Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 21 August, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 18/1
Unique Identification No. 02404R5812522004
State
Versus
1) Bhajan Singh @ gulla
Son of Sh. Balvinder Singh
R/o B6/320, Sector17,
Rohini,Delhi.
2) Joginder Singh @ Jagga
Son of Sh. Laxman Singh
R/o B7/144, Sector17,
Rohini, Delhi.
3) Ashok @ Bobby
Son of Sh. Bishandass
R/o 114/89, Pratap Nagar,
Sanganer, Jaipur (Rajasthan)
FIR No. 621/04
PS - Prashant Vihar
U/s. 302 read with Section 120B IPC
& U/s. 201 read with Section 120B IPC
Date of Decision: 19/08/2013
Date of order on Sentence: 21/08/2013
ORDER ON SENTENCE
21/08/2013
Present. Present. Ld. APP for the State.
All the three convicts from J.C. with learned amicus curiae Ms. Sadhna Bhatia
and Sh. Shubham Asri.
Heard on the point of sentence.
Learned amicus curiae has contended that convict Joginder Singh is aged about
SC No. 18/1 1
32 years. He is unmarried. He is having one mother to support. He is having his own house.
Learned amicus curiae has further contended that he is not a previous convict nor habitual
offender. It is further contended that he remained in custody during trial from 15/07/2004 till
today.
Learned amicus curiae has contended that convict Ashok @ Bobby is aged
about 33 years. He is unmarried. He is having one mother and married sister to support.
He is having his own house. Learned amicus curiae has further contended that he is not a
previous convict nor habitual offender. It is further contended that he remained in custody
during trial from 15/07/2004 till today.
Learned amicus curiae has contended that convict Bhajan Singh is aged about
33 years. He is married, having wife and one son to support. He is having his own house.
Learned amicus curiae has further contended that he is not a previous convict nor habitual
offender. It is further contended that he remained in custody during trial from 15/07/2004 till
today.
On the other hand, ld. APP has contended that in a planned manner under
conspiracy, murder has been committed, hence, the same comes within the definition of
rarest of the rare case. It is further contended that compensation be also awarded in favour of
the family members of deceased Wasim.
I have considered the submissions of ld. APP and both the learned Amicus
Curiae for convicts. The prosecution has been able to prove offences U/s. 120B of IPC,
U/s. 302 read with Section 120B of IPC and U/s. 201 read with Section 120B of IPC only,
so, in my view, the murder proved against the convicts is not falling within the ambit of
rarest of rare case.
Offence U/s. 302 of IPC is punishable with death or imprisonment for life and
shall also be liable to fine.
Accordingly, imprisonment for life is awarded to each convict U/s. 302 read
with Section 120B of IPC with fine of Rs. 5,000/. In default of payment of fine, each shall
further undergo six months S.I.
Offence 201 of IPC is punishable with imprisonment of either description for a
term, which may extend to seven years and shall also be liable to fine.
SC No. 18/1 2
Accordingly, imprisonment for seven years is awarded to each convict U/s.
201 read with Section 120B of IPC with fine of Rs. 5,000/. In default of payment of fine,
each shall further undergo six months S.I.
On the point of compensation, it is contended by learned amicus curiae that
due to weak financial position, convicts remained unable to engage any counsel during trial,
so, amicus curiae were appointed and they are also in custody since 2004, so, they are
unable to pay any compensation.
It has been held in Delhi Domestic Working Women's forum V. Union of
India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice
Act 1972 which gave the Courts powers to make an ancillary order for compensation in
addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The
Criminal Justice Act 1982 made it possible for the first time to make a compensation order
as the sole penalty. It also required that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the fine. These
developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims
of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required
courts to consider the making of a compensation order in every case of death, injury, loss or
damage and, where such an order was not given, imposed a duty on the court to give
reasons for not doing so. It also extended the range of injuries eligible for compensation.
These new requirements mean that if the court fails to make a compensation order, it must
furnish reasons. Where reasons are given, the victim may apply for these to be subject to
judicial review. The 1991 Criminal Justice Act contains a number of provisions which
directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in
Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of
Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation
have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to
the violations of human rights or international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life, citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law, such as;
SC No. 18/1 3
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical
services.
In view of above, on account of loss of love and affection due to death of
Wasim, a compensation of Rs.30,000/ is imposed upon each convict and total Rs. 90,000/
are awarded in favour of the parents of child, if deposited and no appeal is preferred within
the period of limitation. In default of payment of compensation, each convict shall undergo
six months simple imprisonment.
All the substantive sentences of imprisonment shall run concurrently.
Benefit of Section 428 of Cr.P.C. be given to the convicts.
Fine and compensation not deposited.
Convicts are remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 21st of August, 2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 18/1 4
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 18/1
Unique Identification No. 02404R5812522004
State
Versus
1) Bhajan Singh @ gulla
Son of Sh. Balvinder Singh
R/o B6/320, Sector17,
Rohini,Delhi.
2) Joginder Singh @ Jagga
Son of Sh. Laxman Singh
R/o B7/144, Sector17,
Rohini, Delhi.
3) Ashok @ Bobby
Son of Sh. Bishandass
R/o 114/89, Pratap Nagar,
Sanganer, Jaipur (Rajasthan)
FIR No. 621/04
PS - Prashant Vihar
U/s. 364A/302/201/120B/34 IPC
Date of institution of the case: 12/10/2004
Arguments heard on: 16/08/2013
Date of reservation of Order: 16/08/2013
Date of Decision: 19/08/2013
JUDGMENT
This case was registered U/s. 364A of IPC on the statement of one Mohd. Yunus on 11/07/2004, wherein he deposed that he had received a phone call on his mobile No. 9810119204 from mobile No. 9899122565 that his son Waseem, aged about 8 years, who was studying in Sachdeva Public School, was kidnapped and the caller had asked him to arrange Rs. 25 lacs. The investigation was carried out by SI Jai Prakash.
SC No. 18/1 5
This fact was brought to the knowledge of senior officers and a separate of statement of Mohd. Yunus was recorded regarding description of the child. Photograph of the child was obtained and police teams were constituted for searching the child.
During investigation, mobile No. 9899122565, through which, ransom call was received, was found to be of Hutch company. The details of the mobile phone were collected from Hutch company. It was having IMEI No. 3506043021848039. Permission was obtained to intercept the calls or messages of mobile No. 9810119204 and 9899122565. Accordingly, the calls were recorded. On the basis of IMEI No. 3506043021848039, original mobile phone number was obtained from Hutch company, which was found as 9871155519 of Air Tel company. Ransom calls were recorded. One cassette was got prepared regarding conversation between the complainant and caller, which was seized by preparing a memo. Thereafter, investigation was handed over to Inspector T.R. Mongia.
During investigation, it was found that most of the calls i.e. outgoing and incoming on mobile phone No. 9871155519 were made/received on 11/07/2004 to/from phone No. 20089749. Ownership of this MTNL Garuda phone No. 20089749 was obtained. It was found in the name of Bhajan Singh, R/o B6/320, Sector17, Rohini, Delhi. On inquiry, accused Bhajan Singh had admitted his involvement and involvement of his coaccused Joginder Singh @ Jagga and Ashok @ Bobby in kidnapping child Wasim, demanding of ransom money, committing murder of the child and throwing his dead body in Jagatpur ganda nala.
Accordingly, he was arrested in this case on 15/07/2004. His personal search was conducted. He also made disclosure statement. His body inspection memo was prepared. On the same day, on the pointing of accused Bhajan Singh, accused Joginder Singh @ Jagga and Ashok @ Bobby were also arrested in this case. Their arrest memos were prepared. Their personal searches were conducted. They also made disclosure statements. Their body inspection memos were prepared. SC No. 18/1 6
Thereafter, all the three accused persons pointed out the place, where they had thrown the dead body of Wasim. One gunny bag was got recovered from the nalla with the help of one diver Abdul Sattar. It was found tied with a rope (sutli). Photographs of the gunny bag were taken. One another gunny bag was found in the said bag. It was opened and was found containing dead body of Wasim, two bricks and one ¾ piece of brick. These were also got photographed and were seized by preparing a pointing cum seizure memo. Rough site plan of the said place was prepared. Dead body was removed to the mortuary of BJRM hospital. Brief facts were prepared. Statements regarding identification of dead body were recorded. Postmortem of the dead body was got conducted and it was also got photographed through one private photographer. After postmortem, dead body was handed over to Mohd. Yunus by preparing a memo. Clothes of deceased, rope (sutli) and one sample seal were seized by preparing a memo. Postmortem report was collected.
Accused Joginder Singh @ Jagga pointed out the place, where he had kidnapped Wasim. Pointing out memo in this regard was prepared. All the three accused persons also pointed out the place i.e. kitchen of H.No. B7/144, Sector17, Rohini, Delhi, where they had confined Wasim and later on committed his murder and also pointed out the bathroom in the said house, where they had kept the gunny bag containing dead body for sometime. Pointing out memo in this regard was prepared. Site plan was also prepared.
Thereafter, Accused Bhajan Singh got recovered one mobile phone make Motorola from his house bearing No. 20089749, which was used in the commission of offence. The same was seized by preparing a memo.
One Maruti Van No. DL2CK0823 of white colour with its four keys in a key ring was also seized in this case on the pointing of accused persons, which was used by them for dumping the dead body in the nala. Photocopy of RC, insurance, ration card and driving licence of this Maruti van were also seized by preparing a memo.
SC No. 18/1 7
On 16/07/2004, all the three accused were produced before the Court and their three days PC remand was obtained. On 17/07/2004, accused Joginder Singh @ Jagga pointed out the place, where he had concealed the cycle of deceased child Wasim. At his instance, cycle was recovered from there, which was seized by preparing a memo. Two mobile phone make Nokia bearing No. 9871155519 and 9871204450 were also seized, which were got recovered by accused Joginder Singh from his house.
One pair of relaxo chappal belonging to deceased child Wasim, which were concealed by accused Ashok @ Bobby in the heap of bricks on the roof of H.No. B7/144, Sector17, Rohini, were also seized in this case.
One Taveez, one keyring and one broken basket of cycle of deceased were also seized in this case, which were recovered at the instance of accused Bhajan Singh @ Gulla. One Sim card got recovered by accused Bhajan Singh was also seized in this case by preparing a memo. One scooter No. DL8SK5582 was also seized in this case on the pointing of accused Bhajan Singh and Joginder Singh @ Jagga. Photocopy of RC, insurance and voter I/card of scooter, which was belonging to one Vivek were also seized by preparing a memo.
Voice samples of all the three accused persons were taken in two cassettes, which were seized in this case by preparing a memo. Later on, section 120B of IPC was added. Permission for sending the voice samples of accused persons to CFSL, Delhi, was moved. Scaled site plan was also got prepared. One floppy and telephone bill pertaining to mobile No. 20089749 were also seized in this case. Call details of this mobile phone were got printed from the said floppy. Voice samples of accused persons and another cassette in which the voice of accused persons were recorded at the time of making ransom calls, were also sent to CFSL, Chandigarh. CFSL report was obtained.
On completion of investigation, chargesheet was filed U/s.
364A/302/201/120B/34 IPC against all the three accused persons, which was SC No. 18/1 8 committed to the court of Session on 17/01/2005 and was received on 31/01/2005.
Charge U/s. 120B IPC, U/s. 364/120B IPC, U/s. 364A/120B IPC, U/s. 302/120B of IPC and U/s. 201/120B of IPC was framed against all the three accused persons, to which, they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW32 in all.
On completion of evidence of prosecution, statements of all the accused persons were recorded U/s. 313 Cr.P.C. They have denied the case of prosecution and have claimed that they are innocent and have been falsely implicated in this case. No witness has been examined in defence.
I have heard learned APP for the State, both the learned amicus curiae for all the accused persons and have gone through the material placed on record with evidence adduced.
Finding qua offence U/s. 364 read with 120B IPC:
PW16 Mohd.Yunus is father of deceased. He has stated that Wasim Ahmed was his son. In the year 2004, Wasim, aged about 8 years, was studying in Sachdeva Public School, Sector13, Rohini, Delhi. He has a shop in Samay Pur Badli. He deals in metal trading at that shop. On 11/07/2004, at around 2.00 p.m., he came to his house No. B2/42, Sector17, Rohini, Delhi, from his above shop to take lunch. At around 3.30 p.m. on 11/07/2004, his son Wasim came out of the house with his cycle and had taken the keys of his motorcycle. As he had to go to his shop, so, he came out of the house and started searching for his son Wasim, but Wasim was nowhere available. Neither his cycle was there.
PW16 Mohd.Yunus has further deposed that he went in search of Wasim to District Park, Sector16, Rohini, Delhi. There, he received a call on his mobile No. 9810119204 from mobile No. 9899122565 at around 7.30 p.m. The caller told him that he need not to look for his son Wasim as his son Wasim was with him. The caller further told him that he should arrange Rs. 25 lacs to get his son released from him and warned him not to inform the police. He noticed some police officials near District Park, Rohini. He immediately informed them about the fact of receiving the call. The police official was SI SC No. 18/1 9 Jai Prakash, who recorded his statement Ex. PW16/A. On the asking of the IO, he gave description of his son. He told the police that his son Wasim, when left the house, was wearing checkdar cream colour kurta, cream colour pajama and light blue colour Relaxo chappal. He also told to the police that Wasim was wearing a black thread with a taveez, having photo of Ajmer Sharif and a slip bearing his name and the name of Wasim in Urdu, in his neck. Wasim was also wearing another Taveez in black thread. The bicycle, which Wasim had carried, was of purple colour with address of their house engraved on its handles. He also told to the police that the said cycle was of make Avon, having two small supporting wheels and a backseat. He also told to the police that there was a small basket affixed with the handle of the bicycle. He also gave photograph Ex. P1 of his son to the police. On the above facts, PW16 Mohd.Yunus has not been cross examined on any material aspect.
