Delhi District Court
State vs . : 1). Virender @ Bijender on 21 March, 2017
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT,
ROHINI COURTS: DELHI
Sessions Case No:57671/16
FIR No. : 327/08
U/s : 302/34 IPC
P.S. : Bawana
State Vs. : 1). Virender @ Bijender
S/o Sh. Raghubir Singh
Mathur
R/o Village Kisol, PS:
Sungarhi Distt. Kanshi Ram
Nagar, Etta UP,
Also at:A-14 Village Bajit Pur,
House of Om Kumar, PS:
Bawana, Delhi.
2). Madhu Gupta
D/o Sh.Rakesh Gupta
R/o H.No.A-4, Vikas Nagar, 40
futa road, Som Bazar near
Vickkey Juice Shop, Opposite
Mangal STD Maharannin
Enclave, Uttam Nagar, Delhi
Also at: A-14, Village Bajit Pur
House of Om Kumar, PS:
Bawana, Delhi.
Offence complained of : 302/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 27.02.2009
Date of Judgment : 18.03.2017
JUDGMENT
State Vs. Virender @ Bijender etc. SC No.57671/17 :: 1 ::
1. On 12.09.2008 at about 11 p.m an information was received at P.S. Bawana that at A-14 Bajitpur, main stand Kirayedaar ke makan se do din se lal va kala pani nikal raha hai". On this information DD no.25-A was recorded at P.S Bawana and was assigned to SI Jai Kishan. SI Jai Kishan along with Ct. Rajinder Singh reached at the spot. He checked and found that in the room on the right hand corner an iron box was lying. On that iron box in English MANIPUR VOLUNTARY HEALTH ASSN was found written and dead body of male aged 35 years smeared in blood was found in that box. Om Kumar, the landlord identified the dead body as of his tenant Bijender @ Virender. Dead body was in decomposed condition. Statement of the landlord was recorded who also produced one lock in broken condition. He told that the said room was let out by him to Bijender Gupta son of Raghubir Singh R/o Village Kishol, PS Sungarhi, Distt Etta, UP about 2 and half month earlier. 2 children aged 9 & 10 yrs was also residing with him. On 10,.09,2008, when he checked the house son of Birender Gupta met him and told that his mother Madhu who had gone to village had also State Vs. Virender @ Bijender etc. SC No.57671/17 :: 2 ::
come. On 12.09.2008 at about 10.30 or 10.45 p.m his another tenant Dhirender came to his house and told that the room in which Bijender Gupta was residing as tenant is lying locked and from that room blood is coming out and there is also foul smell. He reached there. Many persons collected there. He made a call at 100 number. PCR also reached there, broken the lock and found that the blood was dripping from the iron box.
when they opened the iron box they found the dead body of Bijender Gupta lying there. The wife and two children of Bijender Gupta were not there. The broken lock was sealed with the seal of JKR in cloth pullanda and seized. Crime team was also called. Investigation was carried out. During investigation on 14.09.2008 statement of Bimla was recorded and she told that on 11.09.2008 at about 4 a.m while she was going to her plot, she noticed Bijender Gupta going along with his two children and wife Madhu and brother Sanjay on a cylce keeping the bundle (gathari) of his articles. She thought that they might be going to their village. She also told all these facts to Om Kumar and it appeared that Bijender had committed murder of some other State Vs. Virender @ Bijender etc. SC No.57671/17 :: 3 ::
person. After this statement the other persons were called to identify the dead body and they all said that it is not the dead body of Bijender. During investigation, it also came on record that on that night Satender @ Nanhey was with Bijender @ Virender at his home and they together took the dinner. The dead body was identified as that of Satender @ Nanhey. The post- mortem was got conducted and the doctor opined the cause of death as Asphyxia as a result of pressure over neck. The Post-Mortem findings are consistent with manual pressure over neck (Throttling). Statement of Sumit and Kajal were also recorded. Accused Bijender and Madhu were arrested. After completion of investigation, the charge-sheet was filed.
2. Ld MM after complying the provisions of section 207 Cr.P.C committed the case to the Sessions as the offence punishable u/s 302 IPC is exclusively trial by the Sessions Court.
3. Both accused were charged for the offences punishable u/s 302/34 IPC and section 201/34 IPC to which they pleaded not guilty and claimed trial.
Thereafter the case was fixed for prosecution evidence. State Vs. Virender @ Bijender etc. SC No.57671/17 :: 4 ::
4. Smt. Bimla was examined as PW-1. She deposed that her plot in which she keep her buffaloes is situated in front of the plot of Om Kumar. On 11,.09.08 at about 4 a.m when she was going towards her aforesaid plot, she saw the accused Virender tenant in the plot of Om Kumar ( who used to sell clothes on the bi-cycle) going on his bi-cycle having gathari of his articles along with his wife Madhu present in the court, two children and one more person. She thought that she might be going to his village. When she came to know that Bijender @ Virender had been murdered, she narrated the above facts to Om Kumar and also told the police. A leading question was put to her by the permission of court by the Additional PP that the other person was Sanjay , brother of accused Virender but she stated that she does not know if that person was Sanjay or someone else. She was cross-examined by Ld Additional PP but she does not support the prosecution case on this aspect and she was confronted with her statement Ex. PW1/A. She was not cross examined by the defence at that time but later, on application u/s 311 Cr.P.C, she was recalled.
5. During cross-examination she stated that the State Vs. Virender @ Bijender etc. SC No.57671/17 :: 5 ::
distance between her house and the plot (Gher) where she keep her cattles is about 2 killas. She does not know the tenants living in the plot of Om Kumar. On 11.09.2008 she had not seen any tenant of Om Kumar going at 4 a.m. She had not seen both accused at that time. Police made inquiries from her but did not record her statement. She was re-examined by the Ld APP with the permission of the court but she did not support the prosecution case and stated that she did not tell the police that she had seen both the accused going at 4.00 a.m, along with the children and Sanjay taking their belongings on bi-cycle.
6. Dharampal was examined as PW-2. Accused Virender along with his wife Madhu and two children was residing in room no.1 in the gher of Om Kumar for last two and half months. Earlier he was residing some where else in the same village. 7-8 days prior to the day when his statement was recorded, brother of accused Virender was also started residing with him in the same room. On 10.09.08 he saw accused Virender, his wife Madhu, his brother, his two children son Sumit and daughter, whose name he does not remember and one State Vs. Virender @ Bijender etc. SC No.57671/17 :: 6 ::
more person sitting in the said room and taking meal. In his presence brother of accused Virender went on roof for sleeping. The other person remained in the said room (room of Virender) when he left for his room.
7. In the morning of 13.09.08 he came to know that Virender had been murdered. On 14.09.08 he along with other persons went to BJRM hospital mortuary. After seeing the dead body he told that the dead body is not of Virender but of person whom he had seen sitting with both the accused in the room in the night of 10.09.08 when he left their room. With the permission of court Ld.APP put leading question that the name of brother of accused was Sanjay and the person whose dead body was identified by him was introduced by accused Virender as his friend Nanhe but he denied the same.
But he confirmed that the dead body was of the person whom he had seen sitting along with both the accused in their room at about 10 PM on 10.09.08. He was cross examined by Ld.APP and was confronted with his statement Ex.PW-2/A where he has told the name of brother of accused as Sunny and that accused introduced that person as his friend Nanhe. He said that State Vs. Virender @ Bijender etc. SC No.57671/17 :: 7 ::
it may be possible that accused called his friend as Nanhe but due to lapse of time he has forgotten his name.
8. During cross examination by Ld. Defence counsel, he deposed that he does not know the family of Virender but denied the suggestion that he was not knowing the brother of Virender. He admitted that Virender used to live with his son but he also stated that his wife also used to visit him occasionally. He denied the suggestion that he is deposing falsely.
9. Rakesh Gupta was examined as PW-3. He deposed that about 17-18 years ago he was married with Madhu the accused. He was having two sons and one daughter from that wedlock. He used to sell milk.
One Satender @ Nanhey was also in the same business and was also known to him. About 7-8 years back he started residing at Khoda kalan colony and started putting rehri of chholey. At Khoda colony Satender @ Nanhey met him. Shyam Babu brother of Satender @ Nanhey was having fruit rehri in Khoda itself. Satender @ Nanhey used to help his brother Shyam Babu in selling fruits. On the request of Satender State Vs. Virender @ Bijender etc. SC No.57671/17 :: 8 ::
@ Nanhey one day he brought him to his home as he was earlier known to him being in the business of milk. Thereafter Nanhey started visiting his house off and on. He was having suspicion on Satender @ Nanhey. He said uska chaal chalan Madhu ke saath theek nahi tha. When wife of Shyam Babu was on family way, Madhu had gone there to help wife of Shyam Babu. From there also he came to know about the relations between Satender @ Nanhey and Madhu. Thereafter, he restricted the visits of Satender @ Nanhey at his house and also asked Madhu to mend her ways but Madhu was unable to resist herself and started meeting Satender @ Nanhey in his absence. With the intervention of her sister and brother-in-law namely Pushpa and Bhagwan Dass a talaknama was written. Thereafter Madhu started living with Satender @ Nanhey and his daughter Kajal. The photocopy of that Talaknama is taken on record as Mark-PW3/A. About one and half a year ago he came to know that Madhu is now living with Virender in village near Bawana. In answer to the leading question he stated that the name of the village is Bajit pur.
