Delhi District Court
State vs Mandeep on 19 May, 2012
1
IN THE COURT OF SHRI SANJEEV KUMAR, ASJ01 , OUTER DISTRICT,
ROHINI, DELHI
SC No.90/2011
FIR No.68/2011
PS Begumpur
U/s 302/201/120B/34 IPC
State
Versus
1. Mandeep,
S/o Abhay Ram,
R/o H.No.581, VPO Sultanpur Dabas,
Delhi.
2. Naveen Dabas,
S/o Surender Singh,
R/o H.No. 185, VPO Sultanpur Dabas,
Delhi.
3. Rekha,
W/o Late Vinod Kumar,
R/o H.No.A4/173, Sector20,
Rohini, Delhi. .... Accused
Date of Institution of the case:19.7.2011
Date of Decision:8.5.2012
State V Mandeep & Ors.
FIR No.68/11
PS Begumpur Page No. 1 of 129
2
JUDGMENT
1. The brief facts of the prosecution case are that Vijay Kumar was stabbed and in this regard information was given by someone on mobile no.9953502412 in Police Control Room which was later on passed on to duty officer of PS Begumpur and DD no.9A was recorded in the PS which later on handed over to Inspector Lalit who reached at the spot and found blood lying at two places and came to know that the injured has been shifted to the SGM Hospital. He reached at the hospital and found that injured Vinod s/o Vijay Singh had expired. Since he did not find any eye witness in the hospital therefore he prepared the rukka on the basis of DD no.9A and got the FIR no.68/11 registered u/s 302 IPC through HC Sushil Kumar. During investigation, he collected the call details of mobile phone no.9810181851 belonged to the deceased and mobile no.9268001098 belonging to Rekha. On State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 2 of 129 3
examination he found that Rekha had long talks on mobile no. 9289695980. After obtaining the call details, he came to know that mobile phone of Rekha as well as mobile no.9289695980 are registered in the name of Naveen Dabas. He conducted interrogation of Rekha and she admitted that she had illicit relation with Naveen Dabas who used to give tuition to her children and her husband came to know about her relation, therefore she in conspiracy with Naveen Dabas and Mandeep got her husband killed. During investigation statement of other witnesses were recorded. Accused Rekha, Naveen Dabas and Mandeep were arrested. Mobile phone no.9268001098 and burnt mobile phone no.9289696849 from the possession of accused Rekha were seized. On the disclosure of accused Naveen and Mandeep the weapon of offence i.e knives were recovered. Post mortem of deceased Vinod was got conducted and PM Report was collected. After completion of State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 3 of 129 4
investigation, charge sheet u/s 302/120B/34 IPC was filed against all the accused before learned MM and they were put to trial.
2. After compliance of provisions u/s 207 Cr.P.C. the case was committed to the sessions court which was later on assigned to this court.
3. The charge for the offences punishable u/s 302/120B/34 IPC and 302/34 IPC was framed against all the accused and charge u/s 201 IPC read with section 120B IPC was also framed against accused Rekha and charge u/s 25/27 Arms Act was framed against accused Naveen Dabas and Mandeep vide oder dated 3.8.2011 to which accused pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined as many as 18 witnesses.
5. PW1 W/Ct. Malti; PW2 Ct. Sachin; PW3 SI Manohar Lal, State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 4 of 129 5
PW4 Jasbir Singh; PW5 Mukesh; PW6 Vijay Singh; PW7 Dr. Manoj Dhingra; PW8 HC Sushil Kumar; PW9 Bhopal Singh @ Vir Singh; PW10 HC Anand Parkash; PW11 SI Anil Kumar; PW12 Gaganjeet Singh Sidhu, Nodal Officer Tata Tele Services Ltd.; PW13 Anjali Sharma; PW14 Ct. Vijay; PW15 HC Parmod Kumar ; PW16 ASI Sudershan Kumar; PW17 Ct. Subhram; and PW18 Inspector Lalit Kumar.