In the cross examination, PW16 Mohd.Yunus has stated that there were three police officials. The facts, as deposed by him, were reduced into writing, while sitting on a motorcycle. Thereafter, police official had told him that they will search his son and had advised him to search.
To prove the last seen evidence, PW2 Anis Khan has been examined. He has stated that he lives at H.No. 220, Gali No.1, Babu Nagar, Old Mustfabad since 12/07/2004 and prior to that, he was living at B6/150, Sector17, Rohini. He was knowing PW16 Yunus, who was dealing in iron scrap. He was also dealing in iron scrap and in connection with the business, he used to visit Yunus. He had visited his house on 24 occasions. PW2 Anis Khan had identified the photograph Ex. P1 of Wasim, son of PW16 Yunus.
PW2 Anis Khan has further deposed that he was living in a tenanted house in Rohini and his landlord asked him to vacate the house, so he was in search of another house. On 11/07/2004, at about 3.30/3.45 p.m., he came out of his house. There was a park at a distance of about 200/250 meters from his house. When he reached there, he saw Wasim near the corner of the park. Wasim was going on foot and he had a cycle with him. Accused Joginder was with him at that time. He asked Wasim as to where he was going, at which, Wasim told that he was going to fetch kite from the house of his uncle and then left.
PW2 Anis Khan has further deposed that on 12/07/2004, he shifted to Old SC No. 18/1 10 Mustafabad. On 15/07/2004, he received a telephone call from PW16 Yunus in the afternoon, who told that his son Wasim was kidnapped and murdered and his dead body was recovered from Ganda Nala, Sant Nagar, Burari, so, he should reach there. He reached at Ganda Nalla at about 4.00 p.m., but none was found present there. There was a crowd and from the crowd, he came to know that dead body of Wasim was taken to hospital. He reached at Jagjeevan Ram hospital, Jahangir Puri, but the dead body was already removed from there. PW16 Yunus did not meet him in the hospital. Police was present in the hospital and his statement was recorded. Then, he came to his house. PW2 Anis Khan has identified the cycle as Ex. P2 before the Court as the same, which Wasim had with him, when he was going with accused Joginder.
In the cross examination, PW2 Anis Khan has stated that he made inquiries in the mortuary about Wasim and Yunus, then police made inquiries from him and he narrated the incident and his statement was recorded. His statement was recorded using the bonnet of the vehicle. Police met him in the hospital at about 5.00 p.m. and his statement was recorded in 1520 p.m. and he left the hospital at about 5.30 p.m. In further cross examination, PW2 Anis Khan has further stated that after 11/07/2004, he had seen accused Joginder for the first time in the Court. He had also seen other two accused persons present in the Court and told that he had not seen other two accused persons on 11/07/2004 with Wasim.
Learned defence counsel has contended that accused Joginder was not put to TIP, to be identified by PW2 Anis Khan to prove the last seen evidence. It is further contended by learned defence counsel that presence of PW2 Anis Khan on 11/07/2004 at about 3.30/3.45 p.m. seems to be doubtful as he has stated in the cross examination that he used to go to his shop at 9.00 a.m. and leave at around 8.00 p.m. He does not observe any weekly holiday and works on all the seven days. On 11/07/2004, he had not gone to his shop since morning. Learned defence counsel has further contended that it is not explained as to why on 11/07/2004, he had not gone to his shop, so, his presence at about 3.30/3.45 p.m. at his house is doubtful and he is a planted witness. Learned defence counsel has further contended that even otherwise, if he was a witness of last seen and was residing in Rohini at that time in the area, where complainant was residing, then he came to know about SC No. 18/1 11 the incident on 15/07/2004 from PW16 Mohd. Yunus on telephone, also seems to be doubtful as PW16 Mohd. Yunus has nowhere deposed that on 15/07/2004, he had informed PW2 Anis Khan to reach at the place, where dead body was recovered.
Learned defence counsel has further contended that according to cross examination of PW2 Anis Khan, accused Joginder was known to him as he was also resident of Sector17, Rohini, but again, he has failed to depose as to how he was knowing accused Joginder. Learned defence counsel has further contended that according to PW2 Anis Khan, accused Joginder was not holding either cycle or hand of Wasim, when he saw him, but he was walking with Wasim, which does not prove that accused Joginder had allured Wasim on the pretext of giving kite to him and kidnapped him. Learned defence counsel has further contended that according to cross of PW2 Anis Khan, he had read name of accused Joginder in the newspaper and then he came to know that his name was Joginder, which itself is in contradiction to the cross of PW2 Anis Khan, wherein he has stated that accused Joginder was known to him.
PW2 Anis Khan has further stated in the cross examination that he had told PW16 Yunus on telephone that he had seen accused Joginder with Wasim on 11/07/2004, but this fact has not been told by PW2 Anis Khan to police nor corroborated in any manner. Had it been so, then accused Joginder could have been apprehended earlier to the recovery of dead body. PW2 Anis Khan has failed to depose as to on which date, he told PW16 Yunus that he had seen accused Joginder with Wasim on 11/07/2004. PW2 Anis Khan has further stated in the cross examination that photographs of all the accused persons were telecast on T.V. on 15/07/2004 and he had seen those photographs before telling Yunus. He was not called by the police for identification of accused Joginder, which shows that PW2 Anis Khan is a planted witness and neither he was knowing accused Joginder nor he had seen accused Joginder on 11/07/2004 at about 3.30/3.45 p.m. and his presence at his house on that day seems to be doubtful as his working hours of the shop were from 9.00 a.m. to 8.00 pm and he used to work on all days. He was not observing any holiday. He has failed to disclose as to why on 11/07/2004, he was present in his house.
Learned defence counsel has further contended that according to statement of PW2 Anis Khan recorded U/s. 161 of Cr.P.C., he had shifted from Rohini on 12/07/2004, SC No. 18/1 12 whereas according to his deposition before the Court, he was searching house till 11/07/2004, so, how he got house overnight and shifted to Mustafabad, Jamunapar, which also shows that the entire story of last seen evidence has been fabricated and PW2 Anis Khan is a planted witness.
According to PW32 Retired ACP Sh. Tilak Raj, in the mortuary on 15/07/2004, witness PW2 Anis Khan met him and told that on 11/07/2004, he had seen deceased boy with accused Joginder. He recorded his statement. Dead body was recovered by the accused persons on 15/07/2004 itself. In the mortuary, all the three accused persons were with this witness PW32 ACP Sh. Tilak Raj. In the cross examination, PW32 has stated that he did not find any last seen evidence in between 11/07/2004 to 14/07/2004 regarding the kidnapping of Wasim by accused persons and there was no incriminating evidence against accused Joginder Singh and Ashok Kumar except the disclosure statement of accused Bhajan Singh, which itself falsify the deposition of PW2 Anis Khan, who has stated in the cross examination that he had told to the complainant on telephone that he had seen accused Joginder with Wasim on 11/07/2004. Had it been so, then certainly complainant would have told this fact to the police in between 11/07/2004 to 14/07/2004 and it shows that no such information was given by PW2 Anis Khan to the complainant about last seen evidence of accused Joginder with Wasim.
In view of above, prosecution has not been able to bring on record any cogent and trustworthy evidence to prove the fact that Wasim was kidnapped by accused Joginder beyond reasonable doubts.
The contentions of learned defence counsel are forceful. The deposition of PW2 Anis Khan is not inspiring any confidence in view of the contradictions and his presence at that time seems to be doubtful, so, he cannot be relied upon regarding the last seen evidence to the extent that he had seen accused Joginder Singh taking deceased Wasim on 11/07/2004 at about 3.30 p.m. Accordingly, prosecution has not been able to prove offence U/s. 364 of IPC read with Section 120B of IPC against the accused persons, for which, they are acquitted.
Finding qua offence U/s. 364A read with Section 120B of IPC:
According to PW16 Mohd. Yunus, he received a call on his mobile No. SC No. 18/1 13 9810119204 from mobile no. 9899122565 at around 7.30 p.m. The caller asked him to arrange Rs. 25 lacs for the release of his son. On the same day, complainant met with the police in the area and got recorded his statement Ex. PW16/A, on which, case was registered, so, first call was received regarding ransom by complainant on 11/07/2004 itself at about 7.30 p.m. PW16 has further deposed that on 12/07/2004, he again received a call on his mobile no. 9810119204 from the same mobile NO. 9899122565 at around 5.50 p.m. The caller asked him as to whether he had arranged the money. He replied that he had arranged Rs. 2.50 lacs and the remaining money will be obtained from Wazirpur. He requested the caller to put his son Wasim on line, but he refused. The caller told that he will call him again after 1½/2 hours.
PW16 Mohd. Yunus has further deposed that then he went to Wazirpur to arrange the remaining money. When he was in Wazirpur, he again received a call on his mobile no. 9810119204 from the same mobile No. 9899122565. The caller again asked for money. He replied that he was still arranging the desire sum. The caller reduced his demand from Rs. 25 lacs to Rs. 5 lacs. He replied that he could arrange only Rs. 3.50 lacs and will bring the money, where they desire. The caller then told him that he was worth more than Rs. 3.50 lacs and asked him to come tomorrow i.e. on 13/07/2004 to Rithala Metro Station at 6.00 p.m. He again requested the caller to let him talk with his son Wasim, but he refused. He kept the caller busy during this call as the police had told him that they would intercept his mobile calls and he should keep the caller busy for a longer period, so, he immediately went to Police Post Sector16, Rohini, and told the above facts to IO SI Jai Prakash, who recorded his statement.
PW16 Mohd. Yunus has further deposed that on 13/07/2004, in between 5.30 p.m. to 6.00 p.m., he received a phone call on his abovesaid mobile number from the same mobile number of the caller/kidnapper, who asked him as to why he did not reach at Rithala Metro Station, at which, he replied that he was about to leave his house. He again requested the caller to let him talk to his son Wasim, but the caller asked him to keep mum and to reach at Rithala Metro Station immediately. The caller then asked him as to what type of vehicle he was having, at which, he replied that he was having a Maruti 800 and a Zen, but those cars were not working, as such, he would borrow the car from a neighour and SC No. 18/1 14 would reach at Rithala Metro Station. The caller then asked him, if he had another mobile. The complainant replied him in negative. The caller then instructed him that he should carry the money in a white thaila and further instructed that he should board Metro train from Rithala Metro Station and should get down at Pratap Nagar Metro Station.
PW16 Mohd. Yunus has further deposed that as per instructions, he put Rs. 3.50 lacs in a while thaila and then proceeded to Rithala Metro Station with the money in a while thaila, in a car. On reaching Rithala Metro Station, he boarded the metro train. While he was in metro train, he again received a call on his above mobile No. 9810119204 from the caller of same mobile no. 9899122565, who asked him as to where he had reached.
Complainant told that he had reached upto Pitampura. The caller asked him to hurry up and instructed him that he should get down at Pratap Nagar Metro Station and catch a train at 7.40 p.m. to go to Sonepat from Subzi Mandi Station. The caller then instructed him that after getting a ticket to Sonepat, he should sit in the last compartment and ended the call.
PW16 Mohd. Yunus has further deposed that he got down at Pratap Nagar Metro Station and from there, he reached at Subzi Mandi Railway Station. There, he came to know that 7.40 p.m. train to Sonepat had already left. When he was standing at Subzi Mandi Railway Station, he again received a call on his above mobile from the caller of the abovesaid mobile number and told him that the train had already left. The caller then instructed him that he should keep standing at Subzi Mandi Railway Station and should wait for the other train to Sonepat, which would come at 9.230 p.m. and ended the call. PW16 Mohd. Yunus kept standing at Subzi Mandi Railway Station and bought a rail ticket to Sonepat. Probably at around, 9.00/9.30 p.m., Mail train came at Subzi Mandi Railway Station and he boarded the second last or third last compartment in that train. While he was in the said train, he again received a call on his above mobile number from the caller of the same mobile number and caller asked him as to where he had reached, at which, he replied that the train had reached upto Azadpur. The caller further asked him if he was coming with the money. He replied in affirmative. This was the last call of the caller.
PW16 Mohd. Yunus has further deposed that in the said train, police was also with him. Police personnel were in plain clothes. They went upto Sonepat. The caller from the other side had instructed him to throw the bag of money. Since police had told him not SC No. 18/1 15 to throw the bag, so he did not throw the same. Thereafter, they came back to Delhi from Sonepat.
So in all, PW16 Mohd. Yunus received ransom call on 11/07/2004 at 7.30 p.m.; on 12/07/2004 at about 5.50 p.m.; again one more call was made on 12/07/2004 demanding money , on 13/07/2004 in between 5.30 p.m. to 6.00 p.m. and on the same day, again PW16 Mohd. Yunus received a call, while he was in Metro Train. Again, call was received by PW16 Mohd. Yunus at Subzi Mandi Railway Station. One more call was received by PW16, when he was in the train going towards Sonepat. According to statement of PW16 Mohd. Yunus, in all these calls, the caller had used mobile No. 9899122565 and has also stated that police had told him that they would be intercepting his mobile calls, so, he should keep the said caller busy for a longer time. It was on 12/07/2004, he immediately went to Police Post Sector16, Rohini and told the above facts to SI Jai Prakash, who recorded his statement. So, according to PW16 Mohd. Yunus, calls were intercepted on 12/07/2004.
