Delhi District Court
State vs . 1.Sanjay Kashyap @ Omi on 28 September, 2018
IN THE COURT OF SH. JAGDISH KUMAR , ADDITIONAL SESSIONS JUDGE-02 (WEST) , DELHI. New S.C No. 56475/2016 Sessions Case No. 65/3/12 Assigned to Sessions on 12.01.2012 FIR No. 177/2011 Police Station Mundka Under Section 302/120-B/380/411 IPC Charged under section 302/120-B/380/411 IPC State Vs. 1.Sanjay Kashyap @ Omi S/o Sh RamSwaroop R/o Gali No.8, D,Block, Dass Garden,Near Fauzi Dairy, Baproulla Vihar, Delhi 2. Mohd Murtaza S/o Abdul Aziz R/o H. No. 682, Gali No.14, Laddha Wala North Muzaffar Nagar U.P. 3. Mohd Salim S/O Mohd Farid Ahmad Mohalla Mirzapura, Basai Kirat Pur, Bijnour, U.P. Arguments heard on 24.09.2018 Date of Judgment 28.09.2018 Final Order Acquitted Appearance(s) : Sh.R.S. Mangal Murti , Ld. Addl. PP, for the State. Sh Dinesh Sharma Ld Cl for accused Sanjay Kashyap. Sh Aparbal Singh Ld Cl for accused Mohd Murtaza and Mohd Salim JUDGMENT
PRELUDE F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 1 of 53
1. The case pertaining to the charge sheet filed u/s 173 (2) Cr.P.C, in respect of FIR No. 177/2011, registered for the alleged offence U/s 302/120B/380/411 IPC at PS Mundka, Delhi. The charge sheet was committed to the Ld. Sessions Judge (West), vide order dated 11.01.2012 of the Ld. MM, and accused persons were Saint for the trial of offence u/s 302/120B/380/411 IPC.
BRIEF FACTS
2. The brief facts, as per the case of the prosecution, is that on receipt of DD No.22-A dated 24.09.2011, ASI Balwan Singh reached at house no.464, Near Bhagat Singh Park, near village Mundka, Delhi, as a call was relating to murder of a person. Accordingly, the preSaint FIR was registered on the Tehrir being Saint by Inspector Devender Kumar.
3. The investigation of the case was carried on, daughter-in-law of deceased namely Pooja got recorded her statement and stated that at about 2.30 pm her father-in-law had come along with two boys, who were coming to see her father-in-law from last 3-4 days, prior to the date of incident, and went to the room of her father-in-law. After sometime one of those two boy had come with F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 2 of 53 Bread Pakora. It is the case of the prosecution that when Pooja's daughter, at about 4.00 pm, had asked her (Pooja) to take her to her to her grandfather. Then Pooja along with her daughter had went to the room of her father-in-law where she found her father-in-law lying on the bed and her father-in-law's mouth was covered with a "chadar". She had called her father-in-law but he has not responded. Thereafter, she removed chadar from his mouth and found that his neck was slitted. Thereafter, she had gone to her neighborer and someone from the neighborer had call at 100 number.
4. During the course of investigation, the police found that one person namely Sanjay Kashyap had taken a loan of Rs. 20,000/- from the deceased for a period of three months on 20.07.2011, but since he was not in a position to return the money hence he has conspired with co-accused namely Mohd Murtaza, Gulrej @ Gullu and Mohd Saleem who were also in need of money. Accused Sanjay Kashyap had asked co-accused that deceased is having a lot of money and introduced one of the co-accused namely Mohd Salim to the deceased. The accused Sanjay Kashyap has also narrated them the plan to commit crime and as per plan the accused persons F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 3 of 53 have committed the offence U/S 302/120-B/380/411 IPC.
5. During the investigation of the case, IO prepared the site plan at the instance of complainant, got conducted post mortem of deceased Mangal Sain, arrested the accused persons. Statement of witnesses were recorded and after finding sufficient evidences being collected on the file, a challan was filed before the Ld. Ilaqa Magistrate for the offence under section U/S 302/120-B/380/411 IPC against the accused persons.
THE CHARGE
6. After the committal proceedings, the case was Saint to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP for the State and Ld Counsel for the accused, found a prima facie case for the offence punishable under section 302/34 IPC against all the accused persons and prima facie case for the offence punishable U/S 411 IPC against accused Mohd Murtaza. The Charges were framed accordingly vide order dt. 29.02.2012, to which all the accused have pleaded not guilty and claimed trial.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 4 of 53PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined 36 witnesses. The PW3 Puja and PW8 Pradeep are the public witnesses, while other witnesses are either police officials or medical/ experts witnesses who have participated during the course of investigation.
8. PW1 Ct Raj Kumar Yadav was on duty on Extension No.103, in CPCR on the date of incident and at about 05.05 pm, he received a call that one person has been murdered at Bhagat Singh Park, Mundka, Delhi. He proved the PCR Form as Ex PW1/A.
9. PW 2 is Ct Rajinder Kumar, who on 28.11.2011, took the exhibits along with FSL forms from MHC (M) of PS Mundka and deposited the same in FSL Rohini, Delhi.
10. PW3 is Ms Pooja, daughter-in-law of deceased and complainant. She has deposed she was residing along with her husband at the ground floor of house No. 464, Poll No.62, Mundka Delhi and at the first floor of said house , her father-in-law namely F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 5 of 53 Mangal Sain (deceased) and her brother-in-law (Devar) namely Pradeep @ Vicky used to reside. She has deposed that her father-in-law was working as ATI in DTC and he also used to give money on interest occasionally to the public in general. And for the purpose of borrowing money, people used to come to meet her father-in-law at the first floor. She further stated that for the last 3- 4 days, two boys were visiting her father-in-law. On one or two occasions, those two boys used to come in the abSaince of her father-in-law and they used to ask about him. She used to say that her father- in-law was not preSaint and then those boys used to visit later on and used to meet her father-in-law. On one occasion, those boys had taken the mobile number of her father-in-law.
11. She has deposed that on 24.09.2011 at about 2- 2:15 PM, those two boys came and they had asked about her father- in- law. They went away from there and at about 2-2:30 PM, those two boys on the same day came along with her father-in-law and thereafter all the three went at the first floor in the room of her father-in-law. She has further deposed that her father-in-law used to eat Bread Pakoda and she heard that one of the boy was getting down from the first floor for bringing Bread Pakoda for her father-in-law. She has further deposed that on F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 6 of 53 24.09.2011 at about 4 PM, her daughter Ishika asked her to take her to her father-in-law and she along with her daughter went at the first floor. She noticed that TV kept in the room of her father-in- law, was on and it was having maximum volume at that time. She knocked the door twice but there was no response from inside the room. She entered inside the room and saw that her father-in-law was sleeping on the bed and one bed sheet was there on his body.