6. PW1 W/Ct. Malti deposed that on 29.3.11 she joined the investigation with IO Inspector Lalit and other police officials and reached at A4/173, Sector20, Rohini, Delhi where accused Rekha met her. (She correctly identified accused Rekha). During investigation accused Rekha initially tried to mislead the IO by changing her version but after confronting of her conversation with accused Naveen on mobile phone she confessed her involvement with her associates Naveen and State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 5 of 129 6
Mandeep for the murder of her husband Vinod. She was arrested by IO vide arrest memo ExPW1/A, her personal search was taken vide memo ExPW1/B. Accused gave confession statement ExPW1/C and got recovered one burnt mobile phone from the gutter of her neighbor which was seized by IO vide seizure memo ExPW1/D after making pulunda and sealing with the seal of LK. Accused Rekha also handed over one mobile phone make Samsung containing SIM card of TATA Indicom which was sealed by the IO in a pulunda with the seal of LK and taken into possession vide memo ExPW1/E. The accused Rekha also handed over one another phone of Thereafter accused led towards the house in village Sultanpur Dabas where she pointed out towards accused Naveen (accused correctly identified by the witness) who was sitting in the courtyard. IO apprehended accused Naveen. Thereafter IO recorded the statement to this effect. She identified the mobile phone which was State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 6 of 129 7
in burnt condition as ExP3 and Samsung mobile phone given by the Rekha as ExP4.
In cross examination, she stated that she went to the house of Rekha at 10 am by private conveyance. But she do not remember the make of vehicle or description and reached there at about 10.30/10.40 am. She do not remember other persons present in the house of Rekha or how many rooms were there on the ground floor. She admitted that no person from nearby house was called when Rekha was interrogated by the IO. She cannot tell from where the burnt mobile phone was recovered. She did not take permission from the house owner of the said gutter from where the burnt mobile phone Ex.P3 was recovered. The gutter was situated under a house. She denied the suggestion that she put signatures on the documents at the PS and did not accompany with the IO to the house of accused. They returned back to the PS State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 7 of 129 8
finally at 8 pm. She denied the suggestion that she was tutored by the IO on the last date of hearing when her examination in chief was recorded.
7. PW2 Ct. Sachin stated that on 23.3.11 one DD no.9A was received by ASI Sudarshan Kumar. He along with ASI Sudershan Kumar reached wine shop in Sector20, Rohini and noticed blood lying at the spot and also found hawai chappal. On inquiry they came to know that injured has been removed to SGM Hospital. ASI Sudarshan left the spot and went to SGM Hospital. After sometime Inspector Lalit Kumar came along with HC Sushil. Thereafter they left for SGM Hospital and from the hospital they reached at the spot. Crime Team also reached and took photographs of the spot from different angles. Inspector Lalit Kumar lifted blood, blood stained earth control, earth control without blood, one rubber chappal blood stained, one hawai chappal which were State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 8 of 129 9
seized by the IO in separate pulunda no.A to G and sealed with the seal of LK and taken into possession vide memo ExPW2/A. Thereafter he along with Inspector Lalit Kumar reached at SGM Hospital where post mortem of deceased Vinod was conducted and after post mortem doctor handed over two pulundas sealed with the seal of SGMH with one sample seal which were sealed by IO vide memo ExPW2/A. He identified the hawai chappal as ExP1 and ExP2.
In cross examination by learned Defence counsel he stated that Inspector Lalit Kumar along with head constable reached at the spot after 15 minutes of leaving the spot by ASI Sudershan Kumar around 8.45 am. He admitted that spot is surrounded by residential colony and house of deceased can be seen from the spot or vice versa. The public persons were present at the spot. Either IO Inspector Lalit Kumar or ASI Sudershan Kumar recorded the statement of public persons present at State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 9 of 129 10
the spot in his presence.
8. PW3 SI Manohar Lal draftsman prepared the scaled site plan ExPW3/A at the instance of IO on 11.6.2011.
9. PW4 Jasbir Singh deposed that accused Rekha is his bhabi and married to his brother Vinod (deceased). He cannot tell the mobile number used by accused Rekha. He used to talk with her occasionally. He stated that when he identified the dead body of the deceased in mortuary his statement ExPW4/A was recorded in this regard by the IO.