Learned defence counsel has contended that even statement recorded by SI Jai Prakash of PW16 Mohd. Yunus dated 12/07/2004 is not in the form of statement, rather it is in the form of conversation. According to PW16 Mohd. Yunus, he kept the caller busy during the call and went to PP Sector16, Rohini, and told the facts to SI Jai Prakash, who recorded his statement, but the statement, as recorded in the conversation form, shows that he had recorded the statement at his own, otherwise, the witness could not be able to tell the facts in the manner, in which, alleged conversation had taken place. It shows that no such statement was given by PW16 Mohd. Yunus to SI Jai Prakash on 12/07/2004, rather phone call was illegally intercepted and the same was converted into statement recorded U/s. 161 of Cr.P.C.
According to PW8 Vikas Sharma @ vicky, for the last one year, he was dealing in the business of sale and purchase of mobile phones in the area of Shakur Pur. On 09/07/2004, one person by the name of Devinder Pal came in his shop for the purpose of getting his mobile phone repaired and after sometime, he told him that instead of repairing, he wanted to sell his mobile phone make 5110 Nokia. He told him that mobile could be repaired and it would be better, if the same be repaired and even if he wanted to sell the same, its price is only Rs. 1000/. Leaving his mobile, the said person left the shop, as he SC No. 18/1 16 had demanded proof regarding the mobile, if he wanted to sell the same, to bring the proofs. PW8 has further deposed that meanwhile, he started repairing the mobile phone and while repairing, he got one SIM from the mobile bearing No. 9899122565 and one mobile chip. He kept the same in his counter and said Devinder Pal did not return till the night of 09/07/2004.
PW8 Vikash Sharma has further deposed that on the next day, he threw the chip, which was got from the mobile, in the dustbin. On 10/07/2004, accused Bhajan Singh came to his shop and asked for new SIM card. PW8 asked him to take the new SIM card, he had to furnish some documentary proof regarding his identity, at which, accused Bhajan Singh told that he had not brought any proof. So, PW8 denied to give him new number without proof. Thereafter, accused Bhajan Singh asked him for some old number, at which, PW8 replied that he was not having any old number.
PW8 Vikas Sharma has further deposed that while cleaning the shop, he got one chip from the dustbin and he told to accused Bhajan Singh that he was not aware as to whom the said chip was belonging and the said chip was given to accused Bhajan Singh.
According to cross examination of PW8 Vikas Sharma, the said person Devinder had disclosed his name and address, which he recorded in his diary. PW8 has produced the diary containing the name and address of accused Bhajan Singh @ Gulla, to whom, he had sold the mobile phone in question. PW8 Vikas Sharma has also proved the photocopy of the relevant entry pertaining to accused Bhajan Singh as Ex. PW8/DA and pertaining to Devinder Pal as Ex. PW8/DB.
According to PW20 HC Manvir Singh, on 14/07/2004, he was posted at PS Prashant Vihar and on that day, at the instance of IO, he recorded conversation of two mobile numbers i.e. 9899122565, which was used by the ransom caller and second mobile no. 9810119204 belonging to complainant. The conversation was recorded in TSeries cassette. The cassette was handed over to IO. It was sealed in a pullanda with the seal of "JP" and was seized vide memo Ex. PW20/A. In the cross examination, PW20 HC Manvir Singh has stated that they started recording the conversation between both the mobile numbers before the formal order dated 2607/2004, given by the Principal Secretary.
Learned defence counsel has further contended that the calls were intercepted SC No. 18/1 17 illegally without any order. Learned defence counsel has further contended that statement of PW16 Mohd. Yunus was recorded on 13/07/2004 in the same manner of conversation as if the call was also heard by the IO. Learned defence counsel has further contended that in fact, these illegally intercepted calls have been converted into supplementary statement of complainant, allegedly recorded U/s. 161 of Cr.P.C.
Learned defence counsel has further contended that mobile No. 9899122565 was in the name of one Mangal, resident of A297, Sangam Park, R.P. Bagh, Delhi,as per report obtained from the mobile operator Ex. PW32/DA. Learned defence counsel has further contended that according to PW20 HC Manvir Singh, on 14/07/2004, he intercepted and recorded the conversation even before the formal order dated 26/07/2004 given by the Principal Secretary. Even the said application has not been placed on record, allegedly moved by SI Jai Prakash for permission to intercept the calls. Investigation remained with PW32 ACP T.R. Mongia on 15/07/2004 to 31/07/2004 and till that time, permission was not received by him, whereas according to PW20 HC Manvir Singh, formal order dated 26/07/2004 was given by the Principal Secretary. If the order was given on 26/07/2004 and investigation remained with PW32 ACP T.R. Mongia till 31/07/2004, then it seems to be improbable that he was not knowing about the permission.
Learned defence counsel has further contended that according to cross of PW32 ACP T.R. Mongia, mobile no. 9899122565 was in the name of one Mangal, who has not been examined in any manner, whereas PW8 Vikas Sharma has stated that this chip was found by him in the mobile phone make Nokia 5110 bearing no. 9899122565, which was handed over to him by Devinder Pal, who did not turn up till 09/07/2004 and thereafter, he handed over the same chip to accused Bhajan Singh, so it is not known how this number came in possession of Devinder Pal from Mangal. It has not been brought on record that PW8 Vikas Sharma was known to accused Bhajan Singh, so, how he has identified accused Bhajan Singh for the first time in the Court. Despite the address of Devinder Pal in the diary, allegedly maintained by PW8 Vikas Sharma, he has also not been examined during investigation and before the Court to prove this fact that chip was being used by Devinder Pal, which PW8 Vikas Sharma handed over the same mobile phone no. 9899122565 to accused Bhajan Singh, so, prosecution has not been able to complete the chain of SC No. 18/1 18 circumstantial evidence against the accused persons in this respect.
On the other hand, learned Addl. PP has contended that calls were intercepted as per law and in this respect has relied upon notification of Ministry of Communications and Information Technology (Department of Telecommunications) Notification dated 1st March, 2007, wherein it has been held that:
"G.S.R. 193 (E)In exercise of the powers conferred by Section 7 of the Indian Telegraph Act, 1885 (13 of 1885), the Central Government hereby makes the following rules further to amend the Indian Telegraph Rules, 1951, namely:
1. (1) These Rules may be called the Indian Telegraph (Amendment) rules, 2007.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Indian Telegraph Rules, 1951, after rule 419, the following rules shall be substituted, namely: "419A(1) Directions for interception of any message or class of messages under subSection (2) of Section 5 of the Indian Telegraph Act, 1885 (hereinafter referred to as the said Act) shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India and by the Secretary to the State Government incharge of the Home Department in the case of a State Government. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorized by the Union Home Secretary or the State Home Secretary, as the case may be:
Provided that in emergent cases
(i) in remote areas, where obtaining of prior directions for interception of messages or class of messages is not feasible; or
(ii) for operational reasons, where obtaining of prior directions for interception of messages or class of messages is not feasible;
the required interception of any message or class of messages shall be carried out with the prior approval of the head or the second senior most officer of the authorized SC No. 18/1 19 security i.e. Law Enforcement Agency at the Central Level and the officers authorized in this behalf, not below the rank of Inspector General of Police, at the state level but the concerned competent authority shall be informed of such interceptions by the approving authority within three working days and that such interceptions shall be got confirmed by the concerned competent authority within a period of seven working days. If the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease and the same message or class of message shall not be intercepted thereafter without the prior approval of the Union Home Secretary or the State Home Secretary, as the case may be."
Learned Addl. PP has contended that interception was duly allowed by the order of then Principal Secretary (Home) dated 26/07/2004 Ex. PW17/A. It is further contended that according to the endorsement made on Ex. PW17/A by the Joint C.P., Northern Range, Delhi, copy of the order was sent to DCP, NorthWest vide letter No. 3628/P.Sec./N.R. Dated 28/07/2004 with reference to letter No. 1271,1274/ACP/Rohini dated 11/07/2004. This endorsement was made on 28/07/2004. Learned Addl. PP has further contended that in view of the same, letter for interception was dispatched on 11/07/2004 by the Joint C.P., Northern Range, who further sought permission for interception, which was allowed vide order dated 26/07/2004 Ex. PW17/A, hence, the contention of learned defence counsel that interception was carried out illegally or that no such interception was made and CD of interception recording is forged and fabricated, is not tenable in any manner.
Learned defence counsel has again contended that application given for interception dated 11/07/2004, on which basis, Joint C.P., Northern Range sought permission to intercept the calls has not been brought on record nor the record, which was to be maintained as per Ex. PW17/A under sub rule (7) of rule 419A of the Indian Telegraph Rules, 1951, has been produced. PW20 HC Manvir Singh has not deposed as to where he intercepted the calls and when. He has also not deposed as to at what time, the conversation was recorded in TSeries cassette. Voice sample of complainant has not been obtained nor had been sent to FSL, so, conversation as recorded between the complainant and accused is not proved in any manner.
Learned defence counsel has further contended that in his statement, PW16 SC No. 18/1 20 Mohd. Yunus has nowhere deposed that he received a call for ransom from the caller on 14/07/2004. According to deposition of PW16 Mohd. Yunus, after narrating the facts of 13/07/2004, he straightway deposed about the facts of 15/07/2004 and he has not been able to depose as to whether he had received any ransom call on 14/07/2004 also. If no call was received by PW16 Mohd. Yunus on 14/07/2004, then how the same could be intercepted and recorded, as deposed by PW20 HC Manvir Singh. There is no statement of PW16 Mohd. Yunus recorded on 14/07/2004 in respect of entire facts, which had taken place on that day, particularly as to whether he had received any ransom call on 14/07/2004, so, the cassette recorded on 14/07/2004 by PW20 HC Manvir Singh, as stated, is forged and fabricated.
On the other hand, learned APP has contended that according to seizure memo Ex. PW20/A, the recorded cassette, which was taken into possession, was containing conversation from 12/07/2004 to 14/07/2004, so, merely that PW20 HC Manvir Singh has not been able to depose the fact before the Court to the extent that he had recorded the conversation in the cassette from 12/07/2004 to 14/07/2004 is not affecting his testimony and he cannot be disbelieved in any manner.
Learned defence counsel has further contended that according to the photocopy of the diary Ex. PW8/DA, at page, showing the date of 01/02/2005, one entry is appearing dated 10/07/2004, showing old No. 9899122565 and further name of one Begen Singh/Golaa No. 320, B6, Sector17, Rohini, Delhi85. The entry is signed by one Balwinder Singh. Learned defence counsel has further contended that although the address written in the diary is of accused Bhajan Singh, but the same has been fabricated. It is further contended that diary is of 2005, whereas the entries are of 2004. If the record was to be maintained by PW8 Vikas Sharma, he could have used the diary of 2004. It was not a record, which was to be maintained for future appointments. The signatures appearing on this entry of one Balwinder Singh have not been tallied with the handwriting of accused Bhajan Singh. According to entry Ex. PW8/DB, name of one Devender Pal, son of Chander Pal, R/o village Darbhang, District Patna, has been mentioned, which is signed by Devender dated 09/07/2004. Figure of Rs. 1000/ is appearing on this entry and words 5110 with mobile No. 9899122565 has also been mentioned, but this Devender has also not been SC No. 18/1 21 examined.
Statement of PW8 Vikas Sharma was recorded U/s. 161 Cr.P.C. on 24/07/2004. At that time, he did not tell to the police that in respect of purchasing of mobile phone NO. 5110, having mobile No. 9899122565, he had made any entry in any diary nor had told that he also made entry in the diary regarding handing over of chip to accused Bhajan Singh @ Gulla, so, it seems that till that time, the diary was not existing. Before the Court, PW8 Vikas Sharma was examined on 01/07/2005. During his cross examination, the same was deferred and witness was directed to produce the book, in which, addresses of the sellers of the cell phones were recorded. So, on 19/10/2005, PW8 Vikas Sharma produced the photocopy of Ex. PW8/DA and Ex. PW8/DB. Hence, the possibility of preparing the diary at that time cannot be ruled out because witness had got sufficient time to create a diary in this respect. Learned defence counsel has further contended that because of this reason, as witness was examined in the year 2005, so, he was having diary of 2005, which he fabricated in connivance with the police officials, because he was asked to produce the diary before the Court.
It is further contended that this diary is not containing any previous entries before June,2004 or afterwards 11/07/2004. Learned defence counsel has further contended that entries starting from 13/06/2004 till 11/07/2004 including entry dated 10/07/2004 have not been verified as to whether actually these transactions had taken place at the shop of PW8 Vikas Sharma, so, this diary cannot be relied upon to the extent that mobile phone No. 9899122565 was given to accused Bhajan Singh by PW8 Vikas Sharma on 10/07/2004.
According to seizure memo Ex. PW16/F, on 18/07/2004, during investigation, accused Bhajan Singh got recovered one SIM card from his residential house's roof, from underneath a black colour wanter tank of Hutch H22000 7805673. It was put in a mobile phone and same had shown mobile No. 9899122565. The seizure memo has been prepared by the SHO and is witnessed by Mohd. Yunus and Constable Manvir Singh.
Mohd. Yunus is complainant. He has been examined as PW16. He has stated that on 18/07/2004, he had gone to PS. Accused persons were with the police. Accused Bhajan Singh led the police party to the roof of his house and took out a wrapped piece of papers. It was opened. It was found containing a SIM card (chip), which was again SC No. 18/1 22 wrapped in the said piece of paper and was sealed in a pullanda and was seized vide memo Ex. PW16/F. He does not remember the number of the said Sim card/chip. PW16 has identified the SIM card before the Court as Ex. P9 of Hutch Company having No. H2 2000 7805673.