12. She deposed that she asked her father-in-law as to why the TV is on and that to be in such a loud volume. But there was no response of her father-in- law. She noticed that one bowl having pieces of guava was in turtle position. There was no sign of respiration. She touched the hand of her father-in- law and noticed that there was no response from the vein of his hand. Face of her father-in-law was covered with the bed sheet and she asked as to why he has put the bed sheet on his face. She removed the bed sheet from his face and noticed that the neck of her father-in-law was slitted/cut. She was quite perplexed. She along with her daughter came down and went in front of her house where one lady used to reside to whom she used to call Chachi. She informed about the occurrence to said F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 7 of 53 Chachi and Chacha and their son was also preSaint in their house and they both and other neighbours also came at their house and went at the first floor. Someone informed the police. After some time, police reached at the spot and recorded her statement.
13. She has deposed that those two persons who used to visit her father-in-law were aged about 22- 23 years. One was taller and the other was smaller than him but healthy. Both were of middle complexion. She has identified accused Mohd Murtaza and Mohd Salim in TIP in Tihar Jail and also identified both of them in the Court.
14. PW4 is Dr Manoj Dhingra who along with Dr Deepak Sharma conducted post mortem on the dead body of Mangal Sain and gave Post Mortem report Ex PW4/A. The cause of death was given as due to asphyxia hemorrhage consequent upon cut throat injury which was caused by a sharp weapon and the same was sufficient to cause death in the ordinary course of nature.
15. PW5 is Sh Sandeep who has identified the dead body of his father Mangal Sain vide Ex PW5/A.
16. PW6 is HC Joginder who was working as duty Officer on 24/25.09.2011 and at about 02.25 a.m he made entry vide DD No.5A regarding arrival of Ct F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 8 of 53 Rajinder Singh at the PS. He has exhibited the said DD entry as Ex PW6/A.
17. PW7 is Younus Khan who was running a STD/PCO shop at Rohtak road, Mundka, Delhi near Metro Station and he has deposed that SHO, PS Mundka alongwith three persons came at his shop. He had seen the faces of two persons namely Murtaza and Sanjay Kashyap and both the accused persons identified his booth by saying that they had made a call from his booth.
18. PW8 is Pardeep who is son of deceased. He has deposed that on 24.09.2011, he was preSaint at Krishna Nagar when he received a call from his neighbour that some one had stabbed his father. The witness has deposed that before he reached at his house his father was taken to the hospital. On 25.09.2011, he identified his dead body in the hospital and after the postmortem the dead body was handed over to him. He has deposed that on 26.09.2011, he inspected the room of his father and came to know that belongings of his father including the mobile phones were missing, which were given by him and the lock of the almirah was also found broken. He informed these facts and mobile number of his father to the SHO.
19. He has further deposed that on 06.10.2011, on the F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 9 of 53 instruction of the police he reached at Mundka Metro Station, he joined the investigation and visited Sultanpuri, Bapraula Vihar. He had given a copy of stamp paper signed by his father and some other persons regarding the financial transaction, which was lying in the room of his father. He also identified the signatures of his father at point X on the same. In this stamp paper it is written that Sanjay Kashyap had taken a loan of Rs.20,000/- from his father on interest. He has deposed that during the raid he reached at Baprola Vihar where accused Sanjay Kashyap and Murtaza were apprehended by the police on 06.10.2011. One mobile phone of black colour make Spice were recovered from accused Murtaza and he Identified the same as belongs to his father as he had given the same to his father after its repair. The said mobile phone was sealed in a transparent plastic. The witness deposed that both the accused were arrested and interrogated vide memo Ex.PW8/F & Ex.PW8/G. He has further deposed that IO had conducted their Jama Talashi vide memo Ex.PW8/H & Ex.PW8/J. He further deposed that during interrogation accused made their disclosure statements Ex.PW8/K and Ex.PW8/L. He has identified the mobile phone of his father as Ex.P-1 including the sim.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 10 of 5320. PW 9 is ACP Ramesh Chander who has deposed that on 24.09.2011, DD entry no.22A, Ex PW9/A, regarding murder was marked to ASI Balwan and Insp. Devender who reached at spot. He was also telephonically informed and accordingly he reached at the spot i.e. H.No.464, 1st Floor, village Mundka. Crime Team was already preSaint at the spot. Insp. Devender was recording the statement of Pooja. Crime Team also inspected the spot. Insp. Devender prepared rukka and got lodged FIR through Ct. Ranbir Singh. Insp. Devender filled up form 25.35 and dead body was shifted to Sanjay Gandhi Memorial Hospital.
21.He has deposed that he took up the investigation of the case and made enquiries and prepared site plan. During the inspection of the scene of crime, he lifted the blood stained knife from the floor of the room, and prepared its sketch, measured the same and mentioned the measurements on the sketch. He further deposed that the said knife was converted into a Pulanda and sealed with the seal of RC and given as serial no.1. He lifted cups of green colour having red and blue flowers printed on it, from the table which was placed near the dead body. He kept the same in two separate plastic containers and sealed with the seal of RC and given as serial no.2 and seized the same.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 11 of 5322. He has deposed that he has lifted one steel plate and two steel glasses from the spot and converted it into a Pulanda and sealed the same with the seal of RC and given as serial no.3. He has also lifted one quarter bottle of liquor, make Mc- Donald No.1 and one empty quarter bottle of same make from the table which was placed near the dead body. He kept the same in two separate plastic containers and sealed the same with the seal of RC and given as serial no.4. He has also lifted blood stained bed sheet of red colour which was on the bed where the dead body was found, and converted the same into a Pulanda and sealed the same with the seal of RC and given it as serial no.5 and seized the same. He conducted local enquiry at the spot, recorded the statements of witnesses and deposited the case property in the Malkhana.
23. He has further deposed that he along with SI Dinesh Kumar and other staff went to Mortuary. He prepared the inquest papers and recorded statement of Sandeep and Pardeep respectively. After the post mortem, the dead body was handed over to relatives of the deceased and the doctor handed over him sealed viscera peti and blood samples along with sample seals and clothes of the deceased in a sealed Pulanda. He seized the same. He came back to PS and the case property was F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 12 of 53 deposited in the Malkhana.
24. He has further deposed that on 26.09.2011, he has recorded statement of Pardeep Kumar, son of the deceased. During investigation, lot of persons who had taken money on loan from the deceased were joined in the investigation. The IMEI numbers of the mobile phone of the deceased and some other stolen mobiles were also put under on surveillance. The CDR of the mobile phone of the deceased bearing No. 9350955135 was analyzed and it was found that the deceased was using this mobile number since 22.07.2011. The IMEI numbers were also scanned. The mobile phone of deceased I.e 9350955135 with double sim facility was used by the deceased on 15.05.2011 and on 14/15,17/ and 18 June, 2011. He has deposed that IMEI number of deceased was found active with phone number, 7351567929 on 25.09.2011. The ownership detail of this number was collected and it was found that this number is related to one Manawar S/O Abdul Aziz R/O H. No 682, Gali No.14 Ladha Wala North, Muzaffar Nagar, UP. He has deposed that a raiding party headed by SI Gulshan Nagpal was Saint to Muzaffar Nagar UP. He has deposed that S.I Gulshan alongwith the the police party returned to Delhi and informed him about the facts.