With the permission of the court, learned APP asked leading questions from the witness in which he admitted the suggestion that accused Rekha used to talk with him on his mobile phone and her mobile number is 92680001098.
In his cross examination he stated that accused Rekha and State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 10 of 129 11
his brother Vinod got married 18 years ago. He did not attended the said marriage. Relation between him and his brother was cordial till his death. At the time of marriage, his brother was working in a school. He did not remember the name of the school of his brother. The deceased was doing the business of sale purchase of old vehicles. He admitted that he was not frequently visited the house of the accused as accused Rekha did not like him. He admitted that house of his deceased brother at present is in their possession but voluntarily stated that key of the house is with police. He denied the suggestion that he has borrowed money from his deceased brother nor he lend any money to his deceased brother.
In cross examination by Ld. Defence counsel of accused Rekha, he denied the suggestion that Vijay Singh had made attempt to murder on the deceased Vinod when he was 14 years of age due to State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 11 of 129 12
which deceased ran away to Delhi and started living with his paternal aunt Jeeto. He stated that he did not know whether accused Rekha and deceased live together immediately after marriage and at how many placed they lived together prior to the incident or that in which house deceased and Rekha were staying when their first and second daughter were born or that when the house at Rohini was purchased by his brother.
10. PW5 Mukesh deposed that 56 months back two police officials came to his shop along with two boys and showed him two knives by saying that whether he used to sell these types of knives and he told that he do not sell such type of knives. He was declared hostile by learned APP.
In cross examination by learned APP he denied the suggestion that accused Naveen and Mandeep were the two persons State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 12 of 129 13
who had purchased the knives from his shop. He was not cross examined by defence counsel.
11. PW6 Vijay Singh father of the deceased deposed that his son was in the business of sale purchase of cars and was married with Rekha 1920 years ago. It was a love marriage and out of the said marriage they have three children. Vinod and accused used to quarrel as the character of Rekha was not good. He saw them quarreling whenever he used to visit their house and he pacified them. Vinod told him that character of Rekha was not good and few days prior to the incident he visited to the house of deceased and deceased told that "Rekha ka chaal chalan theek nahi hai, woh mujhe baarbaar dhamkati hai aur kehti hai apna kaam se matlab rakh nahi to aisa sabak sikhaungi ki tu yaad rakhega". After 2025 days he received phone call from mobile of Vinod and caller told that Vinod has been stabbed by someone State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 13 of 129 14
and asked him to reach at SGM Hospital and he identified the dead body of his son and his statement ExPW6/A was recorded by police. He used to talk to Rekha on her mobile phone 92680001098. He also identified accused Naveen and stated that accused Naveen used to give tuition to the children of his son.
He was cross examined in which he denied the suggestion that marriage of accused Rekha and deceased was fixed by his sister Jeeto and stated that he has no sister namely Jeeto. He further stated that he do not know who is the owner of house no.A4/173, Rohini where Vinod was residing with his family. He denied the suggestion that said house was gifted by the mother of accused Rekha to them. At the time of incident two tenants were residing at the house of accused at first floor and second floor. The belonging of Vinod from the said house were taken by the mother of Rekha but voluntarily stated that police has State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 14 of 129 15
handed over the keys of said house to him but he refused to accept the same as there was nothing in the said house at that time.
In cross examination by Shri Kundan Kumar, he stated that he used to talk with Rekha from his phone number 9671155363, 99912229093 and 9991229033 belonging to him and his wife.
PW7 Dr. Manoj Dhingra stated that he conducted the post mortem vide PM Report no.263/11 on the dead body of deceased Vinod on 23.3.11. He proved the post mortem report ExPW7/A. In cross examination he stated that injury no.3 i.e cut throat injury horizontally present over neck which cuts the part of the neck, artery, venis, treachea and other parts of the neck, the death occurs simultaneously with the injury.