Learned defence counsel has further contended that PW16 Mohd. Yunus has not been able to depose before the Court that before sealing and seizing the said Sim card of Hutch, it was inserted in a mobile phone and number of the same was revealed as 9899122565, so, the contents of seizure memo are contrary to the deposition of PW16 Mohd. Yunus. According to cross of PW16 Mohd. Yunus, on 18/04/2007, he met with the police officials near the divider of Sector 16 and 17, whereas in the examination in chief, he has stated that he had gone to PS, which is again contrary to each other, so, it is doubtful whether he had gone to PS or met the police officials on the way. According to statement of PW16 Mohd. Yunus, accused Bhajan Singh's house was situated at B7, H.No. 144, Pocket7, Sector17, Rohini, whereas according to seizure memo Ex. PW16/F, it is mentioned that accused Bhajan Singh, resident of H.No. B6/320, Sector17, Rohini, led the police party to his residential house, but the address of residential house is not mentioned, so, it is doubtful whether the SIM card was recovered from H. No. 320, B6, Sector17, Rohini or H.No. 144, B7, Sector17, Rohini.
Learned defence counsel has further contended that according to PW16 Mohd. Yunus, police did not call any resident of the area, so, there is no public witness to the recovery of SIM card on the pointing of accused Bhajan Singh, which also raises doubt about the recovery of SIM card on the pointing of accused Bhajan Singh.
Learned defence counsel has further contended that according to cross examination of PW16 Mohd. Yunus conducted on 23/10/2009, he did not visit the PS on 17/07/2004 or 18/07/2004. He does not remember at what time and where the police met him on 18/072004. He did not see the accused persons on 16/07/2004 and 18/07/2004, so if this was the position, then the fact that PW16 Mohd. Yunus accompanied the police party with the accused persons and during investigation, accused Bhajan Singh got recovered SIM card from his residential house, is entirely doubtful and the SIM card has been planted upon the accused.
SC No. 18/1 23
PW20 HC Manvir Singh is another witness to the seizure memo Ex. PW16/F. He has stated that on 18/07/2004, he again joined the investigation of this case with IO alongwith SI Sudama, HC Gajender and Constable Vivek. On that day, when they alongwith both accused Bhajan Singh and Joginder came out from the PS, on the gate of the PS, complainant Mohd. Yunus met them, who also joined the investigation. Thereafter, accused Bhajan Singh led them to H.No. B6/320, Sector17,Rohini and further led the police party to the roof of the said house and further got recovered one SIM card /Chip, which was wrapped in a paper, from beneath the water tank. It was checked and was found having mobile No. 9899122565. It was again wrapped in the same paper and was kept in a matchbox. Its pullanda was prepared, sealed with the seal of SS, and was seized vide memo Ex. PW16/F. Learned defence counsel has further contended that according to PW20 HC Manvir Singh, this SIM card of mobile No. 9899122565 was recovered on the pointing of accused Bhajan Singh from the roof of H.No. B6/320, Sector17, Rohini, whereas according to PW16 Mohd. Yunus, the SIM card was recovered from H.No. 144, B7, Sector17, Rohini, so, the recovery itself is doubtful.
According to the then SHO/retired ACP Sh. Tilak Raj Mongia, on 18/07/2004, accused Joginder Singh @ Jagga and Bhajan Singh @ Gulla led them to house of accused Bhajan Singh, where from the roof of third floor, accused Bhajan Singh took out SIM from a paper, which was found kept in between water tank and cemented slab and it was checked by inserting in a mobile and was found having mobile no. 9899122565 and he wrapped the SIM in the same paper, which was kept in a matchbox. It was sealed in a pullanda with the seal of SS and was seized vide memo Ex. PW16/F. Learned defence counsel has further contended that according to cross of PW32, there is a distance of about 320 paces between the house of accused Bhajan Singh and H.No. B7/144, Sector17, Rohini, which shows that both the house are separate, hence, there is no possibility of misunderstanding of house number in between PW16 Mohd. Yunus and PW20 HC Manvir Singh, who have deposed different house numbers regarding the recovery of SIM card from the roof of the same.
Learned defence counsel has further contended that according to cross of SC No. 18/1 24 PW32 retired ACP Sh. T.R Mongia, on 18/07/2004, they left the PS at about 11.35 a.m. Some of them were in uniform and some were in plain clothes. He does not remember, which of the police official was in uniform or which of the police official was in plain clothes, but he was in uniform. PW32 has further stated that public persons from the neighbouring houses were asked to join the proceedings, but none agreed, whereas according to PW16 Mohd. Yunus, no public person was asked to join the proceedings. SIM card has not been recovered from the exclusive possession of accused Bhajan Singh as the alleged roof was approachable by other residents of the flat also.
Learned defence counsel has further contended that accused Bhajan Singh was apprehended on 15/07/2004 and his disclosure statement was also recorded, so, why the recovery of the chip was not made before 18/07/2004. This could have been recovered on 15/07/2004 itself. It is not the case of the prosecution that after 15/07/2004, accused Bhajan Singh made any supplementary disclosure statement regarding the chip lying on the roof beneath the wanter tank and because of that, the chip was recovered on 18/07/2004, which shows that the same has been planted upon accused Bhajan Singh and witnesses regarding the recovery of chip on the pointing of accused Bhajan Singh are not inspiring any confidence.
Now, it has to be seen as to by whom this chip of mobile No. 9899122565 was used and when. Call details of this mobile number are Ex. PW15/A. The details have been obtained from 01/07/2004 to 15/07/2004. The ransom calls have been made from 11/07/2004 to 13/072004. According to the deposition of PW8 Vikas Sharma, on 09/07/2004, one Devinder Pal came to his shop to sell mobile phone make Nokia 5110, which was having this SIM card No. 9899122565. On the next day, he threw the chip i.e. 10/07/2004, but as accused Bhajan Singh contacted him, so, he searched the chip from dustbin and handed over the same to him. Under such circumstances, neither on 09/07/2004 nor on 10/07/2004, the chip could have been in use because the same was removed from the mobile phone and was thrown in the dustbin, but according to the call details Ex. PW15/A, even on 09/07/2004, 21 calls were made starting from 06.25 a.m. to 23.11 hours and on 10/07/2004, calls were made starting from 6.29 a.m. to 23:24 hours and also on 11/07/2004 from 5.29 p.m. to. 7.22 p.m. SC No. 18/1 25 According to the deposition of PW16 Mohd. Yunus, he received a call on his mobile No. 9810119204 from mobile No. 9899122565 at about 7.30 p.m. and this call detail is showing that at about 7.22 p.m., call was made on mobile No. 9810119204 from mobile No. 9899122565, duration of which was about 55 seconds.
According to call details of mobile Ex. PW15/A, on 12/07/2004 from 5.48 to 7.50 p.m., four calls were made on mobile No. 9810119204 belonging to complainant Mohd. Yunus and on 13/07/2004, four calls were made from 7.52 to 9.31 p.m. on the mobile phone number 9810119204 of the complainant. This call detail has been proved by PW15 Sh. Anuj Bhatia, who has not been cross examined in any manner about the genuineness of the call details. According to PW16 Mohd. Yunus, he received one call on 11/07/2004 and also two calls on 12/07/2004 and on 13/07/2004, he received four calls, which is corroborating with the CDR of mobile No. 9899122565 Ex. PW15/A. According to the CDR of mobile phone number 9810119204 of complainant Ex. PW13/A, complainant received a call on 11/07/204 at about 7.21 from mobile No. 9899122565. Similarly, on 12/07/2004, complainant received a call from mobile number of the caller at 5.47 p.m., 6.20 p.m., 7.40 p.m. and 7.49 p.m., which is corroborating with the CDR Ex. PW15/A of mobile No. 9899122565. Similarly, the call details of mobile phone of complainant are also showing having receiving the calls from mobile phone of the caller on 13/07/2004 at about 6.51, 7.40, 7.59 and 9.29. The CDR of the complainant has been proved by PW13 Sh. R.K. Singh. He has not been cross examined on behalf of accused Bhajan Singh in any manner.
Even after proving the calls made from mobile No. 9899122565 on the mobile phone of the complainant on 11/07/2004, 12/07/2004 and 13/07/2004, it has to be seen as to who had used this mobile No. 9899122565.
According to call details Ex. PW15/A, mobile No. 9899122565 was used since 10/07/2004 from 11.24 onwards on the mobile set having IMEI No. 3506043021848039. According to another seizure memo Ex. PW14/B, accused Joginder Singh @ Jagga got recovered two mobile phones, out of which one is having No. 9871155519 having IMEI No. 350604302184804. This seizure memo was prepared by the then SHO i.e. PW32 retired ACP Sh. Tilak Raj Mongia and is signed by one Navneet @ Boby, public witness, Mohd. Yunus and PW20 Ct Manvir Singh.
SC No. 18/1 26
Navneent has been examined as PW14. According to PW14, on 17/07/2004, on the request of police, he joined the proceedings. One person namely Mohd. Yunus also came there and he came to know that Mohd. Yunus was father of child. PW14 Navneet has further deposed about the recovery of bicycle Avon on the pointing of accused Joginder Singh, which was seized vide memo Ex. PW14/A. Basket was missing from the said cycle.
PW14 has further deposed that thereafter, accused Joginder @ Jagga alongwith other accused persons led them towards his house at first floor and took out two mobile phones from the bed. Both the mobiles were of Nokia, model 8310 and 3315. These mobile phones were kept in separate pullandas and were seized vide memo Ex. PW14/B. PW14 has also identified both the mobile phones before the Court as Ex. P1 and Ex. P2.
In the cross examination, PW14 Navneet has stated that house of accused Jagga was having two storeys ground and first floor. He has further stated that house of accused Joginder was Janta flat and accused was residing at the first floor. The parcels were prepared in the house of accused Joginder itself. All the seizure memos written in the room of accused Joginder. Apart from his signatures, no other public person signed the seizure memos in his presence.
PW16 Mohd. Yunus has stated that on 17/07/2004, accused Joginder led the police party to his house in Sector17, B7. He took the police party inside a room and produced two mobile phones make Nokia 3315 and 8310. These were sealed and seized vide memo Ex. PW14/B. According to the cross examination of PW16, on 17/07/2004, he went to PS on calling by the police officials at about 10 a.m. He remained with them till the evening. Witness Navneet i.e. PW14 was with them. In further cross examination, PW16 has stated that on 17/07/2004, police officials met him at divider road of Sector16 and 17, Rohini. The police officials were SHO, Mr. Mongia. He was alone in his car and again has stated in the cross examination conducted on behalf of accused Joginder Singh that he met with the IO on 17/07/2004 in the way at around noon time near the bus stand of Sector17, Rohini, while he was going to PS. He does not remember as to how long, he remained with the police on 17/07/2004. He did not visit the PS on 17/07/2004 or 18/07/2004. The police officials were on a TATA 407, when he met them on 17/07/2004. He was having Scorpio vehicle, when SC No. 18/1 27 he met with the police near bus stand of Sector17, Rohini. PW14 Navneet has also stated so that after recovery of the mobile phones, complainant Mohd. Yunus left the building in his Scorpio car. PW16 has further stated that house of accused Joginder was situated at first floor. Family members of accused Joginder were present in the flat. At that time, all the three accused persons were present in the room. The documents were prepared in the room of accused Joginder. The sealed pullandas were also prepared in the room.
According to PW20 HC Manvir Singh, on 17/07/2004, he again joined the investigation of this case and all the three accused persons led them to Sector17 Rohini. In the way, at Sector16 Rohini, PW14 Navneet joined the investigation. Complainant Mohd. Yunus i.e. PW16 also reached there and he also joined them. PW20 has further deposed that after recovery of bicycle, accused Joginder also got recovered two mobile phone make Nokia 8310 bearing mobile No. 9871155519 and Nokia 3315 bearing mobile No. 9871204450. These were sealed and seized vide memo Ex. PW14/B. Except giving suggestions to this witness that mobile phones have been planted with SIM numbers on accused Joginder, PW20 has not been cross examined in any manner.
PW32 retired ACP Sh. T.R. Mongia, who was working as SHO at that time, has deposed the same facts regarding recovery of mobile phones from the house of accused Joginder and in the cross examination, this witness has also not been cross examined in any manner regarding recovery of two mobile phones and SIM from the possession of accused Joginder on his pointing, from his house, so, all these witnesses have corroborated about the recovery of two mobile handsets from the possession of accused Joginder Singh.
The call details of mobile No. 9871155519, which was recovered from the possession of accused Joginder are Ex. PW13/B. The call details are from 01/07/2004 till 15/07/2004 and throughout, it was having IMEI No. 350604302184800, whereas the IMEI number of the handset, in which, SIM card of 9899122565 was used, was having IMEI No. 3506043021848039. so, the last three digits of this IMEI number are not tallying with each other. According to call details Ex. PW15/A, in this IMEI number having last digit 8039, Sim card of 9899122565 was used from 10/07/2004 at 23.24 p.m. till 13/07/2004 at 21.31 p.m., whereas mobile set, which was recovered from the possession of accused Joginder, call details of which are Ex. PW13/B, was also used on 10/07/2004 from 23.01 till SC No. 18/1 28 12/07/2004 to 10.40 a.m., so, it seems to be improbable that in the said handset, both mobile SIM No. 9871155519 and 9899122565 were used time by time.
Call details of another mobile No. 9871204450 from 01/07/2004 to 15/07/2004 are Ex. PW13/C, from which, repeated calls were made on 11/07/2004 at phone no. 20089749. According to the case of the prosecution, this mobile NO. 20089749 belongs to accused Bhajan Singh and from both mobile phones recovered from accused Joginder, calls were made on the mobile phone of accused Bhajan Singh on 11/07/2004 from 6.00 p.m. onwards till 06.50 as per Ex. PW13/B and as per Ex. PW13/C, calls were made on 11/072004 from 11.06 to 12.19 and from 6.00 p.m. to 23.40 and on 12/07/2004 from 12.11 a.m. to 20.59 p.m. On 13/07/2004 at 15.11 p.m. and also from 20.03 p.m. to 22.49 p.m. According to PW16 Mohd. Yunus, he received calls from the caller from 11/07/2004 till 13/07/2004, which has been corroborating with the call details of PW16 Mohd. Yunus and another mobile No. 9899122565, from which, ransom calls were made. According to cross of PW16 Mohd. Yunus, on 11/07/2004, he had received a call at about 7.30 p.m. and had conversation with the caller for 23 minutes. Voluntarily, he has stated that police had recorded the calls. He was in touch with the police officials during the said period. According to PW20 HC Manvir Singh, he recorded the conversation, while sitting in the rest room of SHO. HC Gajender and Ct Vivek were present at the time of recording the conversation. He recorded conversation from 12/07/2004 to 14/07/2004. He alongwith HC Gajender and Ct Vivek was deputed for recording the conversation. Statements of HC Gajender and Constable Vivek were not recorded in this respect. Cassette player was brought by the IO from the market. He handed over the cassette player and the cassette to the IO. IO did not seized the cassette player in his presence.