State Vs. Virender @ Bijender etc. SC No.57671/17 :: 9 ::
10. During cross-examination for accused Bijender @ Virender he deposed that he was not carrying on the business of selling milk in partnership with Satender @ Nanhey and was carrying it independently. His daughter is younger to his son and there is age difference of about 1 or ½ years between the children. Satender @ Nanhey was on visiting terms to the house of son of his tau at his native place. He does not remember when specifically Satender @ Nanhey visited his house in his absence. He does not know accused Virender personally. He is not having any relation with Shyam Babu. He denied the suggestion that he is having animosity with accused Virender. He admitted that he does not know about this case. No question was put to the witness on behalf of accused Madhu.
11. Om Kumar was examined as PW-4. He is having his house at village Bajit pur where he has constructed twelve rooms. Earlier accused Vijender Gupta used to reside somewhere in the village. Thereafter he started living with his two children and wife Madhu Gupta in one room of his house No.A-14. The two children of Vijender Gupta were of age 9 and 10 years. The son was elder State Vs. Virender @ Bijender etc. SC No.57671/17 :: 10 ::
than the girl. On 10.09.2008 at about 9:30 or 10:00 pm he went to his house. Son of Vijender Gupta met him and told that his mother who had gone to the native place had returned. On 12.09.2008 his tenant Dhirender came to his house at about 10:30 pm and told that a foul smell was coming from the room of accused Vijender which is lying locked. Thereafter, this witness also went there and he saw that the blood was coming out of the room and there was a foul smell also. He made a call at 100 number. PCR came at the spot. Police from PS:
Bawana also arrived there. The lock was broken. After opening the room they saw that from an iron box blood was dripping. The iron box was opened. There was a body inside the box. It was assumed that it is the body of Bijender. Many other tenants were also present there. Police recorded his statement Ex.PW4/A. Thereafter police again locked the room and next day they again visited the room and seized the broken lock after sealing the same in a pullanda vide memo Ex.PW4/B. Police also took the blood sample, earth control and iron box after preparing the pullanda vide memo Ex.PW4/C. Iron box was seized vide memoEx.PW4/D. Police also State Vs. Virender @ Bijender etc. SC No.57671/17 :: 11 ::
seized the empty boxes of mobile phone of Nokia and Vodafone vide Ex.PW4/E.
12. On 14.09.2008 Bimla wife of Dalvir told him that she had seen Vijender in the morning hours at 4 am going from his tenanted room on 11.09.2008 along with his two children and a parcel kept on the cycle. This witness passed on this information to SHO PS: Bawana who himself made inquiries from Bimla. Thereafter, they again went to BJRM mortuary along with some other tenants. Brother of Bijender was also called and on seeing the dead body carefully it was affirmed that it was not of Bijender. Earlier it was identified as dead body of Bijender by mistake.
13. On 26.10.2008 he was passing through Police station for his personal work. SI Ram Avtar met him and requested him to accompany to ISBT bus stop. In the evening at about 6:30 or 7 pm he went to ISBT Kashmiri gate and met the police officials outside the bus stop. Police took him to Mayur Vihar Phase-III near bus stop at the police booth in their vehicle. Two more police officials met them there. He was told that they have the secret information that Bijender will pass from this side State Vs. Virender @ Bijender etc. SC No.57671/17 :: 12 ::
and asked him to identify him. At about 8:00 pm this witness saw Bijender and his wife Madhu near bus stop at Madhu Vihar and on his identification both were apprehended. After interrogation both were arrested vide memo Ex.PW4/E and Ex.PW4/F. He also signed the personal search memo of Bijender which is Ex.PW4/G. In the personal search of accused Bijender cash and sim were found. The same were put in a pullanda and seized. The witness has identified the iron box as Ex.P1. The cotton wool swab as Ex.P2, the blood stained earth as Ex.P-3, earth control as Ex.P-4. He has also identified broken lock as Ex.P-5. The mobile phone ExP-6 and two sim cards as Ex.PW-7 and P-8. Mobile phone make Tata Indicom as Ex.P-9. He identified both the accused persons.
14. During cross-examination he stated that police did not record statement of any of his tenant in his presence.
15. He did not notice any misconduct/ cruel behaviour of accused. The children of accused also never complaint him about the conduct and behaviour of accused. The trunk was not having any lock. The lock State Vs. Virender @ Bijender etc. SC No.57671/17 :: 13 ::
was on the door. He denied the suggestion that he is deposing falsely.
16. Master Sumit son of accused Bijender @ Virender was examined as PW-5. But he did not support the prosecution case and he even stated that he does not know Madhu. He denied the suggestion that Madhu is his step mother. However, he admitted that Kajal is his sister. So far as his statement u/s 164 CrPC is concerned he stated that he was asked by the police to depose like that. He was kept in the police station for five days prior to recording of his statement u/s 164 Cr.PC and he was also beaten and threatened.
17. Urmila was examined as PW-6. She stated that she was running a tea shop near Fuffand Chauraha, Kali Mandir, Distt. Oraiya, U.P. Accused Madhu is her niece. In the month of October 2008 Madhu came to her house along with her daughter Kajal and left Kajal at her home. Since then Kajal is residing with them. After the arrest of accused Madhu police came to them and made inquiries from Kajal but she does not know if police recorded her statement of not.
18. During cross-examination she denied the State Vs. Virender @ Bijender etc. SC No.57671/17 :: 14 ::
suggestion that Kajal was never left by accused Madhu at her home.
19. Kajal was examined as PW-7. She stated that Madhu is her mother. Rakesh Gupta is her father. In year 2009 her father was residing in Uttam Nagar but she does not know the address. She does not know Virender or Satender @ Nanhey. She was not present at the time of incident. She was residing with her Nani Urmila for the last 2 ½ years when her mother left her there. She was cross-examined by Ld. Addl. PP for the State wherein she admitted that her statement was recorded by the police which is Ex.PW7/A. She deposed that she had never made any such statement to the police. She did not support the prosecution case.
20. Lateron on application u/s 311 Cr.PC the witness was re-called wherein she deposed that she along with her mother Madhu the accused and deceased Nanhey had lived together for about 10 years prior to the incident. She was also living with deceased Nanhey in the absence of her mother Madhu. When she was a minor a quarrel took place between her mother and deceased Nanhey. Nanhey tried to misbehave with her State Vs. Virender @ Bijender etc. SC No.57671/17 :: 15 ::
due to which her mother started quarreling with Nanhey. The witness stated that "jab Nanhey ne mere saath galat harkat karne ke koshish ki tau meri maa ka uske saath Jhagra hone laga". After some time they left the house of Nanhey and she along with her mother started living separately. Even thereafter Nanhey had not changed his behavior towards this witness. She along with her mother started living with accused (Bijender @ Virender). Nanhey started visiting there also i.e. Wajitpur where the incident took place. There was one tenanted room where she along with her mother Madhu and accused Virender was residing. On the day of incident she along with her mother, Virender, Sumit and one another person whose name she does not remember were present in that room. On the night when she along with her mother, Virender and Nanhey were sleeping in the room Nanhey ne uske saath galat harkat ki aur chhed chhad karne laga." Her mother also woke up. Her mother and Nanhey started quarreling with each other. Nanhey caught hold her mother from neck and pushed her. The head of her mother struck against the wall. Accused Virender also woke up thereafter Virender and State Vs. Virender @ Bijender etc. SC No.57671/17 :: 16 ::
Nanhey started grappling with each other which continued for a considerable time thereafter Nanhey fell down on the ground and became unconscious. Thereafter they all left that room. Her parents dropped her at the house of aunt. She was frightened being young while deposing in the year 2011 i.e. why she did not tell all these facts.
21. Ms. Ranjeet was examined as PW-8. In the year 2008 she was residing in room No.4 Wajit pur and in the same house room No.1 accused Virender was residing with his wife and children. She identified Madhu as wife of Virender and also Virender. On 09.09.2008 when she return from her work she saw accused Virender in his room. She does not know who were the other persons present with him in the room. She noticed Virender at about 8:00 or 8:30 pm. In the morning when she was going to her work place, she saw the room of accused Virender locked. Probably on11/12.09.2008 she noticed gathering in front of room of Virender. Police was present there. Lock of room of Virender was broken as blood was coming out of the room. Police took out a dead body which was removed to BJRM hospital. She State Vs. Virender @ Bijender etc. SC No.57671/17 :: 17 ::
was cross-examined by Addl. PP where she admitted that younger brother of accused Virender was also residing with him for the last 7-8 days before the incident. She admitted that when they noticed the blood coming out of the room owner of house Sh. Om Kumar was called there and she also told the police that dead body does not look like Virender but of his friend Nanhey.