25. He has deposed that 6.10.2011 Shri Pardeep, F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 13 of 53 the son of the deceased was also informed to join the investigation. Scrutiny of the file also revealed that a lady, namely Shanti wife of Ram Swaroop, R/O A-38 Hari Enclave Aman Vihar who was mother of Sanjay Kashyap was joined in the investigation simultaneously with the other money borrowers. He along with staff, son of deceased proceeded to Aman Vihar in search of Sanjay Kashyap and Mohd Murtaza and reached at A-38 Hari Enclave, Aman Vihar. It was known from the neighbourhood of this address that family of Sanjay Kashyap had already sold this house and were staying somewhere in Baprola Vihar as tenant. Accordingly, he along with the staff and Sh Pardeep son deceased reached Baprola Vihar.
26. PW 9 has further deposed that several persons were contacted including informers and it was later on revealed that Sanjay Kashyap's family was staying as tenant in Gali No.8 near Fauji Dairy, Baprola Vihar. He along with the staff entered in Street No.8 and after a little distance noticed that two persons standing in the street. One of them whose name was revealed as Mohd Murtaza, was immediately overpowered and during search a mobile phone M-5252, brand Spice of the deceased with IMEI number 353989032115228 and 353989032215226 was recovered from the shirt F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 14 of 53 pocket of Mohd Murtaza. He has deposed that the other person whose name was known as Sanjay Kashyap was also overpowered. The mobile phone of deceased was checked which was having both the above IMEI numbers. Thereafter, the mobile phone was sealed in a transparent container. The same has been identified by Sh Pardeep, the son of deceased as the phone instrument belongs to his deceased father. The mobile phone and sim card were duly sealed with the seal of RC and taken into police possession through seizure memo already Ex PW8/E. The witness further deposed that accused Mohd Murtaza was interrogated who admitted his involvement in the crime along with his associate Sanjay Kashyap, Mohd Gulrez @ Gollu and Mohd Saleem. His Personal search memo and arrest memo were prepared. Thereafter, disclosure statement of the accused Mohd Murtaza was recorded. Accused Sanjay Kashyap was also interrogated and he was also arrested in this case vide personal search memo and arrest memo already exhibited PW28/B and PW8/F.
27. PW9 has deposed that on 07.10.2011, Sh. Pardeep Kumar son of the deceased produced a Non Judicial stamp paper which he traced from his house in other papers. As per the contents of this paper it was signed by accused Sanjay Kashyap as F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 15 of 53 he had borrowed Rs. 20,000/- from the deceased. This paper was taken into police possession through a seizure memo Ex PW8/C. A request for TIP proceedings of accused Mohd Murtaza was made by the PW9. The witness further deposed that a request for specimen hand writing of accused Sanjay Kashyap was also moved in the concerned Court. Specimen hand writing of accused Sanjay Kashyap were taken by the concerned Court on 10.10.2011. On 15.10.2011, the TIP proceedings were carried out by Ld MM at Tihar Jail and the accused Mohd Murtaza was correctly identified by the complainant Smt Pooja.
28.The PW9 has further deposed that the specimen hand writing were collected from the concerned Court and taken into police possession. He has deposed that accused Mohd. Gulrej and Mohd Murtaza led the police party to the STD shop at village Mundka from where they had called the deceased on phone. The witness stated that he has recorded the statement of the owner of said shop. On the pointing out of accused Mohd. Murtaza and Gulrej the memo of the place of occurrence i.e. House No.464, Village Mundaka was prepared where accused Mohd. Murtaza and co-accused Mohd Gulrej had murdered the deceased.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 16 of 5329. PW 10 is Sh Rajiv Ranjan, Nodal Officer Tata Tele Services Ltd. who had brought the summoned record i.e. CDR of connection (Walky) No.01169507717 from the period 20.09.2011 to 27.09.2011, i.e. Ex.PW10/A. The said connection was issued in the name of Shri Suresh Prasad Shah S/o Baldev Shah, R/o 180, Phase-4, Sector-26, Rohini. He has proved Customer's Application form as Ex.PW10/B and location chart of the aforesaid connection number for the period i.e. 20.09.2011 to 27.09.2011 is exhibited as Ex.PW10/C. He has proved certificate u/s 65 B(4)(c) of the Evidence Act vide Ex PW1-D.
30. PW 11 is ASI Ajit Singh, Incharge Crime Team, who on the directions of IO inspected the scene of crime and lifted three chance prints from the spot. He prepared his detailed Crime report which is Ex.PW11/A and handed over the same to the IO.
31. PW 12 is Ct Neeraj Kumar, who took the sealed sample of this case FIR from the MHC(M), Mundka along with FSL form and priority letter through Road Certificate and deposited the same at FSL Rohini.
32. PW 13 is HC Anil Kumar, Photographer of Crime F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 17 of 53 Team, who has clicked Photographs of the scene of crime from the different angles including the dead body lying on bed. He has proved 9 photographs as Ex. PW 13/1 to Ex 13/9 and the negatives of the same vide Ex. 13/1A to 13/9A.
33. The PW 14 is Sh Chander Shekhar, Nodal officer, Bharti Airtel who has brought the summoned record. As per record the mobile No.9350955135 was registered in the name of one Mangal Sain. He has placed on record photocopy of CAF which is exhibited as Ex PW14/A. This witness has also placed on record the photocopy of identity proof of Mangal Sain which is Ex PW14/B and call details record of the said phone for the period from 1.5.2011 to 31.7.2011 vide Ex PW14/C.
34. PW14 has also placed on record the record of the mobile no. 8968900725 which is registered in the name of Kamaljeet Singh. The CAF copy of the same phone is exhibited by PW 14 as Ex. PW 14/D. The ID proof of said Kamaljeet Singh is Ex. Pw14/E. The call detail record from 24.09.2011 to 06.10.2011 vide Ex. PW14/F & Ex. Pw14/G. The call ID chart of the said phone is Ex. PW14/H and in support of all these documents a certificate U/s 65 B F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 18 of 53 of Indian Evidence Act is Ex. PW14/J.
35. PW 15 Sh. Vijay Shankar, the then Ld MM, who has deposed that on 15.10.2011, he had gone to Jail No.1, Tihar Jail, Delhi for conducting the TIP of accused Mohd Murtaza. The witness has deposed that he has taken all due care while conducting TIP proceeding of accused Mohd. Murtaza. He has deposed that the witness namely Pooja has identified the accused Mohd. Murtaza. The TIP proceedings are Ex.PW3/B .
36. PW 16 ASI Dharam Singh, MHC(M) has deposed that on 25.09.2011, he received two sealed pulandhas containing case property with the seal of 'SGMS' from SHO Insp. Ramesh Chand and he made the entry No. 280 in register No. 19. He has placed on record the photocopy of the same which is exhibited as Ex.PW16/B. He has deposed that on 28.11.2011, on the instructions of the SHO Insp. Ramesh Chand, he Saint case property, in sealed condition to FSL, Rohini, vide RC No. 82/21/11 & 83/21/11 through Ct. Neeraj and vide RC 84/21/11 through Ct. Rajinder.
37. PW 17 is Ct Vinod Kumar who has deposed that on 25.12.2011, he had joined the investigation with SHO Ramesh Chand. Accused Mohd. Salim was F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 19 of 53 interrogated, who made his disclosure statement Ex.PW17/A. He has deposed that accused Mohd Salim took them to Mundka Metro Station and identified the shop Indian Telecom & Watch and disclosed that he had made a call from a PCO. IO prepared the pointing out memo Ex.PW17/B. He has deposed that accused Mohd Salim took them to the spot at House No. 464, Village Mundka and identified the place of occurrence i.e. room at first floor and I.O. prepared the memo Ex.PW17/C.