He was further recalled and shown the knives and he stated that cut marks on clothes examined in his post mortem no.263/11 dated State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 15 of 129 16
23.3.11 can be possible by said knives or any other such knife and injury present on the body of deceased can possibly be caused by above examined knives or any other such knife. He proved subsequent opinion as ExPW7/B . He prepared the sketch of knives ExPW7/C. He was not cross examined.
12. PW8 HC Sushil Kumar stated that on 23.3.11 on receiving DD no.19, he along with IO and Ct. Tunda Ram reached At Sector20, Rohini, Delhi. Ct. Sachin met them at the spot and informed injured has been taken to the SGM Hospital. He found blood on two places and also found one pair of slipper at the spot. He along with IO Inspector Lalit reached at SGM Hospital where ASI Sudershan met them and they informed that Injured Vinod Kumar has expired. IO Inspector Lalit Kumar gave rukka and sent him for registration of the FIR. He got the FIR registered and returned back at the spot. In his presence Inspector State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 16 of 129 17
Lalit Kumar sealed one slipper in a cloth pulunda with the seal of LK and other slipper in another cloth pulunda sealed with the seal of LK and lifted the blood, blood earth and earth control from the spot and sealed the same with the seal of LK and seized vide seizure memo ExPW2/A. Thereafter they reached at SGM Hospital where after post mortem doctors handed over one polythene in sealed condition and one envelop in sealed condition with the seal of SGMH which was seized by the IO vide seizure memo ExPW2/B. He identified the slippers as ExP1 and ExP2.
In cross examination, he stated that place of incident is surrounded by the residential area but residential houses are not visible from the spot. IO tried to locate the gardener and chowkidar of the park but no one was contacted. The proceedings of Crime Team were conducted in his presence. IO conducted inquiry from the public persons State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 17 of 129 18
present there but he did not remember whether the IO had recorded their statement at the spot or not.
13. PW9 Bhopal Singh deposed that on 23.03.2011 at about 7 a.m., he was present at his house and heard the noise "Maar Diya, Maar Diya". He saw from his house that, some persons gathered in the ground in front of his house. He went there and saw that Vinod was lying there and blood was oozing out and there was injury on his neck and stomach portion. He immediately called at 100 number by his mobile phone number 9953502412.
In cross examination, he stated that he left the spot within 57 minutes at about 7.05/7.07 a.m. He made the call on 100 number at about 7 a.m. After two months police reached at his house and recorded his statement. The spot where Vinod was lying in injured condition was vacant plot. Neighbours took the injured in the Honda City State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 18 of 129 19
Car for his medical treatment but he did not know the names of them.
14. PW10 HC Anand Parkash stated that on 23.3.11 he received rukka through HC Sushil Kumar sent by Inspector Lalit Kumar and recorded FIR no.68/11 ExPW10/A and made endorsement on the rukka ExPW0/B. He also prepared DD no.15A dated 23.3.2011 ExPW10/C and DD no.9A dated 23.3.11 ExPW10/E. In cross examination he denied the suggestion that DD entries and FIR are anti time and manipulated.
15. PW11 SI Anil Kumar In charge Crime Team, stated that on 23.3.11 at about 8.10 am he received call from PCR Control Room to reach at the spot behind liquor shop in the park Sector20, Rohini and he along with HC Karamvir, Ct. Ravinder reached there, where other staff was present. He found blood there at two places, one pair of sleeper and one of the sleeper was blood stained. He inspected the spot and State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 19 of 129 20
prepared crime team report ExPW11/A. In cross examination he stated that he reached at about 10 am and remained till 10.30 am.