According to PW23 SI R. Sriniwasan, on 06/09/2004, he was posted at PS Mangol Puri, Delhi. On that day, as per instructions of SHO/IO Inspector K.G. Tyagi, he alongwith HC Omender reached at Tis Hazari Courts, where IO met them and three accused persons namely Bhajan Singh, Joginder and Ashok came from the judicial custody. IO moved an application before the Court to obtain permission for recording the voice of accused persons.
PW23 SI R. Sriniwasan has further deposed that after obtaining permission SC No. 18/1 29 from the Court, IO got recorded the voice of all the three accused persons in separate cassettes. The cassette, in which, voice of accused Bhajan Singh was recorded, was given serial no. 1a. The cassette , in which, voice of accused Joginder was recorded, was given serial no. 2a and in the same cassette, voice of accused Ashok was also recorded and part of that voice was given serial number 2b. All the voices were recorded in Tseries blank cassette. The version of accused Joginder was recorded on A side of the cassette and that of accused Ashok was recorded on the B side. The sample voice of the accused persons were recorded as per version of the ransom calls, which were got prepared by the IO in the statement of the complainant.
PW23 SI R. Sriniwasan has further deposed that both the cassettes were sealed in a cloth parcel with the seal of "KGT" and all the accused persons signed the cloth parcel. IO seized the cassette vide memo Ex. PW23/A. Accused persons had also signed the memo. All the accused persons were sent to J.C. Case property was deposited with the MHC(M). PW23 has aslso identified the audio cassettes as A1 and A2.
PW25 HC Ominder has also been examined. He has also deposed the same facts as of PW23 SI R. Sriniwasan and has identified the cassettes before the Court as A1 and A2.
In the cross examination, PW25 HC Ominder has stated that he is not aware whether the IO had obtained written permission for sample voice recording, which were recorded outside the court room of the then Ld. MM. It took them 11¼ hours to obtain the voice samples of the accused persons.
PW29 Inspector K.G. Tyagi has stated that on 01/08/2004, he was posted at PS Mangol Puri as SHO and investigation of this case was handed over to him as per directions of senior officers. During investigation, he obtained judicial custody remand of accused persons. On 06/09/2004, he moved an application before the Court for taking voice samples of the accused persons, carbon copy of the application is Ex. PW29/A. After seeking permission from the concerned Court, he obtained voice samples of accused persons in two audio cassettes marked as A1 and A2. Sample voice of accused Bhajan Singh was recorded in cassette Mark A1 and of accused Joginder and Ashok were recorded in cassette Mark A2. Both the cassettes were sealed in a pullanda with the seal of "KGT" and was signed by him SC No. 18/1 30 and the accused persons. These were seized vide memo Ex. PW23/A. PW29 has further deposed that he obtained permission for sending the case property i.e. voice samples of accused persons to CFSL, Delhi, vide his application Ex. PW29/B. He has further deposed that he had also sent the case property i.e. voice samples of accused persons and another cassette, in which, the voice of accused persons were recorded at the time of making ransom calls, to CFSL, Chandigarh, but he does not remember as to who had taken the same to CFSL, Chandigarh. He has also identified the said cassettes as A1 and A2.
In the cross examination, PW29 Inspector K.G. Tyagi has stated that accused persons had given their voice samples with their own choice. PW29 has also stated in the cross examination that he did not place on record order of the learned MM, vide which, the Ld. MM satisfied herself regarding giving of consent by the accused persons for their voice samples and has voluntarily stated that he has mentioned this fact in the case diary as well as in the seizure memo. He has further stated that it is not mentioned in the application Ex. PW29/A that accused persons wanted to give their consent willfully for their voice samples. He had filed the transcript, which he had made the accused persons to read, while recording their voice sample on the record.
Learned defence counsel has contended that firstly, prosecution has not been able to prove that any voice sample was given by the accused persons voluntarily. Secondly, no order of the learned MM has been placed on record in this respect. Thirdly, according to the deposition of PW29 Inspector K.G. Tyagi, at first instance, cassettes were sent to CFSL, Delhi, whereas again these were sent to CFSL, Chandigarh and it is not explained as to whether the exhibits were examined at CFSL, Delhi, or were not examined or whether the exhibits were returned with certain remarks by the CFSL. Learned defence counsel has further contended that there seems to be possibility that the voice was not tallying with the intercepted calls recorded as per the witness, so, these were returned back and were further sent to CFSL, Chandigarh.
Learned defence counsel has further contended that PW28 HC Om Prakash has nowhere stated as to when recorded cassette of ransom call sealed with the seal of "JP" was deposited with him and when two audio cassettes containing sample voice of the accused SC No. 18/1 31 persons mark A1 and A2 were deposited with him. Even he has not deposed about the fact that prior to sending the cassettes to CFSL, Chandigarh, the cassettes were also sent to CFSL, Delhi, which shows that cassettes A1 and A2 were never deposited with this MHC(M).
According to PW31 ASI Hari Singh, on 06/09/2004, he was posted as HC at PS Mangol Puri and was working as MHC(M). On that day, Inspector K.G. Tyagi handed over two sealed pullandas sealed with the seal of "KGT" containing two cassettes. He deposited the same in the malkhana vide serial No. 5776 in register No. 19, photocopy of which is Ex. PW31/A. PW31 has further deposed that on 29/11/2004, one sealed pullanda containing two voice recorded cassettes were sent to CFSL, Chandigarh through constable Baljit Singh vide RC No. 333/21/04 and he made entry in this respect in register No. 19 against serial No. 5776, photocopy of which is Ex. PW31/B. Copy of RC is Ex. PW31/C. On 04/03/2005, the aforesaid pullandas containing two cassettes and CFSL result were received from CFSL, Chandigarh through HC Omender and entry was made in this respect in register No. 19, photocopy of which is Ex.PW31/D, by one HC Durgesh, the then MHC(M). PW31 has identified the writing and signatures of HC Durgesh. According to PW29 Inspector K.G. Tyagi, sample voices of the accused persons were taken on 06/09/2004 after taking permission from the concerned Court.
PW25 HC Omender Kumar has nowhere deposed that he had collected the result from CFSL, Chandigarh and had deposited the same in the malkhana, as deposed by PW31 ASI Hari Singh. Constable Baljeet has not been examined to the effect that he had deposited two sealed parcels containing sample voice cassettes at CFSL, Chandigarh. According to Ex. PW28/A, on 28/11/2004, the cassette containing the intercepted call details was sent to CFSL, Chandigarh through constable Baljit Singh. It is further contended that transcription, on the basis of which, the sample voices of accused persons were taken, has not been placed on record nor the prosecution has been able to prove that learned Metropolitan Magistrate had given any permission to obtain the sample voices of the accused persons. So, it seems to be doubtful whether such cassettes containing sample voices of accused persons were prepared after the permission of the Court or were SC No. 18/1 32 fabricated by the police officials at their own, so, neither the cassettes nor the result of FSL can be relied upon in this respect.
It is further contended that according to the deposition of PW32 retired ACP T.R. Mongia, on 31/07/2004, as per the directions of Joint CP, the investigation of this case was transferred to SHO Mangol Puri. Learned defence counsel has further contended that even if it was the position, then the case property deposited in the malkhana of PS Prashant Vihar should have been transferred to PS Mangol Puri.
According to PW21 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi, on 29/11/2004, he was posted as Junior Scientific Officer (Physics), at CFSL, Chandigarh, and on that day, two sealed parcels were received at CFSL, Chandigarh. The seals were intact and were tallying with the specimen seal. Parcel No. 1 was found containing one audio cassette, which was found containing recorded conversation on side 'A' marked as Ex. 1. It was found containing call 1, which was marked as Q1. Call No.2 was marked as Q2. Call No. 3, 4 and 5 were marked as Q3 and call No.6 was marked as Q4. So, there were total six calls, which were allegedly intercepted and recorded. Parcel No. 2, having seal of "KGT" was found containing two normal size audio cassettes, which were marked as Ex. 2 and Ex. 3. Ex. 2 was one normal size audio cassette of Tseries make, containing recorded speech on side 'A' and 'B'. The speaker of the speech sample recorded on side 'A' was marked as S1 i.e. of accused Joginder Singh and the speaker of the speech sample recorded in side 'B' was marked as Ex. S2 i.e. of accused Ashok Kumar. Ex. 3 was one normal size audio cassette of Tseries make, containing recorded speech on side 'A' and 'B'. The speaker of the speech sample recorded on side 'A' i.e. of accused Bhajan Singh, was marked as S3.
According to PW21, the auditory analysis of recorded speech samples of speakers marked Ex. Q1, Q2, Q3, Q4, S1, S2 and S3 and subsequent acoustic analysis of speech samples by using computerized speech lab (CSL), revealed that the voice exhibits of speaker marked Ex. Q1, Q3 and Q4 were similar to the voice exhibits of speaker marked Ex. S3 i.e. of accused Bhajan Singh and the voice exhibits of speaker marked as Q2 were similar to the voice exhibits of speaker marked as Ex. S2 i.e. of accused Ashok Kumar. After examination, the parcels containing the exhibits/remnants of the exhibits were resealed SC No. 18/1 33 and he prepared his report Ex. PW21/A. PW21 Dr. C.P. Singh has also identified the intercepted calls recorded in the cassette as Ex. P12 and sample voice cassettes as Ex. A1 and Ex. A2. PW21 has not been cross examined on any material aspect on behalf of either of the accused persons.
Learned defence counsel has further contended that prosecution has also not been able to bring and prove on record that the then learned Metropolitan Magistrate had allowed the application for taking voice sample of accused persons and whether any notice was issued to the accused persons in this respect prior to allowing the taking of their voice sample by the IO, so, this whole exercise of obtaining sample voice of the accused persons, sending the same to CFSL, Chandigarh, and further obtaining the report that calls were made by accused Bhajan Singh and Ashok Kumar, is illegal and has not been connected and proved in any manner against the accused persons.
In view of above discussion, the contentions of learned defence counsel are forceful. The testimony of PW16 Mohd. Yunus inspired confidence to the extent that he received ransom calls on 11/07/2004 to 13/07/2004 but the intercepted calls recorded by the police officials are doubtful. The prosecution has relied upon notification of Ministry of Communications and Information Technology (Department of Telecommunications) dated 01/03/2007, according to which, in few of the emergent cases, the head or the second senior most officer of the authorized security not below the rank of Inspector General of Police at the state level can give approval for interception of the messages subject to the condition that concerned authority shall be informed within three days and shall be got confirmed by the competent authority within a period of seven days.
In this case, according to the case of the prosecution, they started intercepting the calls during that period. An application was given on 11/07/2004 to the Joint Commissioner of Police, Northern Range, for seeking permission, but he had not given any approval of the same. No such document has been brought on record in this respect and further the permission was received on 26/07/2004, vide which, the interception was allowed, but the first part of prior approval of the senior most officer of the authorized security i.e. Joint Commissioner of Police, Northern Range, has not been placed on record and has not been proved in any manner, so, the interception seems to be illegal. SC No. 18/1 34
The prosecution has also not been able to prove beyond reasonable doubts that SIM card of mobile no. 9899122565 was obtained by accused Bhajan Singh and was used by him, while making ransom calls. PW8 Vikas Sharma, who had provided the SIM card to accused Bhajan Singh is not inspiring any confidence. The record, which he has produced in this respect, seems to be doubtful and further record has not been verified in any manner, so, the same cannot be relied upon and according to the witnesses, the above SIM card was used in mobile handset, which was recovered from the possession of accused Joginder Singh. According to the depositions of witnesses, two mobile sets were recovered from the house of accused Joginder Singh on his pointing, having mobile No. 9871155519 and 987120445. During investigation, no document has been collected to verify whether both these numbers were belonging to accused Joginder Singh. The recovery of handsets from the possession of accused Joginder Singh also seems to be doubtful as the same has been recovered on 18/07/2004, whereas accused Joginder Singh was arrested on 15/07/2004. He had made disclosure statement on the same day and the accused persons had also got recovered the dead body, then what prevented the investigating agency not to conduct the search of accused Joginder Singh in respect of evidence related to the ransom calls.
The witnesses examined regarding obtaining of specimen voices of the accused persons are also not inspiring any confidence as the prosecution has not been able to prove the permission of learned Metropolitan Magistrate to obtain the sample voices of the accused persons. The sample voices were obtained on the basis of transcription. The said transcription has also not been placed on record. So, it is also not proved that the accused persons had given their specimen voices voluntarily and willfully.
None of the Nodal officer examined in this case to prove the CDR has been able to produce any certificate issued U/s. 65B of Indian Evidence Act for the authenticity of the CDR, hence, the CDRs brought on record and proved by the Nodal officers cannot be relied upon in absence of certificate issued U/s. 65B of Indian Evidence Act.