38. PW 18 is Ct. Babu Lal who has deposed that on 21.10.2011 he joined the investigation with Inspector Ramesh Chand and Ct. Narinder. Accused Mohd. Murtaza and Gulrez @ Gullu (Juvenile) were in police custody. They were interrogated. Thereafter, they took them to Mundka Metro Station and identified the shop Indian Telecom & Watch and disclosed that a call was made from that PCO by accused Salim. IO prepared the pointing out memo already Ex.PW7/A Thereafter, the accused took them to the House No. 464, Village Mundka and got identified the place of occurrence i.e. room at first floor. IO prepared the memo Ex.PW3/D.
39. PW 19 is Sh Rajesh Malik Ld Metropolitan Magistrate, Delhi, who on the application of IO, had taken specimen signature of accused Sanjay F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 20 of 53 Kashyap and sealed the same with the seal of Court. The same are collectively Ex. PX. The order sheet was also marked as PX1.
40. PW 20 is Ct. Ranvir Singh, who deposed that on 24.09.2011 at about 5.15 PM, when he was on patrolling in Mundka Village, Delhi, he got information regarding murder at house No.464, Village Mundka, Delhi. He reached at the spot where he found Insp. Devender along with his staff including ASI Balwan and Ct. Rajesh. He joined the investigation. He deposed that the IO called the crime team. He was given the rukka for registration of the FIR and he got the FIR registered. He reached back at the spot with a copy of FIR around 8.30 PM and handed over the same to the IO.
41. PW 21 ASI Balwan Singh has deposed that on 24.09.2011 at about 5.10 PM, he received a call vide DD Entry No. 22A regarding murder. He along with Ct. Rajesh went to the spot at around 5.30 PM. i.e. house No.464 Near Bhagat Singh Park, near village Mundka, Delhi. After sometime, Insp. Devender along with SI Gulshan along with other staff also reached at the spot. He had handed over the copy of DD Entry No. 22A to IO Insp. Devender. He has deposed that when they reached at first floor, there was a dead body of one person namely F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 21 of 53 Mangal Sain on the bed and he was wearing only underwear (Kachha) and his throat was cut by a sharp edge i.e. knife. A knife was lying below the bed on the side of head of dead body. There was a table near the bed and two quarters of wine make Mcdowell No.1 and two cups were on the table. Out of two cups one was empty and other was full of wine. Out of the two quarters of wine, one was sealed and other was empty.
42. PW21 further deposed that there were two steel glasses on the table. One steel plate was also lying on the bed in the upside down. Below the plate there were pieces of Guava, lemons and bread pakoda. There was one diary along with piece of papers were also lying on the bed. One cellphone was also lying below the bed. He has deposed that Crime Team reached at the spot and took the photographs of the spot and lifted the finger prints from there. The witness deposed that the statement of Pooja was also recorded by the IO Insp., Devender in his presence. IO prepared Rukka and sent the same to PS Mundka for registration of the case. SHO also reached at the spot and at the instruction of SHO, he sent the dead body to mortuary for postmortem under the supervision Ct. Rajesh.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 22 of 5343. PW 22 is Ct Suresh Kaushik who has deposed that on 24.09.2011, he along with the crime team reached at the spot. He developed the finger prints from the steel glass, steel plate and also from one of the quarter bottle. He prepared the crime visit report Ex PW22/A.
44. PW 23 is HC Satyender who has deposed that on 24.09.2011, at about 5.10 pm, he received a wireless call from West Distt control room regarding murder of a person. On receiving this information he recorded DD 22-A vide Ex PW9/A.
45. PW 24 is Ct. Rajesh Kumar who has shifted the dead body to Sanjay Gandhi Memorial Hospital's Mortuary and till the next day the body remained under his supervision.
46. PW 25 Ct Rajinder has taken the copy of DD No.26-A and copy of FIR to the residence of the then Addl CP (West) and concerned MM at Tis Hazari.
47. PW 26 Inspector Mahesh Kumar is a Draftsman of Crime Branch and he has deposed that on 14.12.2011, at the request of Inspr. Ramesh Chand he has visited the place of occurrence i. e. first and ground floor of house No.464, Village Mundka. At the spot he prepared rough notes and took measurement at the instance of Inspector Ramesh F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 23 of 53 Chand. Later on he prepared scaled site plan which is Ex. PW 26/A.
48. PW 27 Sh Kawaljeet Singh has deposed that mobile connection No.8968900725 was not got issued by him but someone got it issued in his name on his photograph and ID Card. He has deposed that he do not know who is using this number. He has deposed that his photograph and ID card has been wrongly used by someone to obtain the aforesaid number.
49. PW 28 SI Dinesh Kumar has deposed that on 25.09.2011, he along with SHO Inspector Ramesh Chander went to SGM Hospital, Mangol Puri where post mortem on the body of deceased Mangal Sain was conducted. He has deposed that on 20.12.2011, accused Salim has surrendered before the Court of Ld. MM, Tis Hazari, Delhi. He had arrested him vide arrest memo Ex. PW 28/A and conducted the personal search of the accused and prepared the search memo Ex. PW 28/B. The witness has also deposed that he had also moved an application for TIP of accused Salim.
50. PW 28 HC Subhash has deposed that on 18.10.11 he along with SHO Inspector Ramesh Chander went to the Court of Sh. Hem Raj, Ld. MM, Delhi where specimen signature of accused Sanjay Kashyap was taken by SHO Inspector Ramesh F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 24 of 53 Chander and seizure memo of the same was prepared. He has further deposed that on 19.10.11 he along with Inspector Devender Kumar, ATO, Mundka took remand of accused Mohd. Murtaza. Thereafter, he along with accused Mohd. Murtaza, Inspector Devender Kumar, went to Khanna, Ludhiana and Chandigarh Mani Majra in search of another accused Mohd. Salim. He has deposed that on 20.10.11, he went to Mohalla Gungar Patti, Near Badi Masjid, Village Sujru, PS Kotwali, District Muzaffar Nagar, UP in search of accused Gulrej @ Gullu s/o Umar Daraj. And at about 6:30 p.m., at the instance of accused Mohd. Murtaza, accused Gulrej @ Gullu was arrested from his house situated at Mohalla Gungar Patti, Near Badi Masjid, Village Sujru, PS Kotwali, District Muzaffar Nagar, U.P vide arrest memo Ex. PW 29/A.
51. PW 30 Hussain M. Zaidi, Nodal Officer, Idea Celluar Ltd has brought the record of mobile no. 7351567929 registered in the name of Manawar s/o Aziz . He has proved CAF as Ex. PW 30/A, ID Proof of Manawar Mark 30/X and CDR of the aforesaid said mobile number from 20.09.11 to 10.10.11 vide Ex. PW 30/B. He has also brought the record of mobile no. 9914558486 which is registered in the name of Mohd. Salim s/o Mohd. Fakir. He has proved self attested copy of the CAF as Ex. PW F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 25 of 53 30/C; Photocopy of ID Proof of Mohd. Salim Mark 30/Y. The CDR of the above said mobile number from 20.09.11 to 10.10.11 as Ex. PW 30/D and the certificate of U/s 65 B is Ex. PW 30/C.