16. PW12 Gaganjeet Singh Sidhu, Nodal Officer, Tata Teleservices Ltd. previously as Tata Indicom. He deposed that mobile number 9289696849 was issued in the name of Naveen Dabas S/o. Surender Singh Dabas and Customer Application is ExPW12/A, the Customer Application is Ex.PW12/A and Election I Card as Ex.PW12/B. He proved call details of the said mobile phone from 10.03.2011 to 23.03.2011 as Ex.PW12/C running in seven pages. He proved certificate u/s. 65 B of the Indian Evidence Act as Ex.PW12/D. He proved Tower ID Chart in respect of the locations of the mobile phone towers as Ex.PW12/E running in 25 pages. He also deposed that phone no. 92680001098 is issued to Naveen Dabas and proved customer State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 20 of 129 21
application form as ExPW12/F and ID proof of accused Naveen Dabas as ExPW12/G and call details w.e.f. 1.1.11 to 31.3.11 as ExPW12/H. He also proved the application form of mobile phone no.9289695980 which was issued in the name of Naveen Dabas as ExPW12/J, ID proof as ExPW12/K, call details w.e.f. 1.3.11 to 31.3.11 ExPW12/L and certificate u/s 65 B Indian Evidence Act as ExPW12/M. In cross examination he stated that mobile no.9289695980 was issued on 29.1.10 and another mobile no.9289696849 was issued on 15.3.10 or 15.5.10. He further stated that mobile number allotted to another customer after it discontinued for the period of six months. He stated that tower no.29107 is located at plot no.1514 Pooth Kalan, Budh Vihar, Delhi and tower no.28048 is situated at plot no.B4/1 and B4/2 Sector20 Rohini Extn., Rohini, near Pooth Kalan, Delhi. He admitted that location of 9289695980 at point A in ExPW12/L is mentioned as State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 21 of 129 22
tower no.29586 and at point B at tower no.28064. It is further stated that tower No. 29586 is located at 154/493, VillagePooth Khurd, Rajeev Tent House, Gali Chabhu Bawana Road and Tower No.28064 is situated at Plot No.67, Khasra No.37, VillageMubarakpur Dabas, Delhi. He further stated that point C at page 12 of Ex.PW12/L, the call originating time is mentioned as 06:52:16 and it continued for the period of 1800 seconds and the location remained the same.
17. PW13 Anjali Sharma deposed that she knew accused Rekha as she was her friend. She had talk with accused Rekha with regard to the marital problem of Rekha with her husband. Accused Rekha told her that there were tensions between her and her husband and she wanted to participate in the programme launched by Kiran Bedi and also wanted divorce from her husband. She further stated that she knew accused Naveen (correctly identified by the witness) and she saw State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 22 of 129 23
him in the house of Rekha as a tutor to teach her children. She further stated that she knew husband of Rekha as Rekha told her that, her husband scolded her and had broken her mobile phone when she was talking with her sister. Accused Rekha also told her that she was very upset with her husband as he had relation with other girls and accused Rekha had read the SMS from the mobile phone of her husband. Accused Rekha also told her that Naveen was her good friend.
Leading questions were asked from her by learned APP with the permission of the court. She admitted that police inquired about the facts of the case but she did not remember that police recorded her statement or not. 12 days prior to his death, Vinod came to her house and told her that she have not to instigate his wife Rekha. He further stated that deceased Vinod came to her house and told about Rekha to her. She further stated that she do not remember that Rekha had made State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 23 of 129 24
a call from her mobile number and Naveen also talked with her at the phone of Rekha and asked her to be calm and not to worry about anything. She denied the suggestion that thereafter Naveen gave phone to Mandeep who had talked with her and was very angry at that time and told that how Vinod can scold her in this manner. She also stated that she did not remember accused Rekha had talk with Naveen Dabas for a long time in her presence and accused Rekha informed him about all harassment caused by her husband to her and accused Naveen Dabas consoled accused Rekha and told her to keep quite and not to do anything. She further stated that she did not remember whether she has stated to the police that accused Rekha committed the murder of her husband Vinod Kumar with her friends Naveen Dabas and Mandeep. She further stated that she had never seen accused Mandeep prior to today.