22. During cross-examination on behalf of accused persons she deposed that lock of room was broken by police in her presence. She admitted that she had not seen accused Virender, his wife Madhu or brother Sanjay or any of his friend or children on 10.09.2008. The behavior of accused Virender was very decent. He never indulged in any quarrel with any body. She is not aware if accused Madhu was his wife.
23. Jiten Ram was examined as PW-9. He was residing in room no.2 of the same house where in room No.1 accused Virender was residing with his wife and children. He stated that he cannot identify wife of Virender and she is not present. He deposed that on 08.09.2008 he saw Virender, his wife and two children in State Vs. Virender @ Bijender etc. SC No.57671/17 :: 18 ::
the room and not any other person. On 12.09.2008 when he returned from his work place he saw blood coming out of room of Virender. Room was found locked from outside. He called the house owner Om Kumar. Om Kumar called the police. The police broke the lock of the room. A dead body was found lying inside the iron box in that room and blood was coming out of that. The dead body was taken out and they identified the body as of Virender from the clothes. They also went to the hospital on the next day where they had again seen the dead body in the day time and found that the dead body was not of Virender.
24. During cross-examination by Addl. PP for the State he admitted that when he returned from his work place at 9 pm he had seen Virender, his wife Madhu his two children and one another person whom Virender told as his friend and brother Sanju in the room. He also admitted that on that day son of Virender namely Sumit came to their room for sleeping in the night. Sanju had gone to the roof for sleeping but he had not told to the police that Sanju had gone to the roof for sleeping. He also told the police that on 11.09.2008 when he got up State Vs. Virender @ Bijender etc. SC No.57671/17 :: 19 ::
he did not found Sumit in the room and also found room of Virender locked from outside. He also admitted that the date when he saw them was 10.09.08 and not 08.09.2008. He does not know whose dead body it was.
He identified the dead body as of Virender because of clothes which were found on the dead body. He admitted that thereafter Virender, his wife Madhu and children never met him. He identified both the accused persons i.e. Virender as well as Madhu.
25. During cross-examination he deposed that he had been living in Wajit Pur for the last 15 days. He came to know that there is no fan in the room of Dhirender and therefore, he used to sleep in the room of Laxman where there was a fan installed. He does not know what was the relation between Dhirender and Virender. Sumit son of Virender had earlier never come to sleep in their room. He did not inquire as to where Sumit is when he did not found him in the morning on 11.09.2008. He denied the suggestion that he is deposing falsely or that he found the room locked or that accused persons were not there.
26. Dr. Kulbhushan Goel was examined as PW-10. State Vs. Virender @ Bijender etc. SC No.57671/17 :: 20 ::
He conducted the post mortem on the dead body and proved the report as Ex.PW10/A. He deposed that the cause of death was asphyxia as a result of pressure over neck. Post mortem finding were consistent with manual pressure over neck (throatling). Pinkish area over neck was ante mortem in nature and consistent with manual grip by other party. Manual pressure over neck was sufficient to cause death in ordinary course of nature. Time since death was about 5 ½ days. The testimony of this witness has gone unchallenged and uncontroverted.
27. Ct. Vijay Singh was examined as PW-11. He deposed that on the intervening night of 12/13 September 2008 he was working as duty officer. On the basis of the rukka brought by Ct. Rajender sent by SI Jai Kishan he recorded the FIR and proved the copy of the same as Ex.PW11/A.
28. No witness was numbered as PW-12.
29. Dhirender Kumar was examined as PW-13. He was residing in room No.11 of the house of Om Kumar. On 10.09.2008 he slept in room of Laxman. Virender was also residing in room No.1 along with his family. He State Vs. Virender @ Bijender etc. SC No.57671/17 :: 21 ::
stated that he had not seen any other person in the room of Virender. Only Virender and his family members were present in the room. Next day in the morning he saw room of Virender was locked. He also deposed about the recovery of dead body from the iron box lying in the room of Virender. He was cross-examined by Addl. PP wherein he admitted that he had seen one more boy in the room of Virender along with his wife and two children whose name was told by Virender. He denied the suggestion that he had seen Satender @ Nanhey also in the room of Virender.
30. During cross-examination by defence counsel he stated that he had never seen Virender, Madhu and their children involved in any quarrel.
31. Ct. Balle Ram was examined as PW-14. He deposed that on 30.12.2008 he took 5 sealed parcels, 4 sealed with the seal of RA and one sealed with the seal of KG BJRM Hospital along with sample seal and deposited the same at FSL Rohini vide RC 201/21/08. He collected the acknowledgement from FSL and on return to the police station handed over to the MHC(M). Till the case property remained in his possession the State Vs. Virender @ Bijender etc. SC No.57671/17 :: 22 ::
same was not tampered with. Nothing material came on record during his cross-examination to dis-credit the witness.
32. Sh. Pankaj Kumar was examined as PW-15. He was residing in room No.3, of house belonging to Pawan Kumar at village Bajit pur as tenant. In room No.1 of the same house Virender was residing with his wife and children. On 10.09.2008 at about 9:30 pm he saw Virender present in his room along with his wife, two children, brother Sanju and Nanhey friend. Thereafter, he was busy in his work. At about 10:00/ 10:30 pm Sanju brother of Virender went to roof for sleeping. Sumit son of Virender went to another room for sleeping. This witness also went to sleep. Next day in the morning at about 7:30 or 8:00 am he found the room of Virender lying locked. On 12.09.2008 when he returned from his work at about 9:30 pm. He found a liquid like blood coming out of the room of Virender. They all called the owner of house. The owner called the police. In the presence of police the lock was broke open. Foul smell was coming from the room of Virender. It was found that blood was dripping from an iron box lying in the room. State Vs. Virender @ Bijender etc. SC No.57671/17 :: 23 ::
The box was opened and a body was found in it. The body appeared to be of Virender. The dead body was removed to the mortuary. On 14.09.2008 he along with other tenants went to the mortuary of BJRM hospital Jahangir Puri for identification of dead body. On careful examination he found that dead body was not of Virender but was of Nanhey. He also identified accused Virender and Madhu.
33. During cross-examination he stated that he did not visit the room of Virender prior to the incident. He denied the suggestion that he named Sanju and Nanhey at the instance of police. He had not seen Nanhey prior to 10.09.2008. He had never seen accused Virender and his wife quarreling with any tenant. Om Kumar landlord reached there at about 10:30 pm. Police reached after 10 minutes of arrival of Om Kumar. In answer to specific question about identity of deceased he stated that first time they saw the dead body at night time and therefore could not properly identify. But when he saw it in the mortuary he found it to be dead body of Nanhey. He denied the suggestion that he had not seen Sanju and Nanhey along with accused Virender and his State Vs. Virender @ Bijender etc. SC No.57671/17 :: 24 ::
family.
34. HC Suresh Kumar was examined as PW-16. He was working as MHC(M) and proved the entires in register No.19 and 21 as Ex.PW16/A to Ex.PW16/H.
35. SI Manohar Lal was examined as PW-17. He proved the scaled site plan as Ex.PW17/A having his signature at point A. Nothing material came on record during his cross-examination to discredit the witness.
36. Inspector Jogender was examined as PW-18. He was posted as In-charge Crime Team, Outer District. On receipt of information on 13.09.2008, he alongwith his team reached at A-14, Bajitpur, Delhi. SI Jai Kishan was also there. Ct. Ravinder took the photographs. He inspected the scene of crime and prepared the report Ex.PW18/A having his signature at point A. During cross-examination, he deposed that they reached at the spot in the intervening night of 12/13.09.08 at about 12:45 AM.
37. Retd. Ct. Rajender was examined as PW-19. On 12.09.08 after receipt of DD No. 25A, he alongwith SI Jai Kishan reached H.No. A-14, Village Bajitpur, Delhi. A large crowd was there. Complainant Om Kumar was State Vs. Virender @ Bijender etc. SC No.57671/17 :: 25 ::
also present there. They noticed blood coming out of the first room situated on the left side. There was a foul smell. One cot was also lying on the right side inside the room. A mattress was lying on the floor. One iron box was lying in the right side corner. On the box Manipur Volunteer Help Assn was found written. Inside the box, a dead body of male aged about 35 years was found. Om Kumar identified the dead body to be of Virender. The broken lock was put in a cloth parcel sealed with the seal of JKR and seized vide memo Ex. PW4/B. IO recorded the statement of Om Kumar. Crime Team took the photographs. Crime Team also inspected the scene of crime. IO prepared the rukka and handed over to this witness. He went to the PS, got the FIR registered and came back on the spot with the copy of FIR and original rukka. He handed over the copy of FIR and original rukka to the IO. Thereafter, he took the dead body to Mortuary of Sanjay Gandhi Memorial Hospital and got it preserved. The dead body remained there in his custody till postmortem was conducted. The dead body was identified to be of Satender Kumar @ Nanhe. He identified the lock as Ex. P-5.