In view of above, although the prosecution has been able to prove that PW16 Mohd. Yunus received ransom calls, but is not proved beyond reasonable doubts the obtaining and using of SIM No. 9899122565 by the accused persons in the mobile handset recovered from the possession of accused Joginder Singh beyond reasonable doubts. SC No. 18/1 35 Accordingly, prosecution has not been able to prove offence U/s. 364A read with 120 B of IPC against all the three accused persons, for which, they are acquitted. Finding qua offences U/s. 302/120B of IPC and U/s. 201/120B of IPC:
According to PW16 Mohd. Yunus, the complainant, he informed about the fact of receiving the call in relation to his missing son to the police i.e. SI Jai Prakash, who had recorded his statement Ex. PW16/A. He had also given the description of his son, who was wearing checkdar shirt, cream colour kurta, cream colour pajama and light blue colour Relaxo chappal. He had also told to the police that his son Wasim was wearing a black thread with a taveez, having photo of Ajmer Sharif and a slip bearing his name and the name of Wasim in Urdu in his neck. Wasim was also wearing another taveez in black thread. The bicycle, which Wasim was carrying, was of purple colour with address of their house engraved on its handle. The cycle was of Avon, having two small supporting wheels and backseat. There was a small basket affixed with the handle of the bicycle. He had also given the photograph Ex. P1 to the police.
According to PW30 Inspector Jai Prakash, on 11/07/2004, he was posted as SI and was incharge of PP Sector16, Rohini of PS Prashant Vihar. On that day, he alongwith Ct Harjeet was patrolling in the area of district park, Sector16, Rohini. At about 7.45 p.m., one Mohd Yunus i.e. PW16 met them. He recorded his statement Ex. PW16/A and prepared rukka on the same Ex. PW30/A. It was sent to PS through Ct Harjeet, who got registered the case and came back at the spot. Constable Harjeet handed over to him carbon copy of FIR Ex. PW6/A. Thereafter, they alongwith the complainant searched his son, but he could not be traced out.
PW6 HC Bharat Lal has stated that on 11/07/2004, while he was working as DO at PS Prashant Vihar, on receipt of rukka through Constable Harjeet, sent by PW30 SI Jai Prakash, he had recorded FIR of this case. He had also made corresponding entry in DD register at serial No. 27A and had made endorsement on the original tehrir itself to this effect. The special report of the case was sent to concerned MM and senior officials through Constable Harjeet. Carbon copy of FIR is Ex. PW6/A and his endorsement is Ex. PW6/B. PW19 HC Harjeet Singh has also deposed the same facts to the effect that he took rukka to PS and got registered the case. Thereafter, he came back to the spot and SC No. 18/1 36 handed over the copy of FIR and rukka to the IO and they searched the child, but he could not be traced out.
According to PW32 retired ACP T.R. Mongia, on 15/07/2004, he took up the investigation of the present case. The call details of mobile phones were collected and were analysed. Thereafter, raiding party comprising of himself , SI Jai Prakash, Ct Manbir Singh, SI Sudama, SI Daya Kishan and other staff was constituted. Thereafter, they reached at B6, 320, Sector17, Rohini, where accused Bhajan Singh was found present. He was apprehended. He was arrested vide memo Ex. PW20/C and his personal search was conducted vide memo Ex. PW20/D. Accused Bhajan Singh also made disclosure statement Ex. PW20/B, who disclosed that after committing murder of the child Mohd. Wasim with coaccused Joginder and Ashok Kumar, the dead body was thrown by them in Nala, near Jagatpur Ring Road, Wazirpur. Thereafter, they reached at the house of accused Joginder and Ashok at B7/144, Sector17, Rohini, Delhi. Both were found present there. They were also apprehended at the instance of accused Bhajan Singh and were arrested vide memos Ex. PW20/G and Ex PW20/H. Their personal searches were conducted vide memos Ex. PW20/I and Ex. PW20/J. Both the accused also made disclosure statements Ex. PW20/E and Ex. PW20/F. PW32 has further deposed that thereafter, all the three accused persons led them to Nala Jagatpur, opposite CNG Petrol Pump, in the area of Timarpur and pointed out the place, where they had thrown the dead body of the deceased. Crime team and divers were called. Divers had searched the ganda nala about 500 meters towards east side and one Bori (sack) was searched by the divers. It was taken out. The said Bori was found tied with Sutli and on opening the same, it was found containing another Bori. The said bori was also opened and it was found containing dead body of the child, two bricks and one brick having ¾ portion.
PW32 has further deposed that complainant Mohd. Yunus i.e. PW16 was also informed to reach there, who identified the dead body of Mohd. Wasim. Crime team inspected the spot. Photographs were taken. Crime team gave his report Ex. PW11/A, which was handed over to him by SI Satya Prakash.
PW32 has further deposed that thereafter, jute bags (bori), bricks and Sutli SC No. 18/1 37 were sealed in a plastic bag with the seal of "TRM" and dead body and the said parcel were taken into possession vide memo Ex. PW16/B, which was also signed by the accused persons.
PW32 retired ACP T. R. Mongia has further deposed that thereafter, dead body was removed to the mortuary of BJRM hospital through Constable Manbir. PW32 prepared inquest papers. He also reached at the mortuary and recorded statements of Mohd. Yunus and Julfikar regarding identification of dead body Ex. PW1/A. Thereafter, he got conducted the postmortem vide report Ex. PE3/A and dead body was handed over to Mohd. Yunus vide memo Ex. PW16/D. At the time of postmortem, he also got conducted photographs through a private photographer Anil Sharma, which are Ex. PW5/A1 to Ex. PW5/A13. The inquest papers are Ex. PW32/A. PW32 has further deposed that Constable Manbir Singh handed over the exhibits, which were given to him by the doctor. Same were seized vide memo Ex. PW20/A. Sample seal of doctor of BJRM hospital was also seized vide memo Ex. PW20/A. At the time of recovery of dead body, it was found tied with the string all over.
According to PW1 Julfikar Ali, cousin of PW16 Mohd. Yunus, on 15/07/2004, he was present at the house of Mohd. Yunus, when Mohd. Yunus made a call to his house in between 1.00 to 2.00 p.m. that three persons were arrested, who had disclosed about the dead body of Wasim at Jagat Pur drain. Thereafter, Yunus came to his house. Thereafter, he alongwith Yunus and some other people reached at Ganda Nala, Jagatpur. Police and public were present there. Dog squad was also there. Photographer was also present there. All the three accused persons were also present there. The divers fetched out the dead body of Wasim from Ganda Nala, which was in a gunny bag. The bag was opened. Body was taken out. He identified the dead body as of Wasim. It was taken to BJRM hospital. Thereafter, he again identified the dead body. His statement was recorded Ex. PW1/A. Before the dead body was removed from near the Ganda Nala, its photographs were taken. He had also signed the inquest papers. Photograph Ex. P1 is of son of complainant Yunus.
In the cross examination, PW1 Julfikar Ali has stated that gunny bag was opened by the divers in his presence. The divers had taken out the body and bricks from the gunny bag. Accused persons were standing near the dead body and their photographs were SC No. 18/1 38 taken.
PW5 Anil Sharma has stated that he was running a photo studio in the name of Nutan Studios. On 15/07/2004, as per directions of SHO Prashant Vihar, he reached at BJRM hospital and in the mortuary, postmortem of one young boy was being conducted. During postmortem examination, he took 14 photographs of the dead body from different angles. Thereafter, prints were got prepared and he handed over the prints and negatives to the IO. Prints are Ex. PW5/A1 to A13. PW5 has not been cross examined in any manner, so, he has corroborated about taking of photographs at the time of postmortem, as deposed by PW32 retired ACP T.R. Mongia.
PW7 Abdul Sattar was working as private diver. On 15/07/2004, he was sitting on the Wazirabad bridge. He received a telephone call from the police to reach at Canal near bypass, near Outer Ring Road. He reached there at about 11 a.m. All the three accused persons were also present there. They pointed out the place, where they had thrown the dead body by putting the same in a gunny bag. On the pointing of accused persons, he started diving in the canal. He continued diving for two and a half to three hours. At a distance of about half kilometer, he saw a gunny bag, upper portion of which was visible above water. He pulled out the gunny bag. One or two boys with the help of accused Bhajan Singh opened that gunny bag. Another gunny bag was found in the first gunny bag. Dead body of one child was found in the inner gunny bag. Two bricks and one broken brick were also recovered from the inner gunny bag. The dead body was found tied with a cotton cord. The dead body and the gunny bags were handed over to the police. His signatures were obtained by the police. Thereafter, he left.
Nothing came out from the cross examination of this witness to disbelieve his testimony regarding recovery of dead body on the pointing of all the three accused persons. He has corroborated with PW1 Julfikar Ali and also with PW32 retired ACP T.R. Mongia in this respect.
PW11 is Inspector Satya Prakash Vashisht. He has stated that on 15/07/2004, he was working as incharge, crime team, NorthWest district. On that day, he was called by SHO, Prashant Vihar. Accordingly, he reached at the spot i.e. near Ganda Nala, village Jagatpur, opposite CNG petrol pump, outer Ring Road, where he met with SHO T.R. SC No. 18/1 39 Mongia alongwith other police officials and all the three accused persons and saw a jute bag floating in the ganda nala. Crime team photographer had taken photographs. Jute bag was taken out by the divers. It was found containing the dead body. Again, photographs were taken after opening the jute bag. He prepared his report Ex. PW11/A in this respect and handed over the same to the IO.
According to PW16 Mohd. Yunus, on 15/07/2004, he again joined the investigation and met with the police on the road dividing between Sector17, Rohini. There were three persons with the police. His friend Julfikar i.e. PW1 was with him at that time. Accused persons led them to Ganda Nala, opposite Gopal Pur, opposite CNG Petrol Pump and on the pointing of accused persons, police arranged a diver namely Abdul Sattar i.e. PW7. All the three accused persons pointed out a bori floating in the Ganda Nala, which was taken out by the diver. It was got photographed. The said bori was opened. It was found containing another bori. The said bori was opened and dead body of his son Wasim Ahmed was taken out, which was found tied with a rope. He identified the same. Three bricks were also recovered from the bori. The dead body was wrapped in a cloth sheet. The abovesaid two boris, bricks, rope (sutli) were placed in plastic katta and were seized vide memo Ex. PW16/B. He had identified the dead body of his son vide statement Ex. PW16/C and had also signed the death report. Postmortem of the dead body was got conducted in BJRM hospital. Thereafter, it was handed over to him vide Ex. PW16/D. In the cross examination, PW16 Mohd. Yunus has stated that Julfikar had come from the village on 11/07/2004, but left for his village on the same day. Later on, he came again on 12/07/2004 and remained with him. On 15/07/2004, when police official told him, then he returned to his house and picked up PW1 Julfikar and other known persons. So, deposition of PW16 Mohd. Yunus is also corroborating with PW1 Julfikar in this respect to the extent that he alongwith PW1 joined the police and on the pointing of accused persons, dead body was recovered.
PW20 HC Manvir Singh has stated that on 15/07/2004, he joined investigation of this case. At about 8.30 am., he alongwith SI Jai Prakash, SI Daya Kishan, HC Gajender, SI Sudama Sharma and IO in government vehicle went to Sector17, Flat No. B6/320, in search of accused persons. It was third floor. They reached there and one person met them, SC No. 18/1 40 who disclosed his name as Bhajan Singh, who was interrogated and he further disclosed the name of other associates as Joginder and Ashok. Accused Bhajan Singh was arrested vide memo Ex. PW20/C. His personal search was conducted vide memo Ex. PW20/D. He led the police party to H.No. B7/144, First Floor, Sector17, Rohini, where accused Joginder and Ashok were already present. Disclosure statement of accused Joginder is Ex. PW20/E. Accused Joginder disclosed that he could get recover the dead body from Ganda Nala Jagatpur and other articles. Similarly, accused Ashok also made disclosure statement to this effect, which was recorded as Ex. PW20/F. Both accused Joginder and Ashok were arrested vide memos Ex. PW20/G and Ex. PW20/H. Their personal searches were conducted vide memos Ex. PW20/I and Ex. PW20/J. PW20 HC Manvir Singh has further deposed that thereafter, all the three accused persons led the police party to Ganda Nala village Jagatpur, opposite CNG petrol Pump, ring road, and pointed out the same, where, they had thrown the dead body. Complainant Mohd. Yunus i.e PW16 also reached there and diver was called. Crime team was also called. Dead body was searched. It was recovered from a distance of half kilometer from the place of pointing out. One bori was seen floating in the nala and on the pointing of all the three accused persons, the same was taken out. Prior to that, photographs of the floating bori were taken. The bori was found containing another bori, which was found containing the dead body of child Wasim. It was found tied with Sutli. The bori was also found containing two bricks and one ¾ brick. The dead body was identified by father Mohd. Yunus. Thereafter, the boris, bricks and Sutli etc were sealed in a pullanda with the seal of "TRM" and were taken into possession vide memo Ex. PW16/B. The dead body was removed to mortuary of BJRM hospital by him. SHO Inspector T.R. Mongia also reached there with the staff. Postmortem on the dead body was got conducted. After postmortem, dead body was handed over to the relatives.
PW20 HC Manvir Singh has further deposed that after postmortem, doctor handed over two parcels to him. One was containing clothes of deceased, while the other was an envelope, containing Sulti alongwith sample seal of the hospital, which he handed over to the IO, who seized the same vide memo Ex. PW20/K. Nothing came out from the cross examination of PW20 HC Manvir Singh to disbelieve his testimony in this respect. SC No. 18/1 41 The minor contradiction as to whether Mohd. Yunus reached at the spot directly or had joined the police party prior to the recovery of dead body, is not affecting the deposition of the witness to the extent that the dead body was recovered from Ganda Nala through one diver Abdul Sattar, which was found containing in a bori and was sent to the mortuary.