52. PW 31 is Inspector Devender Kumar, who is first IO of the case, he has deposed that on 24.09.2011 at about 5.15 PM he received an information through wireless regarding murder of a person at Bhagat Singh Park, Mundka, Delhi. He reached at the spot i.e. House No. 464, Bhagat Singh Park, Mundaka, Delhi and found dead body of a person lying on the bed at the first floor of the house. ASI Balwan Singh and Ct. Rajesh also reached at the spot from PS Mundka. Later on, the dead body was identified as of one Mangal Sain S/o Shri Sher Singh, aged about 58 years. The throat of the deceased, Mangal Sain was cut by a sharp edged weapon. He also found that a bloodstained vegetable knife was lying on the floor below the bed towards the head of the dead body of deceased.
53. The witness deposed that there was a table near the bed and two quarters of Whisky, make Mcdowell No.1, and two tea cups were lying on the table. Out of the said two cups, one was empty and other was filled with whisky. Out of the said two quarters of whisky, one was sealed and other was empty. Two F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 26 of 53 steel glasses were also lying on the table. One steel plate was also lying on the bed in the upside down condition. And underneath the plate, pieces of Guava, lemons and bread pakoda were lying. One diary and pieces of papers were also lying on the bed. One cellphone was also lying below the bed on the floor. This witness has called the Crime Team at the spot. Crime Team reached at the spot and took the photographs of the spot. He also recorded the statement of Pooja W/o Sandeep in the presence of ASI Balwan Singh and prepared the Rukka and sent the same to PS Mundka for registration of FIR through Ct. Ranbir Singh. He also filled up the form No. 25.35 (1)B for postmortem of the dead body. Thereafter, the then SHO reached at the spot who took over the investigation and this witness has handed over all relevant documents to him, including copy of rukka, Form No.25.25(1)B and the information DD.
54.The witness has deposed on 19.10.2011 he again joined the investigation and he along with HC Subhash and accused Mohd. Murtaza under custody of Ct. Devender and Ct. Vinod, left PS for search of the co-accused persons in Punjab and UP. On 20.10.2011, he reached at PS Kotwali, Muzaffar Nagar, UP and made DD Entry No. 43 which is Ex.PW31/D and conducted search at village Gurju, F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 27 of 53 Gujjarpatti at the instance of accused Sanjay Kashyap. Father of Gulrej @ Gullu produced the accused, Gulrej for interrogation and accused Sanjay Kashyap identified him. Accused Gulrej @ Gullu was thereafter arrested vide arrest memo Ex.PW29/A. He also prepared, a descriptive arrest form of Accused Gulrej. He had also filled up the Body Inspection Memo Ex.PW31/F. A disclosure memo Ex.PW 31/G was prepared by him in the presence of Shri Umar Dharaj, father of accused Gulrej @ Gullu. Thereafter, Raiding Team returned to PS Kotwali and lodged DD No.52. Ex.PW31/H. He has deposed that on 21.10.2011 he had produced the accused Gulrej @ Gullu before the court and handed over the case file to the then SHO, Mundka for further investigation.
55. PW 32 S.I Gulshan Nagpal has corroborates the version being given by PW Ct Ranbir, Inspector Devender Kumar, ASI Balwan Singh and Ct. Rajesh. He has deposed that son of deceased namely Pardeep Kumar, disclosed that some cash, jewellery and mobile phones were found missing from the wooden almirah in their house. The CDRs of deceased Mangal Sain was analyzed, search of mobile phone through IMEI search was made. It was revealed that a mobile phone was activated on 25.09.2011 in a mobile number 7351567929 having F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 28 of 53 IMEI number 35498903221522. The subscriber of this phone number was found as one Mohd Manawar S/O Abdul Aziz R/O 682, Gali No.14, Laddawala North, Muzaffer Nagar, UP.
56. He has deposed that as per directions of SHO Mundka on 5.10.2011 he along with staff went to Muzaffar Nagar, UP where he interrogated the above said Mohd Manawar, who told that the said mobile with dual sim facility was given to him by his brother Mohd Murtaza on the night of 24.09.11 and therefore he started using the same. The witness further deposed that Manawar further told that Mohd Murtaza was having the phone and had gone to Delhi on 04.10.2011 to meet his friend Sanjay Kashyap.
57. He has deposed that on 6.10.2011, he along with IO/SHO Mundka and other staff left the PS for investigation of the case. At Mundka Metro Station, son of deceased, namely Pardeep Kumar also joined them and they went to Aman Vihar, Sultanpuri, Delhi where it revealed that accused Sanjay Kashyap had already shifted to Baprola Vihar. After that they went to Baprola Vihar, Delhi where accused Sanjay Kashyap and Mohd Murtaza, were apprehended from Gali No 8 D- Block ,Baprola Vihar, Delhi. The mobile phone make Spice, Model M-5252 of the deceased was recovered from the shirt F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 29 of 53 pocket of Sanjay Kashyap. The mobile was identified by witness Pradeep at the spot. The same was checked and sim number 7351567929 was also found in the phone.
58. The witness (PW32) deposed that the phone along with the sim card was kept in a plastic container and sealed with the seal of RC and seized vide seizure memo already Ex PW8/E. After that both the accused persons were interrogated and arrested in this case. IO also prepared their arrest memos, Ex PW8/F and PW8/G, the personal search memos as Ex PW8/H and PW8/J. IO also recorded their disclosure statement .
59. PW 33 Shri A.L. Daksh Deputy Director (Documents), Truth Lab, has deposed that on 10.11.2014, a sealed parcel containing documents were received at Truth Labs and after opening the parcel, the portions Mark Q1 and Q2, marked on a Stamp Paper of Rs.10/- bearing No.43AA725336 and standard specimens of accused Sanjay Kashyap S1 to S5 (writing) and S6 to S15 (signatures) were received for examination and report. He thoroughly examined the above documents with Scientific aids at Truth Labs and opined that the person who wrote the specimen writings Mark S1 to S5 (Writings) and S6 to S15(Signatures) also wrote the questioned signature Marked Q1 and writings Marked Q2 and F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 30 of 53 he had given detailed reasons in his report Ex.PW33/A .
60. PW 34 is Dr Rajendra Kumar, (Retired) Dy Director, FSL Rohini who has deposed that on 28.11.2011 four sealed parcels were received in the Laboratory from SHO PS Mundka, New Delhi in connection with present case. All the parcels were opened and examined by him and after examination he gave his Biological report No.2011/B 7237, which is exhibited as Ex PW34/A. He deposed that blood was detected on exhibits 1, 2, 3 4a, 4b and 4c,. He gave his detailed serological report which is Ex PW34/B.
61. PW 35 is Sh Amit Rawat, Asstt. Director ( Chemistry) FSL, Delhi who has deposed that on 28.11.2011, one sealed wooden box was received in the Laboratory from SHO PS Mundka, New Delhi in connection with present case and the same was marked to him for chemical examination. After examination he gave his chemical report No.2011/C 7228, which is Ex. PW35/A .