State Vs. Virender @ Bijender etc. SC No.57671/17 :: 26 ::
38. During cross-examination, he stated that the lock of the room had already been opened before there reaching the spot. Crime Team reached at the spot at about 2:30 AM. He denied the suggestion that he did not join the investigation. He took the rukka at about 3:00-
3:30 AM and returned to the spot at about 4:50 AM.
39. Ct. Ashok Kumar was examined as PW-20. On 13.09.08, he delivered the copies of FIR to senior police officials and the area MM. The testimony of this witness has gone unchallenged and uncontroverted.
40. Sh. Shyam Babu Gupta was examined as PW-21. He deposed that he sells fruits on rehri and belongs to village Kisol, PS. Songari, District Kashi Ram Nagar, U.P. His brother Satender @ Nanhe was living with a lady namely Madhu without marriage at Village Khora since year 2006. Madhu and Satender lived as such for about 2 or 3 years. He identified accused Madhu as the lady who was residing with his brother. Madhu sometimes used to live with Virender and sometimes with Nanhe. In the first week of September 2008, a quarrel took place between Madhu and Satender on which accused Madhu left extending threat to Satender State Vs. Virender @ Bijender etc. SC No.57671/17 :: 27 ::
that she will get him cut into small pieces. Madhu left with her daughter Kajal to live with Vijender on Village Bajitpur. On 10.09.08, Madhu called Satender at Bajitpur. On that day at about 10:00 PM when he made a call to his brother Satender, his brother told him that he is at the house of Virender in the company of Madhu and children and would stay there during the night. Next day on 11.09.08, when he made a call to Satender, his phone was found Switched Off. He could not contact his brother on next 3 days. After 3-4 days, Delhi Police reached their Village with I-card of his brother. He accompanied Delhi Police to the Mortuary of BJRM Hospital and identified the dead body of his brother Satender @ Nanhe. Statement to this effect is Ex. PW21/A. After postmortem, he received the dead body vide document Ex. PW21/B. In answer to the leading question put by Ld. Additional PP for State, he stated that he is not able to recollect if the mobile number 9250296557 is of his brother.
41. During cross-examination, he deposed that he used to talk to his brother Satender @ Nanhe twice or thrice in a day. His brother was living in one room as State Vs. Virender @ Bijender etc. SC No.57671/17 :: 28 ::
tenant. He did not inform the police about the threat extended by the accused Madhu to his brother. He denied the suggestion that he did not visit the house of his brother in the first week of September 2008 or that he did not contact his brother on telephone in the night of 10.09.08 at about 10:30 PM. He denied the suggestion that marriage between his brother Satender and Madhu had already taken place or that he also witnessed that marriage. He denied the suggestion that he is deposing falsely against Madhu as he does not want that the bank balance and ornaments of his brother be given to accused Madhu.
42. W/HC Bala Rani was examined as PW-22. She deposed that on 26.10.08, she alongwith HC Balwan and HC Rajbir went to ISBT in a private vehicle where one Om Kumar met them. She fully corroborated the testimony of PW-4 regarding arrest of both the accused persons. She deposed that HC Rajbir apprehended the accused Virender and she apprehend the accused Madhu. She also conducted the personal search of Madhu vide memo Ex. PW22/A. Rs. 300/- were found in her personal search. She signed on the arrest memo State Vs. Virender @ Bijender etc. SC No.57671/17 :: 29 ::
Ex. PW4/F. Thereafter, they returned to PS. Bawana. In the PS, accused Madhu was given in the protection of Ct. Poonam. On 27.10.08 she again joined the investigation. Both the accused led police party to Village Bajitpur and pointed out the place of occurrence. She had identified both the accused persons.
43. During cross-examination, she stated that they reached at the place of apprehension of the accused persons at about 6 or 6:30 PM. She had not seen the accused persons or their photographs prior to their arrest.
44. Rakesh Kumar Gupta was examined as PW-23. He took one SIM Card having mobile no. 9250296557 of TATA Indicom using his Voter ID Card which was given to mamia sasur of Dinesh. He proved Customer Application Form as Ex. PW23/A and the copy of the Voter ID Card as Ex. PW23/B. In answer to the leading question put by the Ld. Additional PP for State, he stated that he can not say if Satender @ Nanhe was Mammia Sasur of Dinesh Kumar Gupta. He was cross-examined but still he did not support the prosecution case that this mobile number was given to Satender @ Nanhe. During State Vs. Virender @ Bijender etc. SC No.57671/17 :: 30 ::
cross-examination by defence, he admitted that he does not know the deceased and had also not seen the accused.
45. Anil Kumar was examined as PW-24. He identified the dead body of his brother Satneder Kumar vide document Ex. PW24/A and received the same after postmortem vide document Ex. PW24/B.
46. Sh. R.P. Saxena was examined as PW-25. He also deposed on the lines of PW-24.
47. Sh. Bhama Shah Gupta was examined as PW-26. He also deposed on the lines of PW-24 & 25.
48. Sh. Bansi Lal was examined as PW-27. He deposed that accused Virender present in the court is his nephew in relation. About 5-6 years back, his brother Sanjay alongwith his nephew came to his house at about 8:00 AM and left leaving one bicycle and one bundle (Gathari) at his belongings by saying that they are going to their native village. Later on police arrived at his home and he handed over the said bicycle and bundle to them which were seized vide memo Ex. PW27/A. During cross-examination by Ld. Additional PP for State, he stted that he can not say if Virender was State Vs. Virender @ Bijender etc. SC No.57671/17 :: 31 ::
living at Bajitpur. He had no knowledge about wife of accused Virender. He is not aware if accused was living with lady namely Madhu and daughter Kajal. He can not say if on 11.09.08, Sanjay alongwith Sumit left the bicycle and bundle at his house.
49. Ct. Ajay Pal was examined as PW-28. On 12.09.08, he was posted at CPCR. On that day, he received a call from mobile no. 9871815610 that H.No. A-14, Bajitpur Thakran, Bawana "Kirayedar Nahi Hai, Kamra Band Hai, Usme se blood aa raha hai". He filled the PCR Form. Copy of which is Ex. PW28/A. He deposed that original record has been weeded out vide order dated 02.08.2012. Copy of which is proved as Ex. PW28/B and Certificate as Ex. PW/C.
50. Daya Deen was examined as PW-29. He deposed that he married his daughter Poonam with Devender. Devender has 3 brothers namely Prem Pal, Virender and Sanjay. Virender has one son Sumit. He brought Sumit from Agra where he was living with his chacha Devender and Chachi Poonam as Rajbir, son of this witness was apprehended by the police at Delhi. He did not support the prosecution case. He was cross- State Vs. Virender @ Bijender etc. SC No.57671/17 :: 32 ::
examined by Ld. Additional PP for State but still he did not support the prosecution case.
51. Smt. Bimla Rana was examined as PW-30. She was the Principal of M.C. Primary School (Girls), Bajitpur. She deposed that baby Kajal, D/o. Sh. Virender Gupta was admitted in 3rd standard vide Admission No. 2354. Her name was struck off due to long absence on 22.09.08. She issued a certificate in this regard which is Ex. PW30/A. She also proved the copy of Admission Register as Ex. PW30/B. The original Admission Form of Kajal as Ex. PW30/C. An affidavit of the father with respect to the age as Ex. PW30/D. The testimony of this witness has gone unchallenged and uncontroverted.
52. Smt. Darshana Devi, Principal of M.C. Primary School (Boys), Bajitpur was examined as PW-31. She deposed that Sumit Gupta S/o Sh. Virender Gupta was admitted in their school vide Admission No. 1927. His name struck off on 10.09.08 due to long absence. She issued a certificate in this regard on 20.01.09 and proved the certificate as Ex. PW31/A. She proved the copy of original Admission Register as Ex. PW31/B. During cross-examination, she admitted that there is no State Vs. Virender @ Bijender etc. SC No.57671/17 :: 33 ::
photograph of child affixed in the register. The age of the child was filled on the oral information given by the father.
53. Prem Pal was examined as PW-32. He deposed that on 14.09.08 on the calling of police, he went to Mortuary, BJRM Hospital. The police asked him to identify the dead body and after seeing, he said that the said dead body is not of his brother Virender. He deposed that accsued present in the court is his real brother Virender. Accused Madhu is wife of Satender. Madhu was having a baby girl and his brother was having a son namely Sumit. Neelam was wife of Virender who expired in the year 2011. He can not say if Satender divorced Madhu. He had no knowledge if Madhu alongwith her daughter Kajal was residing with his brother Virender at Village Bajitpur. He was cross- examined by Ld. Additional PP for State but he did not support the case of prosecution.