Photographs were also taken at that time, which have been proved by PW24 Constable Dalbir Ssigh, who has stated that on 15/07/2004, he was posted in Mobile Crime Team. On that day, he accompanied SI Satya Prakash, incharge crime team and his staff to the spot i.e. village Jagatpur near Ganda Nala and had taken 13 photographs at the instance of IO from different angles. After developing the photographs, he handed over the negatives and photographs to the IO. The photographs are Ex. PW24/A1 to A13 and negatives thereof are Ex. PW24/B1 to B13. Nothing came out from his cross examination also to disbelieve his testimony regarding recovery of the dead body from Ganda Nala through diver Abdul Sattar, which was found in a bori and the place of recovery of dead body was pointed out by all the three accused persons.
PW30 Inspector Jai Prakash has also deposed the same facts regarding recovery of dead body on the pointing of all the three accused persons and regarding their arrest on 15/07/2004.
PW28 HC Om Prakash was working as MHC(M) at PS Prashant Vihar. On 15/07/2004, PW30 SI Jai Prakash deposited with him personal search articles of accused Bhajan Singh @ Gulla, one plastic katta sealed with the seal of TRM, one mobile phone sealed with the seal of JP, one plastic polythene containing clothes of deceased sealed with the seal of MS BJRM Hospital, one sealed parcel containing rope sealed with the seal of MS BJRM Hospital and sample seal. PW28 has also not been cross examined in any manner, so, he has also corroborated regarding the deposit of case property, which was taken into possession on 15/07/2004 by the IO. So, prosecution has been able to prove beyond reasonable doubts that all the three accused persons pointed out the place, where they had thrown the dead body and it was recovered on their pointing from Ganda Nala through diver Abdul Sattar, which was found in a bori and was sent for postmortem.
PW32 retired ACP T.R. Mongia has further deposed that thereafter, all the three accused persons led the police party to the place, from where, they had kidnapped the SC No. 18/1 42 deceased child i.e. park of Sector17, Rohini, and accused Joginder Singh pointed out the same vide memo Ex. PW12/A. Thereafter, accused Bhajan Singh led the police party to his house i.e. B6/320, Sector17, Rohini and got recovered one mobile phone make Motorola bearing No. 20089749, which was seized vide memo Ex. PW20/M after sealing the same with the seal of "JP. Thereafter, all the three accused persons led the police party to H.No. B7/144, Sector17, Rohini i.e. house of accused Joginder Singh, where they had killed the deceased child. Pointing out memo was prepared Ex. PW20/L. He had also prepared site plan of the said place Ex. PW32/B. PW32 has further deposed that thereafter, all the three accused persons led them to B6/210, Sector17, Rohini, and pointed out towards a van standing outside the said house as the same, in which, they had taken the dead body of deceased child. The owner of the said Maruti van No. DL2CK0823 namely V. Shashi came out of the house and told that accused Joginder Singh @ Jagga had taken the Maruti Van from him on 11/07/2004 in the evening. He had also handed over the key and documents of Maruti Van to him. The Maruti van and bunch of four keys were taken into possession vide memo Ex. PW10/A. Photocopies of the documents were also taken into possession vide memo Ex. PW10/B. Thereafter,they came back with the accused persons and case property was brought to the PS. PW32 has further deposed that at the time of recovery of dead body, he also prepared rough site plan of the place of recovery Ex. PW32/B. PW10 V. Shashi has stated that he is owner of Maruti Van No DL2CK0823. On 11/07/2004, he was present at his house. At about 10.30 or 10.45 p.m. accused Joginder Singh @ Jagga came to him and requested to take his vehicle as he wanted to go to railway station for picking his mother. So, he handed over the Maruti Van to him. While giving the Maruti van to him, he told him that he was going to sleep, so, he should not disturb him in the night and he should park the vehicle and keep the keys of the car with him and to give the keys in the morning only.
PW10 has further deposed that at about 5.45 a.m., when he got up, he saw his Maruti van parked in front of his house cum shop. After about 15 minutes, accused Joginder came and handed over the keys to him.
SC No. 18/1 43
PW10 has further deposed that on 15/07/2004, IO alongwith accused Joginder @ Jagga and other two accused persons Bhajan Singh and Ashok @ Bobby came to his house and they identified his van before the police, in his presence. Thereafter, he was informed by the police that his van was used by the accused persons for throwing the dead body of the child, who had been killed. His vehicle was seized by the police vide memo Ex. PW10/A. He handed over the ownership papers of the vehicle to the police, which were seized vide memo Ex. PW10/B. He has identified his vehicle before the Court as Ex. P1. In the cross examination, PW10 has stated that vehicle was identified by the accused persons outside his house cum shop.
PW20 HC Manvir Singh has also deposed the same facts regarding pointing out of the place by the accused persons, from where the child was kidnapped and further that the accused persons led the police party to H.No. B7/144, Sector17, Rohini, where another pointing out memo of place of murder was prepared. PW20 has also deposed about the recovery of Motorola phone from H.No. B6/320, Sector17, Rohini, on the pointing of accused Bhajan Singh, which was sealed and seized vide memo Ex. PW20/M. Thereafter, accused persons led the police party and pointed out Maruti Van No. DL2CK0823, which was used in dumping the dead body of the child, which was also taken into possession in this case.
PW30 Inspector Jai Prakash has also deposed the same facts of the proceedings, which had taken place on 15/07/2004 regarding recovery of Motorola phone and pointing out of the place of kidnapping and place of murder and also pointing out of Maruti Van No. DL2CK0823.
From the depositions of these witnesses, prosecution has not been able to connect Maruti Van No. SDL2CK0823 to the extent that the same was used in disposing of the dead body of child Wasim by the accused persons as in the cross examination, PW30 Inspector Jai Prakash has stated that he cannot tell whether there was any blood stain in the Maruti Van. He does not remember whether any evidence was collected regarding using of the Maruti Van in question from the neighbourhood. Learned defence counsel has further contended that at the time of seizing of Maruti Van, which was pointed out by the accused persons as the same, in which, the dead body was removed and dumped in the Nala, IO had SC No. 18/1 44 not called the FSL team to examine the Maruti van to the extent that the same was used in removing the dead body to Ganda Nala. So, prosecution has not been able to prove this fact in any manner beyond reasonable doubts.
According to the postmortem report Ex.PW3/A, time since death has been opined about 3 to 4 days prior to postmortem. Postmortem has been conducted on 15/07/2004, so, the death of the child might have taken place on 11 or 12/07/2004. According to the report prepared by the IO Ex. PW32/A, he has mentioned the time of death and date as 12/07/2004 at about 1.00 p.m. If the death had taken place on 12/07/2004 at about 1.00 p.m,. then how the dead body of the child could have been removed by the accused persons in the Maruti van No. DL21CK0823 on 11/07/2004 in the night.
PW32 retired ACP Tilak Raj Mongia has further deposed that on 17/07/2004, one of the accused Joginder Singh @ Jagga led the police party to nala near Sector17, Rohini and pointed out the place near the bank of the nala, where he had concealed the cycle belonging to deceased child Wasim and at his instance, cycle was recovered from there. It was taken into possession vide seizure memo Ex. PW14/A. It was of make Aone. Thereafter, accused Joginder @ Jagga led them to H.No. B7/144, Sector17, Rohini and got recovered two mobile phones. Thereafter, accused Ashok @ Bobby got recovered oner pair of Relaxo chappal, which were concealed by him in the heap of bricks on the roof of H.No. B7/144, Sector17, Rohini. The pair of chappals was of deceased child Wasim. The same were sealed with the seal of TRM and were seized vide memo Ex. PW14/C. Thereafter, they came back to PS and case property was deposited in the malkhana.
According to PW14 Navneet, on 17/07/2004, he was passing by the side of Nala and was going from Sector16 to 17 Market, Rohini. At about 2.00/2.30 p.m., he had seen 34 police officials with all the three accused persons and some other public persons standing there. He was made to stop by the police. The police officials disclosed him about the kidnapping and murder of child Wasim by the accused persons and asked him to join the investigation.
PW14 has further deposed that after a little while, one person Mohd. Yunus i.e. PW16 came there and he came to know that he was father of deceased child Wasim. Then, they went by the side of wall of Ganda Nala, towards down. There was a ditch and accused SC No. 18/1 45 Joginder @ Jagga told that he had concealed the cycle of deceased child in the said ditch. It was covered with dry leaves, from where, the cycle was not visible. Then, accused Joginder @ Jagga removed dry leaves from the said ditch and took out a bicycle. The cycle was of Avon company having purple colour and complainant Mohd. Yunus identified the same to be of his deceased child Wasim. It was seized vide memo Ex. PW14/A. Mohd. Yunus had pointed out that basket was missing from the cycle. Thereafter, accused Joginder @ Jagga led the police party to his house and got recovered two mobile phones, which were seized in this case. Thereafter, accused Ashok Kumar @ Bobby led the police party to the roof of the said flat and pointed out towards some bricks, where he had concealed the pair of hawai chappals. The bricks were removed and a pair of hawai chappal was taken out. The same was identified by complainant Mohd. Yunus belonging to his son Wasim. The said slippers were of Relaxo company, having light blue colour. These were sealed with the seal of TRM and were seized vide memo Ex. PW14/C. PW14 has also identified the pair of hawai chappal as Ex. P3 and child bicycle as Ex. P4.
In the cross examination, PW14 Navneet has stated that place of recovery of bicycle was not a thoroughfare. It was deserted and secluded place. According to cross of PW14, accused Ashok and Joginder pointed out the place, where bicycle was concealed and accused Ashok removed the leaves and thereafter, accused Jagga lifted the bicycle. The pullanda of bicycle was prepared on road near the police gypsy. He had signed the seizure memo. He however had gone to the house of accused Joginder with the police party on his two wheeler scooter. Father of deceased child also accompanied them on his own vehicle and the pullanda of the slippers was prepared in the house of accused Joginder itself. Seizure memo was prepared in the room of accused Joginder. He was relieved at about 4/4.30 p.m. PW14 has denied that he became witness to the proceedings being relative of father of deceased. PW14 Navneet is an independent witness. It has not been brought on record that he was interested in the proceedings in any manner or was related to PW16 complainant Mohd. Yunus in any manner. He is not having any motive to depose falsely against the accused persons before the Court. He has stated that complainant Mohd. Yunus was in black colour Scorpio, which has been corroborated by PW16 Mohd. Yunus, who has deposed the same facts regarding recovery of bicycle, two mobile phones and pair of Relaxo SC No. 18/1 46 hawai chappal. According to cross of PW16 Mohd. Yunus, writing work was done while standing at the Nala, which corroborates with the cross examination of PW14 Navneet, who has stated that pullanda of the bicycle was prepared at the spot. According to cross of PW16 Mohd. Yunus, bicycle was got recovered from a pit, covered by leaves and grass, which is also corroborating with further cross examination of PW14 Navneet. PW16 Mohd. Yunus has also stated that one public person accompanied them namely Navneet i.e. PW14. So, nothing came out from the cross examination of PW16 Mohd. Yunus also to disbelieve his testimony regarding the recovery of bicycle on the pointing of accused persons.
According to PW20 HC Manvir Singh, on 17/07/2004, accused Joginder led them to Ganda nala, towards southern side of A8/40, Sector17, Rohini, and from there, he got recovered one child cycle make Aone of purple colour. It was having two extra wheels near the rear wheel of the cycle. It was kept by accused in a dried place in ganda nala under the dried branches and leaves of trees. Cycle was identified by the complainant. It was taken into possession vide memo Ex. PW14/A. Thereafter, accused Joginder also got recovered two mobile phones, which were sealed and seized in this case. Accused Ashok Kumar led the police party to the roof of house No. B7/144, Sector17, and got recovered one pair of slippers make Relaxo of light blue colour, which were kept by him beneath the bricks. These were identified by the complainant. These were sealed into a pullanda with the seal of TRM and were seized vide memo Ex. PW14/C. According to PW28 HC Om Prakash, on 17/07/2004, Inspector T.R. Mongia deposited with him one baby cycle make Avon, two pullandas containing mobile phones and slippers. He made entry in register No. 19 vide serial No. 1930, copy of which is Ex. PW28/C. PW28 has not been cross examined in any manner.
In view of the depositions of these witnesses, prosecution has been able to prove beyond reasonable doubts the recovery of bicycle make Avon belonging to deceased Wasim on the pointing of accused persons nearby the ganda nala, which was concealed there and was within the knowledge of the accused persons only.
PW32 retired ACP T.R. Mongia has deposed that on 18/07/2004, accused Joginder Singh @ Jagga and Bhajan Singh @ Gulla led them to the house of accused Bhajan Singh, where from the roof of third floor, accused Bhajan Singh had produced basket of the SC No. 18/1 47 recovered cycle make Aone and one key ring containing two keys and one Taveez, which were kept by him in the plastic tanki, at the roof. All these articles were kept in a white plastic polythene. Taveez was found containing photo of Ajmer Sharif and a slip bearing the name of deceased Wasim and his father's name. He prepared pullanda of these articles, which were kept in the plastic polythene, sealed with the seal of TRM, which was taken into possession vide memo Ex. PW16/E. Thereafter, accused Bhajan Singh also got recovered SIM of mobile phone No. 9899122565, which was also seized in this case. Then, both accused Bhajan Singh and Joginder led them to H.No. B6/412, Sector17, Rohini and pointed out towards one scooter bearing registration No. DL8SK5582 and told that it was taken by them from one Vivek Manchanda, resident of B6/416. The same was seized vide memo Ex. PW9/A. Vivek Manchana was examined. Some documents of the scooter were taken into possession vide memos Ex. PW32/C and Ex. PW32/D. According to PW9 Vivek Manchanda, on 12/07/2004, in the evening hours, accused Bhajan Singh @ Gulla alongwith his sister's son Jagga i.e. accused Joginder Singh, came to him and asked for his scooter No. DL8SK5582 of Bajaj. He gave his scooter to them. It was returned to him after one house. On 13/07/2004, at about 6.00 p.m., again, both these accused asked for his scooter as they wanted to go to Bawana. He again gave them scooter. They returned the scooter at about 10 p.m. on the same day.