62. PW 36 Subhash Chand, Finger Print Expert has deposed that on 09.12.2011, he received change prints mark Q-1 to Q3, crime scene report and specimen finger/palm slips of deceased Mangal Sain, accused Sanjay Kashyap, Mohd Murtza, and F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 31 of 53 Mohd Gulrej, After examination he gave his report Ex PW36/A. Chance print mark Q-1 2 Q2 were found identical with finger print of the deceased and chance print mark Q3 were found unfit for comparison.
STATEMENT OF ACCUSED PERSONS
63. After completion of the prosecution evidence, the statement of accused persons, under section 313 Cr.P.C., were recorded so as to enable them to personally explain the circumstances appearing in the evidence against them. All the incriminating evidence were put to the each accused to which they have denied, as being incorrect and have stated that a false case has been registered against them and they have been falsely implicated in this case. Accused Sanjay Kashyap and Mohd Murtaza have chosen to lead defence evidence.
DEFENCE EVIDENCE
64. DW1 Samay Pal Atri, S.S.I Kotwali Nagar Muzafar Nager UP has placed on record a carbon copy of the entry made at PS Kotwali Nagar, Muzafar Nagar, U.P. on 05.10.2011 at Sl No.23 which is exhibited as Ex DW1/A. ANALYSIS & DETERMINATION
65. I have heard the Ld. Addl. Public Prosecutor Sh.Mangal Murti for the State and Ld Counsel for the accused F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 32 of 53 persons. I have carefully perused the entire record including the testimonies of prosecution witnesses, documentary evidence and the statements of the accused person. I have given a thoughtful consideration to the same.
66. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence with which the accused person are charged with. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused persons become entitled to the benefit of doubt ultimately leading to their acquittal. Emphasis can be relied upon the judgment of Hon'ble Supreme Court titled Sadhu Singh Vs. State of Punjab ( 1987 (3) Crimes 55 )
67. Now in the instant case, the accused has been charged with the offence u/s 302/120-B/404/34 IPC.
68. The court shall firstly deal with the essential ingredients which prosecution is required to prove in order to establish the charge against the accused persons.
69. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 33 of 53 maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained.
70. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on judgment titled as Narsingh Challan Vs. State of Orissa (1997) 2 Crimes 78
71. For the purpose of instant case, the State has tried to cover the case within the purview of section 300, IPC for which it is required to be objectively proved by the F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 34 of 53 prosecution that :-
(i) there is a death of victim.
(ii) Such death has been caused due to acts of the accused persons who have acted in furtherance of their common intention.
(iii) The intention of the accused persons was either to cause death or caused such bodily injury which is sufficient in ordinary course of nature to cause death.
72. Further pertinent to mention here that in cases like death / murder generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proven facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 35 of 5373.The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in Delhi. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved it must be such as to show that within all human probability the act must have been done by the accused."
74.This was followed consistently by the Courts in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 Where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 36 of 53(1) the circumstances from which the conclusion of guilt is to be drawn should fully established. (2)the facts so established should be consistently only with the hypothesis of the guilt of the accused that is to say, they should not be explained 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 that one to be proved and.
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
75. The case of the prosecution is largely based upon the last seen theory as the prosecution asserted that PW 3 Puja had seen that two accused has gone to the room of her father in law and when she gone in her father-in-law's room she find her father-in-law dead. So, the last seen theory has to discussed in detail.
LAST SEEN THEORY F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 37 of 53
76.Before further adverting to the facts of present case, I would like to mention certain settled principle of law which has to be considered while relying upon the last seen evidence. Last seen theory is a circumstantial evidence which means that the accused was last seen with the deceased ( when he was alive) and thereafter the deceased has been found dead. It is infact a presumption of fact which presumes that because deceased was last seen in the company of accused, it is accused who is required to explain how he died.
77. Last seen evidence by its very nature is a weak kind of circumstantial evidence and is very well affected by a number of factors viz the gap between last seen and time of death, the conduct of the accused after last seen and till arrest and other surrounding factors like motive and even recoveries. The Hon'ble superior Courts in a catena of judgments have reiterated the nature, admissibility and weight of last seen evidence keeping in view the very fact that even last seen theory is required to be proved by established facts before the same can be actually weighed for the purpose of its relevance for ascertaining guilt/innocence of the accused.
78. In case titled as Kamla Devi Vs. State of Delhi 2012 JCC 1457 it has been held that merely because presence of the accused with deceased is established, F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 38 of 53 the same by itself cannot be taken as strong incriminating circumstance to connect accused with commission of crime. The same is not sufficient in absence of complete chain of circumstances.
79. In case titled as Trilochan Verma Vs. State, 2013(4) JCC 2585 it has been held that the theory of last seen together is not a universal application and in the absence of any other positive corroborative evidence, it would be hazardous to come to a conclusion of guilt in such cases.
80. In case titled as Mohibur Rehman & Anr Vs State of Assam (2002) 6 SCC 715, it has been held that " the circumstances of last seen does not by itself necessarily lead to inference that it was the accused who committed the crime, the Hon'ble Apex Court has held that it may depend upon a number of other factors and there may be cases where on account of other clinching evidence, the close proximity of time and place between the last seen and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
81. In case titled as Arjun Malik Vs State of Bihar 1994 Supp (2) SCC it has been held that solicitory circumstance of the accused and victim last seen F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 39 of 53 together will not complete the chain of circumstances for the Court to record the finding that it is consistent only with the hypothesis of guilt of the accused. No conviction on that basis alone can be founded.
82. In nutshell last seen evidence is a weak kind of circumstantial evidence requiring corroboration from other established and clinching evidence and it would not be safe to found a conviction solely on the ground unless other reliable evidence form a complete chain of circumstantial evidence leading to only one conclusion forming hypothesis of guilt of the accused inconsistent with his innocence .
83. So in the light of settled proposition of law let us examined the case of prosecution.
84. As per the case of prosecution PW3 Pooja has seen both the accused persons came alongwith her father-in- law at 2/2.30 PM on the date of incident and all of them had gone to her father-in-law's room and when she went alongwith her daughter at 4.00 PM, she found her father-in-law died. Now the sole witness of the last seen is PW3 (Pooja). Now it has to be seen by the Court whether statement of PW 3 inspire confidence or not. Pooja has been examined as PW3. She has deposed in her examination-in-chief the same facts that at about 2/2.30 PM her father-in-law alongwith two boys ie Murtaza and Saleem had came and went to his room.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 40 of 53Though in document Ex PW3/A she has not disclosed that these two boys had also came on the same day of incident at about 1-1.15 PM. Though this is a minor contradiction but is a important fact in view of her entire statement.
85. Suppose for the sake of argument if it is admitted to be correct that accused Murtaza and Saleem had gone with the deceased at his room even then it has to be proved by the prosecution that nobody has come at deceased's room till PW3 has seen her father in law dead. So as to come to the conclusion that it was both the accused namely Murtaza and Saleem who were culprits and committed the crime. Then also prosecution has to prove that no one except accused Murtaza and Saleem has excess to the room of her father-in-law.