54. Ct. Ravinder was examined as PW-33. He was member of mobile Crime Team. On the intervening night of 12/13.09.08, he alongwith SI Jogender, In-charge Crime Team and HC Ram Kumar, Fingerprint Expert State Vs. Virender @ Bijender etc. SC No.57671/17 :: 34 ::
reached A-14, Village Bajitpur. He took 9 photographs of the scene of crime from different angles. He proved the negatives as Ex. PW33/A-1 to A-9 and the photographs as Ex. PW33/B-1 to B-9.
55. ASI Babu Ram was examined as PW-34. He deposed that on 15.10.08 on the direction of IO Inspector Ram Avtar he alongwith Ct. Mati Menon went to Agra and Auraiya in U.P in search of accused persons. On 26.10.08 when they were present in Auraiya in the area of Kotwali at about 2:00 AM, a secret information was received that both the accused persons will visit the house of sister of Madhu at Khoda Colony, Delhi and after collecting the money from there, they will proceed further. Thereafter, they reached Khoda Colony and also gave information about the same to the IO. DD No. 22A was recorded in this regard at about 4:20 PM. Inspector Ram Avtar, HC Balwan Singh, HC Rajbir, W/HC Bala alongwith complainant Om Kumar reached police booth, Mayur Vihar, Phase III. He briefed the incident to the IO. He corroborated the testimony of PW-4 and PW-22 regarding arrest of both the accused persons, their personal search and their making of State Vs. Virender @ Bijender etc. SC No.57671/17 :: 35 ::
disclosure statements. The testimony of this witness has gone unchallenged and uncontroverted.
56. Retd. SI Jai Kishan was examined as PW-35. He deposed that on 12.09.2008 at about 10 pm after receiving DD No.35A ExPW35/A he along with Ct. Rajender Singh reached H.No.A-14 village Bajit pur. He fully corroborated the testimony of PW-19. He after recording statement of Pawan Kumar made his endorsement on the same and prepared the rukka Ex.PW25/B. He handed over original rukka to Ct. Rajender and sent him to PS: Bawana for registration of the case. He also called the crime team on the spot. The photographs of scene of crime were taken. The spot was also inspected by the crime team. Investigation was assigned to Inspector Ram Avtar after registration of the case. IO reached the spot along staff. Ct. Rajender Singh reached the spot and handed over original copy of FIR to Inspector Ram Avtar. He handed over sealed parcels to the IO. IO prepared the site plan of the place of occurrence at his instance. Thereafter, the dead body was sent to mortuary of BJRM hospital through Ct. Rajender. IO lifted the blood, blood stained earth and State Vs. Virender @ Bijender etc. SC No.57671/17 :: 36 ::
also the iron box from the spot. All these items were wrapped in cloth, sealed with the seal of RA and seized vide memo Ex.PW4/C. Three empty boxes of mobile phones were found these were also put in pullanda sealed with the seal of RA and seized vide memo Ex.PW4/D. The witness has identified the case property. The testimony of this witness has gone unchallenged and uncontroverted.
57. ASI Balwan Singh was examined as PW-36. He joined investigation of this case on 25.09.2008 with Inspector Ram Avtar, they reached the house of Bansi Lal who produced one cloth bundle consisting of one Goa tea bag and one Glory tea bag containing 58 garments in total and also one school bag having 8 books and six copies of 3rd class and school dress all these items were sealed and seized along with bicycle vide memo Ex.PW27/A.
58. On 29.10.2008 he again joined the investigation of this case with Inspector Ram Avtar. Accused Virender was interrogated who made supplementary disclosure statement Ex.PW36/A. On 31.10.2008 he again joined investigation with Inspector Ram Avtar. Accused State Vs. Virender @ Bijender etc. SC No.57671/17 :: 37 ::
Virender led them to Ladi Hadapsar, Pune, Maharashtra. Local police was also joined. Accused took them to the house of Sanjay Rao and pointed out one room situated on the rear portion. He opened the same. From under the Tin of the room he took out one mobile phone of black and grey colour which was put in a cloth parcel sealed with the seal of RA and seized vide memo Ex.W36/B. He identified the mobile phone as Ex.P-10. The bicycle is Ex.P-6 and cloth parcel having clothes,, the school bag, books and copies etc. collectively Ex.P-5.
59. During cross examination he denied the suggestion that accused did not make any disclosure statement on 29.10.2008 or that he was forced to sign some blank papers. Sanjay Rao is the owner of the house from where the mobile phone was got recovered. The room was found bolted from outside. He cannot say if any body was residing in that room or not. Some clothes were hanging in the room. He denied the suggestion that accused Virender did not point out any place or did not get recover the mobile phone as deposed by him.
State Vs. Virender @ Bijender etc. SC No.57671/17 :: 38 ::
60. ASI Rajbir Singh was examined as PW-37. He deposed that on 26.10.2008 on receipt of DD No.22A by Inspector Ram Avtar recorded by HC Babu Lal he reached Khora colony. He corroborated the testimony of PW-4, PW-22 and PW-34 regarding arrest of the accused persons and their apprehension. He deposed that one mobile phone of Tata Indicom without Sim, cash of Rs.200/- and 2 sim cards were recovered form the possession of accused Virender. The two sim cards were seized vide seizure memo Ex.PW37/A. After putting them in match box and sealed with the seal of RA. Accused Virender made a disclosure statement Ex.PW37/B. Accused Madhu made the disclosure statement Ex.PW37/C. Both the accused pointed out the place of occurrence vide pointing out memo Ex.PW37/D and Ex.PW37/E. He identified the mobile phone recovered in the personal search of P-9 and the two sim card as Ex.P-7 and P-8.
61. During cross-examination he stated that he is not aware of the source of information regarding presence of accused persons at Mayur Vihar, Phase-3, Khora colony. He was directed by Inspector Ram Avtar to State Vs. Virender @ Bijender etc. SC No.57671/17 :: 39 ::
accompany him at 4:30 pm. They reached there in Tata Sumo arranged by the IO. He does not know the name of the driver. In his presence no rent was given to the driver of Tata Sumo. Om Kumar was picked up from ISBT at 5:30 pm. Both the accused were apprehended at about 8:00 pm. They remained there till 11:15 or 11:30 pm. IO did not request RTV drivers to join investigation. The information regarding arrest of Virender and Madhu was given to their uncle (chacha) on way to the police station. The disclosure statement of accused was recorded at police station at 10:00 am on 27.10.2008.
62. Sh. Sanjay Sahab Rao was examined as PW-38. He is the owner of H.no.1711/2, Ladi Hadapsar, Pune, Maharashtra. There are 25 rooms in his house which he had given on rent. On14.09.2008 Virender along with his wife Madhu and small children contacted him to take room on rent. On seeing their condition and considering pity on them he lend one room to Virender at monthly rent of Rs.900/- and they remained in that room for about 10-15 days and thereafter on the pretext of death of mother of Virender they left for the village stating that State Vs. Virender @ Bijender etc. SC No.57671/17 :: 40 ::
they will come back but did not return. During his stay he offered one mobile for sale but none agreed to purchase the same. After some days in October 2008 police along with accused Virender came there. Virender opened the room and took out mobile phone from the roof of the room and same is Ex.PW36/B. Witness has correctly identified the accused and also the mobile phone. The witness has also brought his driving license and the ration card which are Ex.PW38/A and Ex.PW38/B. He identified the mobile phone as Ex.P-10.
63. During cross-examination he stated that he live at a distance of about 20-25 yards from the room which was rented out to the accused. Delhi police and local police came to his place at 10 pm. His statement was recorded by the police at his house. He was not getting his tenants verified before letting out the room. He had seen from outside the room the accused taking out phone from the ceiling.
64. HC Subhash Jagan Nath was examined as PW-39. He deposed that on 31.10.2008 Inspector Ram Avtar of Delhi Police along with accused Virender kumar visited the PS: Hadapsar, Pune, Maharashtra. This State Vs. Virender @ Bijender etc. SC No.57671/17 :: 41 ::
witness along with police Naik Vilas Dagadi joined investigation. He fully corroborated the testimony of PW-36 and PW-38 regarding the recovery of Mobile phone by accused Virender. He identified the accused as well as the mobile phone.
65. During cross-examination he deposed that DD entry was made about visit of Delhi Police. Delhi Police official came to the police station at about 8:30 pm. The room in which they had gone was about 10 ft. x 10 ft. He denied the suggestion that no recovery was effected.
66. HC Suresh Kumar was examined as PW-40. He proved the entries in register No.19 and 21 as Ex.PW40/A to Ex.PW40/E including the acknowledgement. He also placed on record the serological record Ex.PW40/F and Ex.PW40/G. The testimony of this witness has gone unchallenged and uncontrovered.
