prosecution. PW14 Sh. Sunder Lal who is a witness regarding recovery of Cielo car pertaining to deceased, has also failed to support the case of prosecution. PW15 Sh. Avdesh Kumar Singh, who is a witness regarding sale of gold coins to Meenu Diwan has also failed to support the case of prosecution. PW22 Sh. Jitender is the driver of Qualis Car, in which the accused persons allegedly took lift but this witness has also denied this fact and did not identify the accused persons. PW25 Sh. Babu Khan is the witness regarding taking away of parked WagonR car but the witness has not supported the case. PW32 Sh. Deepak Singh is the witness regarding recovery of pink bedsheet at instance of Amit Saxena but the said witness has failed to depose as per case of prosecution and did State vs. Meenu Diwan & Anr. Page No. 77/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar not identify the accused. PW34 Smt. Ganga Devi was the maid of the tenant of accused Meenu Dewan and she has turned hostile regarding role of accused. PW38 Sh. Jai Ram is the witness who allegedly sold plastic rope to accused but he has also failed to support the case of prosecution. PW41 Sh. Ram Prasad is Chokidar of workshop, where WagonR car was parked and this witness has also not supported the case of prosecution in its entirety. PW51 Sh. Vinay Kumar is Exemployee of Meenu Diwan and he has also not supported the case of prosecution. PW56 Sh. Ram Avtar is owner of STD booth from where accused Amit Saxena made a call regarding ransom but this witness has also not identified the accused. PW7 Sh. Tarun Batra allegedly sold gloves to accused Amit Saxena but his testimony is not specific. PW62 Sh. Ravi Rajput allegedly sold eatable to accused Deepak Malhotra but when examined in court he did not support the case of prosecution. PW64 Sh. Chain Singh and PW65 Sh. Sher Singh are the witnesses pertaining to IOC petrol pump from where petrol was purchased by accused but both of these witnesses failed to identify the accused. PW65 even stated that he was beaten up by the police during investigation. PW66 is the dry cleaner, who cleaned the State vs. Meenu Diwan & Anr. Page No. 78/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar clothes of accused Meenu Diwan but his testimony is also not specific.
The failure of so many public witnesses who are stated to be independent public witnesses by the police has caused serious dent in the prosecution story.
CONCLUSION
20. It is well settled law that fouler the crime is, the clearer and plainer ought the proof to be. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. (ref. Balwinder Singh vs. State of Punjab in AIR 1996 SC 607).
Similarly in Hanumant vs. State of M.P 1953 CrLJ 129 the Hon'ble Supreme Court has observed that in dealing with circumstantial evidence, rules specially applicable to such evidence must be kept in State vs. Meenu Diwan & Anr. Page No. 79/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. It is also observed in the same judgment that there must be a chain of evidence so complete as not to leave any reasonable grounds for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probabilities the act must have been done by the accused.
If the material available on record is analyzed in light of above discussion, it can be said that most of the vital circumstances relied upon by the prosecution have remained unproved as per law. There are some circumstances, particularly the call details timing and location etc. which are proved to some extent but not in a conclusive manner. Such partial evidence can not be made basis for conviction particularly, when other circumstances like motive, last seen and recoveries are pleaded but not proved as per law. Some of the facts brought on record by prosecution have been rather disproved e.g. alleged recoveries at the place of burning of dead body at Gurgoan. If some of the recoveries are found to be totally false and planted one, the genuineness of remaining case also comes under serious doubt. The Hon'ble Supreme Court in State of State vs. Meenu Diwan & Anr. Page No. 80/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar Haryana vs. Jagbir Singh 1978 CLR SC 75 has observed that if in a case involving murder charges, depending wholly upon circumstantial evidence, some of the circumstances are showing existence of padding in prosecution case and certain evidence having been fabricated to implicate the accused, the accused is entitled to acquittal on that score.
All the circumstances relied upon by the prosecution have the element of strong suspicion but have not been proved conclusively beyond reasonable doubts. The statements of witnesses are full of contradictions, omissions and improvements. Virtually, there is no clinching evidence on record without infirmities on any circumstance. The accused can not be convicted on the basis of scanty, unreliable and faulty investigation which has gaps and holes. Not a single circumstance spoken by the witnesses inspire confidence to establish the guilt of the accused.
In view of above discussion, I am of the view that the evidence adduced by the prosecution is not sufficient to record the guilt for the offences the accused persons have been charged with. Various incriminating circumstances relied upon by the prosecution are not sufficient to draw an inference of guilt of accused persons and the chain of State vs. Meenu Diwan & Anr. Page No. 81/82 SC No. 33/1/14 FIR No. 259/03 P.S Rajender Nagar circumstances has not been cogently or firmly established and the circumstances have no definite tendency to unerringly point toward the guilt of the accused. The accused persons are entitled to benefit of doubts existing in the case of prosecution.
Hence, in these circumstances, all the accused persons namely Meenu Diwan, Amit Saxena, Deepak Malhotra and K.S. Sirish are acquitted of the charges framed against them.
ANNOUNCED IN THE OPEN COURT (SANJAY JINDAL)
TODAY i.e.ON 10 JULY, 2014 ASJ:04:WEST:THC:DELHI
th
10.07.2014
State vs. Meenu Diwan & Anr. Page No. 82/82