86. On perusal, the site plan placed on record is important and helpful to come to the conclusion whether there were no chances of accessibility to the first floor where the offence was committed. The site plan Ex PW20/A has been placed on record which reveals the location of ground floor as well as first floor of property bearing No.464 Bhagat Singh Park, near Mundka. On perusal of site plan it reveals that there is a main door to the ground floor which opens in open area and the open area leads to a front door of drawing room. The back door of the drawing room opens in the F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 41 of 53 staircase area ( The drawing room is having two doors one in front and one in back) and from the staircase area the stairs leads to the first floor. Though the prosecution is totally silent on the fact that the place where the offence has been committed is accessible to any other person. Even, none of the witness deposed a fact that the room where the offence has been committed is not accessible to any other person. In the light of site plan if we examined the testimony of PW 3 Pooja, it creates a lot of doubt in her statement. Because in her statement Ex PW3/A the witness(Pooja) does not deposed that after going to the room of her father-in-law, one of the boy had got down from the stairs for brining bread pakora. But in her statement being made before the Court she deposed that she had seen one of the boy coming down from the first floor to bring bread pakora. But the witness (PW3) does not claify the fact which one of both the boy had came down through stairs to bring bread pakora.
87. The witness has not clarified the fact how she came to know that, that boy, who was getting down, was going to bring bread pakora. She has not disclosed in her examination in chief being deposed in the Court at what time that boy came back alongwith Bread Pakora. ThePW3 has also not clarified the fact that at what time the accused had left her premises. Once PW3 does not clarify the facts regarding outgoing of a boy and also coming back then how it can be presumed beyond F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 42 of 53 reasonable doubt that anyone could have not entered into her house or went at the first floor where the offence was committed. Moreover, the prosecution has not brought on record any evidence which suggest to the Court that there was no other access point to the first floor where the offence was committed. A fact also creates doubt in my mind whether the accused, who are not having previously criminal record,could have take the risk to commit the offence when they were having knowledge that after committing the crime they could have leave the premises only through the stairs attached to drawing room and get out from the premises after crossing three doors ie two doors of drawing room and one main door. Certainly, I am of the view when the prepator of the crime is not habitual criminal or hardcore criminal in that circumstances, he will not take risk of his own or being capture while committed the offence at the site like where the offence has been committed in the present case. The last seen theory as has been presented by the prosecution in the present case is highly doubtful which cannot be accepted on the safer side.
IDENTITY OF THE ACCUSED PERSONS.
88. So far as the identity of the accused persons are concerned. It is submitted by the Ld Counsel for accused Murtza and Saleem that accused Murtaza was apprehended on 05.10.2011 from his village and in this regard an entry was also made in PS Kotwali Nagar F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 43 of 53 Muzaffarnager, U.P in the DD register. It is argued that a raiding party has brought accused Murtaza to Delhi but they have not disclosed this fact in investigation that they have arrested /apprehended accused Murtaza from Muzaffarnager, UP.
89. In this regard, the testimonies of DW-1 (SSI Samay Pal Atri) and PW-32 (SI Gulshan Nagpal) are important. DW 1, who is posted in PS Kotwali Nagar, Muzaffarnagar has deposed in his examination in chief that on 05.10.2011 a Ammad / Rewangi (arrival and departure) entry was made at Sl No.23 ( Ex DW1/A, being carbon copy has been proved as a primary evidence.) at P.S Muzaffarnager, U.P as "SI Delhi Police SI Gulshan Kumar, HC Subhash No.1033, Ct Yoginder,Ct Suresh, Murtaza Delhi were left for Delhi for investigation purposes." PW 32 SI Gulshan Nagpal has categorically admitted in his cross examination that brother of accused Murtaza namely Manawar was interrogated on 05.10.2011 and at that time accused Murtaza was present.
90. On evaluation of testimony of DW1 and PW32, a fact is proved that on 05.10.2011 accused Murtaza was brought to Delhi by a team headed by S.I Gulshan Nagpal but his arrest has been shown by the investigating agency on 06.10.2011 from Baprola Vihar, Delhi. The fact of arrest of accused Murtaza is manipulated fact as accused Murtaza was brought to F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 44 of 53 Delhi from his native place on 05.10.2011 but his arrest has been shown on 06.10.2011 alongwith accused Sanjay Kashyap. Now, question arises whether accused persons were being shown to the witness (Pooja-PW-3) before getting accused identified in TIP proceedings. In this regard, the testimony of PW 8 (Pradeep) is important. The witness PW8 has deposed in his cross examination that he met the accused persons in PS Mundka, Delhi and his sister-in-law and brother alongwith some neighborers had come to the PS after the arrest of accused persons. The witness had came at the PS as he was informed by the police official regarding of recovery of mobile phone of his deceased father. So, the identity of both the accused by PW 3(Pooja) in Tihar Jail becomes highly suspicious because she had seen the accused persons in PS before identifying them. So, the fact of arrest Murtaza is proved to be manipulated. The principle of law is that once a fact has been manipulated by the Investigating agency to bring home the culprit, the clouds are existed upon the entire story of prosecution.
91. Moreover, the behavior of PW3 (Pooja, a last seen witness) is also seems to be unnatural. When she had seen the dead body of her father-in-law, firstly. She had not called her husband immediately or her Devar or she has not shouted or cried but rather she had came down from the first floor. Thereafter, she had crossed three doors and reached opposite the Gali to inform her F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 45 of 53 so called Chachi. Ordinarily when a person see murder of his close relative, then he/she may naturally cries or shouted or may call to his/her near relatives. For the sake of argument, if PW-3 become stunned then in that circumstances, he/she would not come down from the room or cross three doors and go to Gali and informed third person. But here in the present case, PW3 has not reacted so, rather she has gone to call so called Chachi and Chacha after crossing the Gali. Moreover, the so called Chachi and Chacha has not been made a witness by the prosecution which could have brought on record the fact that they were firstly informed by PW 3 (Pooja) regarding commission of offence. The testimony of PW- 3 is not trustworthy to the extent that it can be relied upon.
92. One another fact on which the prosecution has relied upon is the testimony of PW 7 (Younus Khan), a person who used to run STD/PCO shop from his house bearing No.649, Village Mundka, Delhi, from where accused Murtaza and accused Saleem had made a call to the deceased on his mobile No.9350955135. The mobile bearing No.9350955135 being got issued by the name of deceased as has been proved vide ExPW14/A i.e. the Airtel Prepaid Enrollment Form. But a doubt is there in the prosecution story whether this number was exclusively used by the deceased from 31.07.2011 till 24.09.2011. Because the prosecution has placed on record the CDR of this phone (9350955135) of single F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 46 of 53 day, in which it has been shown that this phone has been used by the deceased on 24.09.2011 but the CDR of this phone number has been placed on record from 01.05.2011 to 31.07.2011 and withheld the CDR from 01.08.2011 to to 23.09.2011 to prove a fact that this number was used by the deceased only and not by any other person.