67. Ct. Rahul Bali was examined as PW-41. He deposed that on 16.09.2008 he joined investigation of this case with Inspector Ram Avtar. On that day public witnesses Anil and Shyam Babu identified dead body in the morturay of BJRM Hospital as of Satender Kumar @ State Vs. Virender @ Bijender etc. SC No.57671/17 :: 42 ::
Nanhey. Their statements to this effect were recorded. Thereafter post mortem was conducted. After the post mortem the dead body was handed over to the relatives vide documents Ex.PW21/B. After the postmortem the doctor handed over the exhibits in sealed pullanda to the police and clothes of deceased duly sealed vide memo Ex.PW4/A. The testimony of this witness has gone unchallenged and uncontrovered.
68. Sh. Rajesh Raja, Nodal officer, Tata tele services was examined as PW-42. He deposed that mobile phone No.9212931981 was subscribed in the name of Virender son of Sh. Raghubir R/o H.No.4/11 Harijan Basti, Bawana. Applicant provided his ID proof and copy of ration card which is Ex.PW42/A and the copy of customer application form is Ex.PW42/B.
69. Mobile phone no.9250296557 was issued in the name of Rakesh Kumar son of Sh.Braham. He proved customer application form Ex.PW23/A and proved the copy of the ID proof as Ex.PW23/B. He proved the certificate u/s 65B Evidence Act as Ex.PW42/B. The testimony of this witness has gone unchallenged and uncontroverted.
State Vs. Virender @ Bijender etc. SC No.57671/17 :: 43 ::
70. Sh. A.K. Srivastava, Deputy Director DNA unit was examined as PW-43. He deposed that on 22.01.2009 vide identification form No.1 blood sample of Smt. Prema Devi was collected at FSL Rohini. One forensic sample having seal of KG BJRM Hospital mortuary having two small teeth were also received at FSL. DNA was analysed and DNA finger print profiling was prepared. On the basis of DNA profiling it was concluded that source of blood sample-1 of Prema Devi is Biological mother of source of two teeth. The DNA finger printing report is Ex.PW42/B and identification form is Ex.PW43/B. The testimony of this witness has gone unchallenged and uncontrovereted.
71. Prema Devi was examined as PW44. She deposed that her blood sample was taken and idenfitied her thumb impression on Ex.PW43/B. The testimony of this witness has gone unchallenged and uncontrovereted.
72. Ms. Seema Nain, Senior scientific officer Biology was examined as PW-45. He proved detailed Biological report as Ex.PW40/F and serological report as Ex.PWPW40/G. State Vs. Virender @ Bijender etc. SC No.57671/17 :: 44 ::
73. Inspector Ram Avtar was examined as PW-46. He fully corroborated the testimony of PW-4, PW-22, PW- 27, PW-34, PW-36 and PW-37. He also proved the site plan prepared by him at the instance of SI Jai Kishan as Ex.PW46/C. The inquest papers as Ex.PW46/D, Ex.PW46/E, application for getting recorded statement of Sumit u/s 164 Cr.PC as Ex.PW46/E. The statement u/s 164 Cr.PC. As Ex.PW46/F. The application for supplying of copy of statement as Ex.PW46/G. Body inspection memos of both the accused as Ex.PW46/H and H1. He moved application u/s 46/J and 46/K for seeking details in Tata Tele Services. Application to school principal seeking record of Kajal and Sumit Ex.PW46/L and Ex.PW46/M. He identified the accused persons and the case property.
74. During cross-examination he stated that he came to know about the murder at 1 am. He reached the spot at about 3 am. He took over the investigation at 3 am. Crime team and SHO were already present at the spot. SI Jai Kishan must be the first person who entered the room. He had not examined. SHO in this case and his is also not cited as witness. He remained on the spot till 7 State Vs. Virender @ Bijender etc. SC No.57671/17 :: 45 ::
am. He denied the suggestion that he fabricated supplementary statement of Om Kumar. It was revealed from the statement of Bimla Devi that it was not Virender who had been murdered as she had seen accused Virender leaving the house along with Madhu and other family members in the morning on 11.09.2008. Accused Madhu was not having any mobile phone. He did not collect the call details and location chart. At the time of arrest he requested public persons to join investigation but none agreed. The accused persons reached the bus stand at about 8 pm and thereafter they were apprehended. Sanjay has not been made a witness and also accused in this case as it has come in evidence collected that at the time of incident Sanjay was sleeping on the terrace. He denied the suggestion that he has not fairly investigated the case or that accused has been falsely implicated.
75. Ms. Sunaina Sharma was examined as PW-47. She was working as Ld. MM at the relevant time and recorded statement of Master Sumit u/s 164 Cr.PC. She proved the proceedings u/s 164 Cr.PC and appended certificate as Ex.PW47/A. The application for recording State Vs. Virender @ Bijender etc. SC No.57671/17 :: 46 ::
statement is Ex.PW46/E. The copy of statement was provided to the Io on his application Ex.PW46/G.
76. Thereafter, prosecution evidence was closed. Statement of accused persons were recorded wherein they denied the entire evidence and stated that they have been falsely implicated. They wished to lead evidence in defence but closed the same without examining any witness. Thereafter, the case was fixed for arguments. At that stage an application was moved for recalling PW-7 Kajal u/s 311 Cr.PC, application was allowed and Ms. Kajal was cross-examined by defence counsel. Thereafter, again statement u/s 313 Cr.PC of both accused persons were recorded. They denied the entire evidence. They did not wish to lead evidence in defence and the case was fixed for final arguments.
77. Ld. Addl. PP submits that in this case, according to the evidence collected and as has come on record, accused Madhu was married with Rakesh Gupta PW-3. Out of that wedlock, one girl child and two male children were born. Madhu developed intimacy with Satender @ Nanhe. Due to these relations, the matrimonial dispute arose between PW-3 and Madhu. They finally decided State Vs. Virender @ Bijender etc. SC No.57671/17 :: 47 ::
to live separately. They dissolved their marriage by writing a document but no decree of dissolution of marriage/divorce was obtained from any Court of law. It has come in the testimony of PW-3 Rakesh Gupta, PW- 21 Shyam Babu Gupta brother of the deceased and also in the testimony of Ms. Kajal examined as PW-7 daughter of Madhu that Madhu thereafter started living with Satender @ Nanhe alongwith Kajal. It is also important to note that Madhu has not challenged the testimony of PW-3 at all. Madhu and Satender lived as husband and wife but their relations were strained as Satender @ Nanhe attempted to outrage the modesty of Kajal. A quarrel took place between Madhu and Satender @ Nanhe on this issue but Satender @ Nanhe did not mend his ways. Madhu separated from Satender @ Nanhe and started living with Virender, the present accused at Bajitpur in room no. 1 of H.No. A-14 owned by Sh. Om Kumar PW-4 as tenant. Ld. Additional PP submitted that Om Kumar PW-4 specifically deposed that Virender was living in room no. 1 of his house along with his wife Madhu, two children whose name were given by witnesses as Sumit and Kajal and also State Vs. Virender @ Bijender etc. SC No.57671/17 :: 48 ::
deposed by the Kajal herself. About 7-8 days before 10.09.08, Sanju brother of Virender also started living with Virender as deposed by PW-2 and PW-13 and other witnesses. Ld. Additional PP submitted that accused Virender and Madhu were known as husband and wife there. On 10.09.08 PW-2, PW-13, PW-15 saw Satender @ Nanhe in the room of Virender and they were taking dinner. They saw him there between 9 to 10 PM. PW-21 Shyam Babu Gupta also deposed that on 10.09.08 at about 10:00 PM when he made call to his brother Satender @ Nanhe, he told that he is with Madhu and her family and will stay back there. Ld. Additional PP submitted that in this regard, the most important witness PW-7 who is the daughter of Madhu also deposed in her cross-examination that Satender @ Nanhe was also there with them on that night. All the witnesses also deposed that thereafter they went to sleep corroborated by PW-7. In the morning, room was found locked. PW-7 deposed that during night Satender tried to do wrong act with her which she resisted. Her mother woke up, she tried to stop Satender @ Nanhe but Satender pushed her and the head of her mother State Vs. Virender @ Bijender etc. SC No.57671/17 :: 49 ::
struck against the wall. Virender also woke up. They two started grappling with each other which continued for considerable time and thereafter Satender fell down on the floor and became unconscious. Ld. Additional PP for State submitted that infact PW-7 is an eyewitness and she specifically deposed that it was Virender who has done so. Ld. Additional PP for State submitted that in the morning, Bimla saw accused persons i.e. Virender and Madhu leaving alongwith their children and one more boy.