PW9 has further deposed that on 18/07/2004, police came to his house alongwith both these accused and told that accused persons had used his scooter in the commission of the crime. Police seized his scooter vide memo Ex. PW9/A. Thereafter, he got released the scooter on superdari. The scooter has been stolen on 09/12/2004, so, the witness could not produce the scooter before the Court.
Again, prosecution has not been able to connect this scooter with the commission of crime by accused persons in any manner. Even if it is assumed that scooter was taken by the accused persons twice from PW9 Vivek Manchanda, then it does not mean that the said scooter was used by the accused persons in the commission of crime in any manner as there is no other evidence to connect.
According to PW16 Mohd. Yunus, on 18/07/2004, he had gone to PS. Accused persons were with the police. Accused Bhajan Singh led the police party to the roof of his SC No. 18/1 48 house and produced a cycle basket from a tanki and had also produced from underneath the slab, on which, the tanki was lying, one taveez and one key ring. One written slip was taken out from the Taveez, having some words in Urdu language. The key ring was having two keys. These were sealed in a pullanda and were seized vide memo Ex. PW16/E. In the cross examination, PW16 has stated that he had signed the documents prepared at the spot. He had also gone to the roof of the house, from where, basket of the bicycle was recovered.
PW20 HC Manvir Singh also joined the investigation on 18/07/2004. According to him, complainant Mohd. Yunus met them at the gate of the PS. He was also joined in the investigation. Thereafter, both accused Bhajan Singh and Joginder Singh led the police party to the house of accused Bhajan Singh at B6/320, Sector17, Rohini, and further, accused Bhajan Singh led them to the roof of the house, from where, he got recovered one red colour basket of cycle, one taveez, one key ring, having two keys. These articles were identified by the complainant. These were sealed in a pullanda and were seized vide memo Ex. PW16/E. PW20 has further deposed that accused persons led them to H.No. B6/416, Sector17, Rohini, and in front of that house, one scooter bearing registration No. DL8SK5582 was found parked. It was pointed out by both the accused. The said scooter was taken into possession vide memo Ex.PW9/A. Owner of the scooter was Vivek Manchanda i.e. PW9. Documents were taken into possession vide memo Ex. PW20/N. Thereafter, they came back to PS. According to PW27 SI Sudama Sharma, on 18/07/2004, he was posted at PS Prashant Vihar. On that day, he joined investigation of this case. Accused Bhajan Singh and Joginder were already on police remand. They left PS Prashant Vihar at about 11.35 a.m. alongwith the accused. While they were coming out from the PS, at the gate, complainant Mohd. Yunus met them. He also joined them. Thereafter, accused Bhajan Singh led them to H.No. B6/320 Sector17, Rohini, on the roof of third floor, where one water tank of black colour was found installed at the Northeast side corner of the roof. Accused Bhajan Singh got recovered one polythene bag containing one key chain, having two keys and one Taveez with black thread and one broken basket of child cycle of red colour. Complainant Mohd. Yunus identified the articles as belonging to his son and his SC No. 18/1 49 son's cycle. Taveez was checked and it was found containing one slip of Ajmer Sharif, on which, something was written in Urdu language. Thereafter, these articles were sealed in a pullanda and were taken into possession vide memo Ex. PW16/E. Seal after use was handed over to him. Nothing came out from his cross examination to disbelieve his testimony in this respect.
The disclosure statements were made by accused Bhajan Singh, Joginder Singh and Ashok Kumar on 15/07/2004, whereas according to the case of the prosecution, except recovering the dead body and one mobile phone Motorola from the house of accused Bhajan Singh, no further recovery could be effected. Accused persons had not made any supplementary disclosure statements regarding recovery of the articles, which were got recovered by the accused persons on 17/07/2004 and 18/07/2004. The articles, which were allegedly recovered on 17/07/2004 were produced by the accused persons, so, the same could be recovered on 15/07/2004 itself. The articles recovered on 17/07/2004 and 18/07/2004 were lying on the roof of the house i.e. pair of Relaxo chappal, taveez, key chain, basket of the cycle in the water tank of the roof, which could have been searched and recovered even on 15/07/2004, if at all, these were lying there. Under such circumstances, the recovery effected of articles on 17/07/2004 and 18/07/2004 cannot be said to be made from the possession of accused persons, so is not inspiring any confidence.
SIM card of mobile phone No. 9899122565 was also got recovered by accused on 18/07/2004. It seem to be improbable as to why the accused persons will possess or conceal these articles in their house i.e. SIM card of mobile phone No. 9899122565 underneath the water tank, taveez, key chain and basket of the cycle in the water tank, pair of Relaxo chappal underneath the heap of bricks because none of the article was valuable in any manner and if the chip of mobile No. 9899122565 was used by the accused persons, then it could have been thrown after breaking the same anywhere and there was no need to keep the same concealed. Concealing the basket of the cycle in the water tank also seems to be unnatural because the bicycle itself was found in a ditch at the instance of accused persons, while covered with leaves. If bicycle could have been concealed there, then the same could have been concealed with the basket also, so, there was no need to separate the basket from the bicycle. It is further contended that there was no purpose being served of SC No. 18/1 50 accused persons by concealing the pair of Relaxo hawai chappal, taveez, key chain, SIM card etc and these articles could have been thrown with the dead body itself or anywhere else. So, the conduct of the accused persons does not seem to be natural in possessing these articles and concealing them, that too, in their house, hence, witnesses cannot be relied upon in respect of the recoveries effected on 17/07/2004 and 18/07/2004. Cause of Death:
To prove the cause of death, PW3 Dr. L.C. Gupta has been examined, who has stated that on 15/07/2004, he alongwith Dr. Anil Shandilya had conducted postmortem examination on the dead body of Wasim Ahmed, eight year old boy, on inquest papers of SHO PS Prashant Vihar. Dead body was submitted in two gunny bags, one above the other. The dead body was found tied in squatting position with multiple layer of rope. Both legs just above two other and both side wrist tied with each other. Typical postmortem injuries were found underneath the rope marks.
PW3 has further deposed that taveez was present in the neck. Wearing clothes were removed, preserved and sealed and were handed over to the police alongwith the rope. Gunny bags were handed over unsealed. According to PW3, cause of death in their opinion was asphyxia resulting from forceful closure extraneous air passage, which was sufficient to cause death in ordinary course of nature. It was homicidal death. The deceased was tied with ropes after killing and then packed in two gunny bags, one or above and then dumped into the ganda nalla. Time since death was 34 days prior to the postmortem. PW3 has proved the report as Ex. PW3/A and has also identified the writing and signatures of Dr. Anil Shandilya on the same.
PW4 Dr. Anil Shandilya has also been examined. He has also deposed the same facts as of PW3 Dr. L.C. Gupta and has identified his writing and signatures on the report. Both these witnesses have not been cross examined in any manner, so, their testimonies are unrebutted and unshaken.
According to PW29 Inspector K.G. Tyagi, after obtaining the result from CFSL, he prepared the charge sheet and filed the same.
In view of above, the contentions of learned defence counsel are not forceful in any manner. The contradictions, as pointed out, are minor in nature. All the witnesses SC No. 18/1 51 examined regarding recovery of dead body on the pointing of accused persons and recovery of bicycle from the pit, which was found covered with the leaves, are inspiring confidence and are trustworthy and they all have corroborated with each other in this respect. On 15/07/2004 itself, all the three accused persons got recovered the dead body, which is evident from the photographs. The cause of death is strangulation, so, there could not be any evidence of murder in the house of accused persons. Dead body was recovered on the pointing of accused persons from a drain. Independent witness PW7 Abdul Sattar has been examined in this respect, who was a diver and brought out the dead body from the drain. It was identified by PW16 Mohd. Yunus. In furtherance of their disclosure statements, accused persons also got recovered bicycle of deceased Wasim from a pit, which was found covered with leaves. One independent witness PW14 Navneet has also corroborated the same. He is an independent witness and is not related to PW16 Mohd. Yunus, father of child Wasim, in any manner. PW14 Navneet has not motive to depose falsely against the accused persons. The place, from where the bicycle was recovered, was a deserted and secluded place and was pointed out by the accused persons, so, merely on the ground that it was an open place, does not mean that the same was approachable by the general public and the bicycle was found concealed in a pit, covered with leaves, which was in the knowledge of accused persons only, who got recovered the same in furtherance of their disclosure statements.
In view of above discussion, the prosecution has been able to prove beyond reasonable doubts that all the three accused persons entered into a criminal conspiracy to commit murder of child Wasim. Accordingly, all the three accused persons are held guilty and convicted for the offence U/s. 120B of IPC.
The dead body and the bicycle were recovered on the pointing of accused persons, which is evident from the photographs taken at the spot. The testimony of the photographer in this respect is unrebutted and unshaken. Other witnesses have also corroborated in this respect, so, prosecution has also been able to prove offence U/s. 201 read with Section 120B of IPC beyond reasonable doubts against all the three accused persons, for which, they are held guilty and convicted for the same.
None of the accused has explained as to how they came into the possession of SC No. 18/1 52 dead body. They had pointed out the dead body, which was disposed off by them in a drain. The dead body was packed in two jute sacks alongwith bricks, which shows that motive of the accused persons was not to surface the dead body in the water of the drain. However, the same was recovered from a drain by diver PW7 Abdul Sattar. Under such circumstances, it was upon the accused persons to explain as to how they came in possession of the dead body.
In a case of circumstantial evidence, each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistibly conclusion about the guilt of accused can be safely drawn and no other hypothesis against the guilt is possible. In support of the same, 2002(1) JCC 46 titled as Sudama Pandey and ors Vs. State of Bihar and further 1998 (2) JCC (Delhi) 207 titled as Chander Pal Vs. State are relied upon.
Under such circumstances, it was for the accused persons to explain as to how they came in possession of the dead body and bicycle, which was disposed off by them, so, the only irresistibly conclusion, which can be safely drawn, is that accused persons had committed murder of child Wasim and no other hypothesis against the guilt is possible. Accordingly, the burden was upon the accused persons to explain U/s. 106 of Indian Evidence Act as to how, they came in possession of the dead body and bicycle and the burden has been shifted upon the accused persons in this respect. The above circumstances clearly indicates, as brought on record, about the disposal of the dead body and bicycle that Wasim was murdered by the accused persons. In support of the same, 1997 CRI. L.J. 499(1) titled as Shunmugasundaram Vs. State by Deputy Superintendent of Police is relied upon, wherein it has been held as under:
"We have already mentioned, that the appellant and the deceased were the sole occupants of the house in which the deceased was found dead. We have also found, that the appellant and the deceased, when alive, were found together in the said premises. It is not the case of the appellant, that without any particular avocation, he had gone away from his house, and in his absence, somebody had killed his wife. If some occurrence happens inside SC No. 18/1 53 the residential portion of the appellant, wherein he was also available, at or about the time of the incident, he is bound to offer his version as to how the occurrence had taken place. The only other person who can speak about the occurrence will be the deceased and now that she is dead, if at all, the appellant and the appellant alone can offer an explanation. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that this Section cannot be used, so as to shift the onus of proving the offence, from the prosecution to the accused. However, in the present case there is satisfactory evidence, which fastens or conclusively fixes the liability, for the death of Gandhimathi, on the inmate of the house present therein at the relevant time. So, in the absence of any other explanation, the only possible interference is that the appellant had participated in the act. If he claims contrary, under Section 106 of the Evidence Act, the burden of proving that fact is upon him, since that is within his special knowledge. In Shambho Nath V. State of Ajmer, AIR 1956 SC 404; (1956 Cri LJ 1794), the scope and object of Section 106 of the Evidence Act came to be considered by the Supreme Court."
It has also been held in AIR 2008 Supreme Court 10 titled as State of Rajasthan V. Parthu that "apart from the fact, as noticed hereinbefore, that the homicidal nature of death was not disputed by the respondent herein and furthermore as he in his statement under Section 313 had raised a positive defence that she died of an accident, we are of the opinion the High Court adopted a wrong approach. It is not disputed that the deceased and the appellant were living separately from their family. It has also not been disputed that at the time when the incident occurred, the respondent was in his house together with the deceased. It is furthermore not in dispute that after the incident took place, the respondent was not to be found. He was arrested only on 20/06/1995. If the deceased and the respondent were together in their house at the time when the incident took place which was at about 10 O'clock in the night, it was for the respondent to show as to how the death of the deceased took place.
In the absence of sufficient or cogent explanations in that behalf the Court would be entitled to consider the same as the circumstances against the accused. (See Raj Kumar Prasad Tamakar Vs. State of Bihar, 2007 (1) SCALE 19.
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This Court in a large number of decisions in a case of this nature had also applied the principles of Section 106 of the Indian Evidence Act. (See State of Rajasthan Vs. Kashi Ram, 2006 (XI) SCALE 440 and State of Punjab Vs. Karnail Singh (2003) 11 SCC
271."
In view of above, the prosecution has been able to complete the chain of circumstantial evidence against the accused persons to the extent that they committed murder of child Wasim by strangulating him and disposed off his dead body in a drain and also disposed off his bicycle in a pit and concealed the same with the leaves. So, the prosecution has also been able prove beyond reasonable doubts offence U/s. 302 read with Section 120B of IPC against all the three accused persons, for which, they are held guilty and convicted for the same.
Announced in Open Court on
dated 19th of August, 2013 (Virender Kumar Goel)
Additional Sessions Judge
Fast Track Court /Rohini : Delhi
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