93. We take example here, suppose a person got issued a sim card in his name and gives it to any other persons including his friends or family member then it cannot be presumed that mobile sim card is used by that person consistently. Particularly, where it has come on record that the deceased was having 6-7 mobile instruments being taken from the persons who travels without ticket. The prosecution could have bring on record the mobile phone in which that the number (9350955135) was used on 24.09.2011. The prosecution withheld this vital piece of evidence. Moreover, PW7 cannot say with certainty that call was made particularly by the accused at the specific time at which the call was made from his booth on mobile No.9350955135. The PW 7 is totally silent that a call being made on No.9350955135 was made by the accused persons. So this witness is also not much helpful to the prosecution case, rather, a doubt creates in his testimony.
Motive to Commit Offence.
F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 47 of 5394. The prosecution has shown the motive to commit the offence by the accused person by hatching conspiracy among themselves, as that accused Sanjay Kashyap had borrowed a sum of Rs.20,000/- from the deceased which was supposed to be returned within three months alongwith interest @ 3% p.m. but Sanjay Kashyap was unable to return the borrowed sum of Rs.20,000/- and he has shifted to Khanna, Punjab, where he met accused Murtaza and Saleem. Since accused Murtaza was needed money for the treatment of his brother and accused Saleem needed money for the marriage of his brother. In this regard prosecution has relied upon document mark A which was subsequently exhibited as PW9/DA i.e. stamp paper on which accused Sanjay Kashyap has given undertaking that he has borrowed a sum of Rs.20,000/- from the deceased. Ld. Counsel for accused has argued that the said document was got prepared by the police from accused Sanjay Kashyap forcibly after his arrest.
95. I have perused said document Ex PW9/DA ( Mark A). The execution of this document in itself is highly doubtful, though the report Ex PW33/A (handwriting expert's report) has been received that the Ex.PW33/A (Mark A) is written by accused Sanjay Kashyap. The document is highly suspicious because the signatures of Mangal Sain (deceased) on this document is different from the signatures put on the document Ex PW14/A which can be revealed from the naked eye because the F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 48 of 53 deceased used to write word 'Sain' completely in his signature but on document Ex PW9/DA, the word 'S' has been readable and otherwards of signature (Sain) is not decipherable.
96. Moreover, from the naked eye it can be revealed that the name of witnesses, Chhotey Lal, Satish and Kishan Lal have been written by a person who has written the document ExPW9/DA. It is admitted case of the prosecution that the document Ex.PW9/DA is written by accused Sanjay Kashyap. On perusal, the formation of words, if seen by the naked eye, it clearly shows that the word Chhotey Lal, Satish and Kishan Lal has been written by Sanjay Kashyap himself. But neither Chhotey Lal or Satish or Kishan Lal has been examined by the prosecution while their names reveals on this document Ex PW9/DA. There is one another witness has also been shown as a witness to the execution of document (Ex.PW9/DA) namely, Charanjeet r/o D-418 Madipur, J.J. Colony, Delhi. Moreover, the stamp paper on which the said document has been prepared has been got issued by Kishan Lal, probably the person whose name appears on the front page of document Ex PW9/DA as witness. The stamp vendor has not been examined to prove the issuance of the stamp paper. The prosecution has unable to brought on record any circumstance under what circumstances Kishan Lal has purchased this stamp paper. Moreover the document has been produced by son of the deceased after the arrest of F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 49 of 53 accused of Sanjay Kashyap which also creates doubts and give force to the submission of Ld Counsel for accused Sanjay Kashyap that the document has been got executed forcibly by the police. So, the document Ex.PW9/DA (Mark-A) is doubtful.
Hatching Conspiracy
97. The prosecution has unable to brought on record any document which shows that accused Sanjay Kashyap, Murtaza and Saleem had ever met at Khanna, Punjab. Though, the prosecution has stated that they were working at Khanna Punjab as carpenter/furniture maker but their employer from Khanna, Punjab has not been examined to prove effect whether they had worked there at Khanna Punjab or they were working there.
98. The mobile phone sim card bearing No.8968900725 was also allegedly used in the mobile phone IMEI No. 353989032115220 which is issued in the name of one Kanwaljeet, as revealed from the document Ex PW14/E. But said Kanwaljeet deposed that the same was not got issued by him. However, the said mobile phone was issued in Punjab circle and UP West circle. The CDR, Mark-Y also reveals that the said mobile number was also used in instrument IMEI No.356232003572390. But prosecution has not bring on record with whom the mobile phone having IMEI F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 50 of 53 number belongs. So that prosecution has failed to prove on record any evidence which can prove effect that the accused persons have met with each other because there is no evidence in this regard.
Theft of Jewellery and recovery of mobile phone.
99. As per prosecution, the accused persons has stolen jewellery and some mobile phones of the deceased but there is no description, specification and quantity of jewellery which was stolen by the accused persons. So, there can be a doubt regarding stolen of any money or mobile phone or jewellery of the deceased. Even otherwise, as per case of prosecution the accused persons have sold the jewellery articles to a wandering person in Rs.80,000/- but the prosecution has not clarified a fact whether they have tried to locate the wandering person. So, the theory of stolen jewellery and mobile of deceased is not seems to be correct.
Recovery of Mobile from Accused from Mohd. Murtaza
100. The mobile phone which was recovered from accused Murtaza was in deteriorated condition as it was not having the back cover. The accused Mohd. Murtaza has explained that the mobile phone was found by him in the city of Muzaffarnagar. He is a rickshaw puller. So, probability cannot be ruled out that the mobile phone could have been found by accused Mohd. Murtaza. The F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 51 of 53 defence by accused persons should have been proved on the principle of preponderance of probability and not like the burden being casted upon the prosecution to prove a fact as beyond reasonable doubt. The accused Mohd. Murtaza had explained the circumstance in which he had came into possession of mobile phone shown being recovered from him.
101. So, in the totality of facts as has been brought by prosecution, the prosecution is unable to prove the charge under Section 404 IPC against the accused Mohd. Murtaza.
CONCLUSION..
102. Accordingly the first essential link connecting the accused with the alleged offence has been being broken. Prosecution has miserably failed to prove its case much less to prove the same beyond the pale of reasonable doubt. The crucially and materials evidence on the record do not bridge the gap between "may be true" and "must be true" so essential for a Court to cross, while finding the guilty of an accused. As such nothing incriminating against the accused has come on record and been proved by the prosecution on record. The prosecution has utterly failed to prove its case against any of the accused so as to complete the chain much less to prove the same beyond the pale of reasonable doubt. Reliance placed on Madari @ Dhiraj F S.C No.56475/2016 State Vs Sanjay Kashyap & Ors Page 52 of 53 & Ors. Vs State of Chhatisgarh, 2004(1) C.C. Cases 487, Resultantly, the accused Sanjay Kashyap, Mohd Murtaza and Mohd Salim are entitled for benefit of doubt and are accordingly acquitted of the charges under Section 302/404/120-B/34 IPC in the instant case.
103. In view of the statutory requirement of section 437- A Cr.P.C. the accused are directed to furnish a bail bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the court, for a period of 6 months, to appear before the appellate court, if so required.
104. File be consigned to record room after due completion. Digitally signed by JAGDISH KUMAR JAGDISH Date:
KUMAR 2018.09.29
ANNOUNCED IN THE OPEN 17:11:23
+0530
COURT ON THIS 28.09.2018
(JAGDISH KUMAR )
ADDI. SESSIONS JUDGE-02
(WEST):DELHI
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