78. On 12.09.08, the other residents of that house noticed blood coming out of room no. 1 and there was foul smell also. It is pertinent to mention that room no. 1 was in possession of accused Virender and Madhu. The room was found locked from the morning of 11.09.08. PW-2, PW-8, PW-9, PW-13 and PW-15 deposed in this regard. Om Kumar was called who made a call at 100 number. The information given by him is proved by examining Ct. Ajay Pal PW-28. The PCR Form No. 1 was proved as Ex. PW28/A. PCR reached there, lock was broke open. Inside the room in the right side corner, one iron box was lying. Blood was found dripping from State Vs. Virender @ Bijender etc. SC No.57671/17 :: 50 ::
the said box. It was opened and a dead body was found inside. Initially it was identified as dead body of Virender but after the statement of PW-1 Smt. Bimla and on closer look, PW-22, PW-13, PW-15 identified that it is not the body of Virender which they earlier thought but it is the body of the person they have seen in the room of Virender on the night of 10.09.08. Ld. Additional PP for State submitted that though the dead body was identified by PW-21 Shyam Babu Gupta and PW-24 Sh. Anil Kumar as of their brother Satender @ Nanhe but the controversy was set at rest by DNA Fingerprinting. After the postmortem, Doctor handed over the bones and teeth of the deceased which were seized vide memo Ex. PW41/A. The blood sample of Smt. Prema Devi was taken examined as PW-44. Prema Devi is mother of Shyam Babu Gupta and also of Satender. DNA Fingerprinting was carried out by PW-43 Sh. A.K. Shrivastava who after carrying out the gene scan and genotype examination opined the DNA profiling (STR Analysis) performed on the exhibits provided sufficient information to conclude that the source of Exhibit - 1(blood sample of Smt. Prema Devi) is biological mother State Vs. Virender @ Bijender etc. SC No.57671/17 :: 51 ::
of source of Exhibit - 2(Two teeth). Ld. Additional PP for State submitted that these teeth were taken from the dead body by Dr. Kulbhushan Goyal PW-10 at the time of postmortem. This clearly establishes that the dead body was of the son of Prema Devi PW-44. Ld. Additional PP for State submitted that the postmortem report also shows that deceased died due to asphyxia by putting pressure on the neck by third person i.e. throttling. Ld. Additional PP for State further submitted that the accused Virender also got recovered the mobile phone of the deceased having no. 9250296557. This SIM Card was seized from the possession of accused Virender when he alongwith Madhu was apprehended on 26.10.08 from the RTV Bus Stand, near Village Khoda. All the witnesses in this regard are consistent about the recovery of SIM Card. So far as recovery of mobile phone is concerend, PW-36, PW-39 HC Subhash Jagannath from local police station Pune, public witness Sanjay Sahab Rao PW-38 and IO PW-46 also proved that accused Virender led them to the house of PW-38 and there from a room situated at the back side of the H.No. 17-1/2, Ladi Hadapsar, Pune, State Vs. Virender @ Bijender etc. SC No.57671/17 :: 52 ::
Maharashtra, under the cemented sheet roof, he took out the mobile phone which was seized vide memo Ex. PW36/B (after putting in the sealed parcel). Ld. Additional PP for State submitted that this mobile phone was of the deceased and the recovery of this mobile phone coupled with the recovery of SIM Card which was purchased by Sh. Rakesh Kumar Gupta PW-23 by using his ID and filling of Customer Application Form Ex. PW23/A and the ID document Ex. PW23/B correctly identified by PW-23 and also proved by the Nodal Officer of the Service Provider Sh. Rajiv Ranjan examined as PW-42 points towards the guilt of the accused. Ld. Additional PP for State submitted that keeping in view the testimony of the witnesses examined fully establishes that relations between Madhu and Satender (Deceased) were strained as Satender had an evil eye on the daughter of Madhu, though Madhu and Satender were living as husband and wife. The animosity between the two was such that Madhu ultimately decided to leave Satender and started living with Virender present accused alongwith her daughter. There also Satender started coming and on State Vs. Virender @ Bijender etc. SC No.57671/17 :: 53 ::
10.09.08, he visited the house of Virender and Madhu i.e. Room No. 1 in property no. A-14 at Village Bajitpur, Delhi owned by Om Kumar. He was seen in the company of accused persons by PW-2, PW-9, PW-13 and PW-15 and also by PW-7 Kajal who is none else but the daughter of Madhu. She is so closely related to Madhu and Virender that she has no reason to depose falsely against her own mother and Virender whom she had referred in her examination as uncle. During night they all slept in that room except Sanju who had gone to the roof to sleep as deposed by PW-2, PW-13 and PW-15. Sumit went to sleep in the adjoining room alongwith Laxman. PW-21 also deposed about the presence of his brother in the company of Madhu and Virender as according to him when he talked with his brother on telephone at 10:00 PM on 10.09.08, his brother told him that he is at the house of Madhu, would take dinner there and stay back. The evidence of PW-7 shows and establishes that during night Satender tried to do wrong act with her due to which an altercation took place between Satender on one side and Madhu and Virender on another side. They throttled him due to State Vs. Virender @ Bijender etc. SC No.57671/17 :: 54 ::
which he died. The pressure was put on the neck of deceased and due to asphyxia as opined by Dr. Kulbhushan Goyal PW-10 he breathed his last. Ld. Additional PP for State submitted that in order to conceal the commission of offence, the clothes were changed as has come in the testimony of PW-13 that on the basis of the clothes found on the dead body, he identified that it is the dead body of Virender as clothes of Virender were found on the body of Satender. Ld. Additional PP for State submitted that thereafter they locked the room and left. It was a planned murder. Dead body was also identified initially as of Virender. All the beans were spilled when Smt. Bimla brought to the notice of Om Kumar after coming to know about the death of Virender that in the morning of 11.09.08, she had seen Virender alongwith his wife Madhu, two children and one more boy going on bicycle with one packet(Gathari) which was ultimately seized from the house of Bansi Lal PW-27. Ld. Additional PP for State submitted that the identity of the deceased was established as of the Satender. Both the accused who have fled away after committing the crime were also State Vs. Virender @ Bijender etc. SC No.57671/17 :: 55 ::
apprehended. There is recovery of SIM Card and Mobile phone belonging to deceased from the possession of accused Virender. All these facts clearly point towards the guilt of the accused that they committed murder of Satender @ Nanhe and even also changed the clothes of the body in order to conceal the commission of offence. It is prayed that both the accused persons be held guilty and convicted for the offence punishable u/s. 302 r/w 34 IPC and section 201 r/w 34 IPC.
79. Ld. Defence counsel submitted that the onus which was on the prosecution has not been discharged. The public witnesses did not support the prosecution case. Ranjeet PW-8, Jiten Ram PW-9, both stated that they had not seen any other person at the house of Virender. Ld. Counsel submitted that in fact Madhu has no relation with Virender and is not married to her. Virender was having his wife Poonam as deposed by his brother PW-32 and he also deposed that Madhu never lived with Virender in the house. Ld. Counsel further submitted that so far as PW-1 is concerned, she is not a reliable witness. She in her examination in chief stated that she had seen Virender going on his bicycle having a State Vs. Virender @ Bijender etc. SC No.57671/17 :: 56 ::
bundle (gathi) of his articles along with Madhu, two children and one more person but when she was recalled for cross examination, she did not support the prosecution case and hence no reliance on her testimony can be placed that accused persons were seen leaving in the morning of 11.09.08. There is no other evidence of last seen or absconding. Prosecution has alleged that Kajal was dropped with Urmila/PW-6 after the commission of offence and Sumit was dropped with Bansi Lal PW-27 but both of them did not support the prosecution case. There is no eye witness of the offence. There is nothing on record to link the accused persons with the commission of offence. Madhu was never there. They were not the residents in the house of Om Kumar. There is documentary evidence placed on record to prove and establish that Virender along with Madhu and children was residing as tenant in that house. There is also no recovery of any article to link the accused with the commission of offence. So far as recovery of mobile phone is concerned, though the prosecution alleges that this mobile phone was of Satinder but none of the witness examined and even the State Vs. Virender @ Bijender etc. SC No.57671/17 :: 57 ::
brother of the deceased PW-21 identified the said mobile phone allegedly got recovered by the accused from Pune was of Satinder @ Nanhe. Prosecution also alleges that even the sim of that mobile was taken by accused Virender which was seized from him at the time of arrest on 26.10.08 when he was apprehended near RTV bus stop, Khoda Village, Mayur Vihar. The sim of mobile no.9250296557 but there is no such evidence on record that this mobile phone no.was ever used by Satinder @ Nanhe. The brother of Satinder was examined as PW-21. He did not support the prosecution case in this regard that this mobile phone was of Satinder @ Nanhe or was ever used by him. He was cross examined on this aspect by Ld. APP but he still did not support the prosecution case on this point. It is alleged that Sh. Rakesh Kumar Gupta/PW-23 took this mobile phone no.on his ID Ex.PW-23/B and filled the customer application form Ex.PW-23/A and gave this sim to Satinder @ Nanhe but he did not support the prosecution case, though he admitted that he has taken this mobile phone no. but according to him he gave this sim to Dinesh but Dinesh has not been examined. The State Vs. Virender @ Bijender etc. SC No.57671/17 :: 58 ::
onus was on the prosecution to prove and establish that this mobile phone number was used by Satinder which the prosecution has failed to prove and establish. Prosecution also alleged that PW-21 talked with Satinder on mobile phone but firstly there is nothing on record as to what was the mobile phone number and then there is also no call detail record placed on the file to show that on the alleged date and time PW-21 talked with Satinder, who allegedly told him that he is with Madhu and Virender. Ld. Defence counsel submitted that there is no other evidence to link him with the commission of offence and prayed that benefit of the same be given to the accused persons and they be acquitted.
80. After hearing the arguments and going through the record, I found that in this case there is a star witness PW-7 Ms. Kajal, who is none else but the daughter of accused Madhu. She also referred the co- accused Virender as uncle. Though it has come in the testimony of other witnesses that Madhu was treated as wife by Virender and also so considered by the society. In view of this fact PW-7 is daughter of both the State Vs. Virender @ Bijender etc. SC No.57671/17 :: 59 ::
accused, though she is biological daughter of Madhu and Rakesh Gupta/PW-3. She stated that deceased was at their room on the intervening night of 10/11.09.08. This testimony of PW-7 finds corroboration from the testimony of PW-2, PW-9, PW-13 and PW-15. It is also important to note that PW-7 was called for cross examination on the application of the accused persons under Sec.311 Cr.PC wherein she deposed this fact. There is nothing on record that PW-7 has any reason to depose falsely against her own mother and father in this regard. Even there is nothing on record that PW-2, PW-9, PW-13 and PW-15 had any reason to depose falsely against the accused persons, rather they also said that conduct of the accused persons was very good and they had never seen them quarreling or fighting with any body. From the testimony of these witnesses, it is clear that Satinder @ Nanhe was with both the accused on the intervening night of 10/11.09.08.
81. So far as the reason of animosity is concerned that is laid down by the PW-3, PW-21 and PW-7. It is pertinent to mention here that Madhu was firstly married State Vs. Virender @ Bijender etc. SC No.57671/17 :: 60 ::
with PW-3 Rakesh Gupta, two sons and daughter Kajal were born out of that wed lock. Sh. Satinder @ Nanhe became friendly with Rakesh Gupta as they two were in the same business of selling meat. Satinder started visiting the house of Rakesh Gupta and became friendly with Madhu. He started visiting even in the absence of Rakesh Gupta and at the time of delivery of wife of Shyam Babu Gupta, Madhu stayed at the house of Shyam Babu Gupta. From there also Rakesh Gupta came to know about the relations between Madhu and Satinder. Rakesh Gupta asked Madhu to mend her ways but Madhu continued meeting Satinder and ultimately they parted their ways. Madhu along with Kajal started living with Satinder. This fact was deposed by PW-1, PW-3 and also by PW-7. They lived together for 7-8 years but the relations between Madhu and Satinder also strained as Satinder tried to outrage the modesty of Kajal as has come in the testimony of PW-7. The two i.e. Madhu and Satinder living together has also come in the testimony of PW-3 and PW-21 and there is no cross examination on this aspect that they were not living together, supported and well corroborated by the State Vs. Virender @ Bijender etc. SC No.57671/17 :: 61 ::
testimony of PW-7. I do not find any reason to disbelieve the testimony of PW-3, PW-7 and PW-21 in this regard. Due to this attempt to outrage the modesty, Madhu left the house of Satinder and this time she started living with Virender at Bazitpur, Bawana. According to PW-7, there also Satinder came and he was there on 10.09.08. As Satinder was having evil eye on Kajal that is why there was ill blood between Madhu and Satinder. On the intervening night of 10/11.09.08 Satinder again admitted to do wrong act with Kajal which was resisted by Kajal, in the process both the accused woke up and they killed Satinder by pressing his neck.
82. The fact that Satinder did not die a natural death but died due to pressing neck is evident from the post mortem report as Ex.PW-10/A where the doctor opined that the deceased died due to asphyxia consequent to pressure upon the neck put by the third party (throttling). This fact is also corroborated by PW-7, who deposed that when her parents woke up, they grappled with the deceased which continued till Satinder fell on the ground i.e. they pressed his neck till he died. Thereafter they State Vs. Virender @ Bijender etc. SC No.57671/17 :: 62 ::
changed the clothes of the deceased put on the clothes of Virender on the dead body. Thereafter stuffed the dead body in the iron box which was found lying on the right side corner of the room, locked the room and absconded.
83. It was only on 12.09.08 that the people residing in that building found the blood coming out the room and the foul smell. Police was called and the dead body was recovered which was identified as of Virender. These facts clearly show that they also tried to destroy the evidence to conceal the commission of offence by changing the clothes and putting on the clothes of Virender. But later on the dead body was found to be not of Virender but of Satinder. In this regard testimony of PW-1 Bimla is very important, though the defence has alleged that in the cross examination, she did not support the prosecution case and therefore, no reliance on her testimony can be placed but keeping in view the fact that she was examined in chief in 2009 i.e. on 10.12.09 and her cross examination was conducted on 21.5.15 that is after a gap of about five and half years and the possibility that she was won over during this State Vs. Virender @ Bijender etc. SC No.57671/17 :: 63 ::
period or her memory had faded can not be ruled out and under the circumstances, in my opinion, the reliance on her testimony can certainly be placed coupled with the fact that Virender is alive and that dead body is now identified to be of Satinder which is also established by DNA finger printing as the DNA of the deceased tallied with the DNA of Ms. Prema Devi/PW-44 and the expert Sh.A.K.Shrivastav/PW-43 opined that Prema Devi is the biological mother of the deceased. The testimony of PW-43 as well as PW-44 has gone unchallenged and un controverted. Hence it is clear that the dead body was not of Virender but was of Satinder.
84. In this case prosecution has also alleged the recovery of mobile phone of the deceased at the instance of accused Virender from the house of Sanjay PW-38 but as rightly pointed out by the defence, there is no evidence on record to prove or show that the mobile phone got recovered by Virender was of Satinder or was used at any time by Satinder. There is no oral evidence or documentary evidence to establish this fact, hence this recovery of mobile phone is of no consequence.
85. Prosecution has also alleged the recovery of the State Vs. Virender @ Bijender etc. SC No.57671/17 :: 64 ::
sim card of mobile no.9250296557 in the personal search of accused Virender and alleged that this mobile phone no.was used by Satinder but again there is no evidence to show that this mobile phone no.was ever used by Satinder. As per the evidence this mobile no. was issued on the ID of Rakesh Kumar Gupta/PW-23. He identified his ID as the customer application form as Ex.PW-23/B and PW-23/A respectively. But he also deposed that this sim was taken for the use of mumia sasur of Dinesh Kumar. He did not support the case that Satinder was mumia sasur of Dinesh or that the sim was given to Satinder. He specifically deposed that he handed over the sim to Dinesh. Dinesh has not been examined to prove that he handed over the sim to Satinder, which was given to him by PW-23 Rakesh Kumar Gupta. The other witness, who could have proved the use of this phone no. by Satinder @ Nanhe was Shyam Babu Gupta/PW-21 but he also did not support the prosecution case in this regard. Though it was specifically put to him that mobile phone no.9250296557 was used by his brother but he stated that he can not confirm the same. Hence in my opinion State Vs. Virender @ Bijender etc. SC No.57671/17 :: 65 ::
this fact is also not established.
86. Keeping in view the above discussions, the testimony of witnesses particularly of PW-7, it is established that deceased was in the company of the accused persons on the intervening night of 10/11.09.08 in room no.1 of house no.A-14 at about 10 PM. He took the dinner there and stayed with them and in the morning the room was found locked. Thereafter no body has seen Satinder alive and on 12.09.08 the dead body of Satinder was found in the same room. He was found to have been murdered by pressing the neck. According to the post mortem report the time of death is also some where during the night of 10.11.09.08. There is proximity of place and time from the circumstance of last seen coupled with the testimony of PW-7, who is none else but the daughter of both the accused persons and the fact that there was animosity between Madhu and deceased as the deceased was having an evil eye on the daughter of Madhu and hence she and Virender had a strong motive to eliminate her and also the fact that Satinder was earlier husband of Madhu.
87. Keeping in view all these facts and the evidence State Vs. Virender @ Bijender etc. SC No.57671/17 :: 66 ::
on record, I am of the opinion that Satinder was murdered by both the accused persons and thereafter they also destroyed the evidence in order to conceal the commission of offence. I therefore, hold both of them guilty and convict them for the offence punishable under Sec.302 read with Sec.34 and Sec.201 read with Sec.34 IPC.
88. Now come up for argument on the quantum of sentence on 21.03.2017.
Announced in the open court today on 18.03.2017 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
State Vs. Virender @ Bijender etc. SC No.57671/17 :: 67 ::