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 24 of 129 25
In her cross examination, she stated that she told to the police that she knew accused Naveen as she saw him in the house of accused Rekha as a tutor. She was confronted with statement Ex.PW13/PA, where it was not recorded. She further stated that distance between her house and accused Rekha was about four/five houses as her house is situated on the front side and and house of accused Rekha was situated in the back gali and the entries of both the houses were from different galis. She further stated that she it is not in her knowledge that deceased Vinod had oftenly quarrel with different persons on account of his illicit relations with various girls and their family members. She stated that she has no knowledge that many times the family members of the those girl with whom deceased Vinod had relations, used to create scene at the house of Vinod and used to threaten him of dire consequences. She stated that the police officials visited her house State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 25 of 129 26
in connection with the present case twice but she did not remember the dates.
18. PW14 Ct. Vijay deposed that on 29.9.11 he along with Inspector Lalit Kumar and other police officials reached at house of accused Rekha and accused Rekha met there. Accused Rekha confessed her relations with accused Naveen Dabas and her disclosure statement ExPW1/C was recorded by the Inspector Lalit Kumar and she was arrested vide arrest memo ExPW1/A. Thereafter at her instance one mobile phone in burnt condition was recovered from a gutter which was seized by the IO Inspector Lalit Kumar after making pulunda and sealed with the seal of LK and seized vide seizure memo Ex.PW1/D. Thereafter accused Rekha led to her house and one mobile make Samsung was recovered from her house at her instance which was seized after making pulunda and sealed with the seal of LK vide State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 26 of 129 27
Ex.PW1/E. Thereafter accused Rekha took them to village Sultanpur Dabas where accused Naveen Dabas was apprehended and arrested vide arrest memo Ex.PW14/A, his personal search was taken vide Ex.PW14/B and his disclosure statement was recorded vide Ex.PW14/C. At the instance of accused Naveen Dabas one mobile phone Make Samsung having double SIM was recovered and seized by the IO vide ExPW14/D. The accused Naveen Dabas also got recovered one jeans, one checkdar Tshirt from his house and stated that these clothes were wore by him at the time of incident which were seized by the IO vide memo Ex.PW14/E. Thereafter accused Naveen Dabas took them to the house of accused Mandeep and Mandeep was arrested by Inspector Lalit vide Arrest Memo Ex.PW14/F, his personal search was taken vide Ex.PW14/G and his disclosure statement was recorded vide Ex.PW14/H. Accused Mandeep produced one black/grey colour mobile phone make State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 27 of 129 28
Samsung which was seized vide seizure memo Ex.PW14/J. Thereafter, he produced one Pajama and one TShirt from his house and stated that he was wearing these clothes at the time of incident which were seized vide seizure memo Ex.PW14/K. Thereafter, at the instance of accused Naveen Dabas and Mandeep two knives were recovered from the bushes at the canal in the same village which seized vide seizure memo Ex.PW14/L and ExPW14/M. The sketches Ex.PW14/N and Ex.PW14/O of knives were prepared by the IO. (He correctly identified the accused). He identified the burnt mobile phones recovered from the gutter at the instance of accused Rekha as ExP3, mobile phone make Samsung ExP4, other mobile phone DUOS make Samsung as ExP5, mobile phone make Lephone ExP3, knives recovered at the instance of accused Naveen Dabas and Mandeep as ExP7 and ExP8, jeans pant ExP9 and one shirt ExP10 recovered at the instance of accused Naveen State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 28 of 129 29
Dabas, one payjama ExP11 and Tshirt ExP12 recovered at the instance of accused Mandeep.
In cross examination he stated that they reached back to the Police station at about 9 pm. They reached at Sector20 at about 10.30/11.45 am and straightaway went to the house of accused Rekha and remained there for about 3½ hours. He further stated that he cannot tell which document was prepared first and which was prepared lastly. He had signed two documents on that day which were already signed by accused Rekha. They straightaway went to the house of accused Naveen Dabas and apprehended while he was sitting in the courtyard. Other family members of accused were also present. After apprehension of accused Naveen he called Inspector Lalit Kumar and other police officials to come inside. The public persons were allowed to remain present during the proceedings at house of accused Naveen but State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 29 of 129 30
did not remember that signatures were obtained on any document of public persons or not. He also did not remember if copy of documents of seized articles from the house were supplied to the inmates of that house. He had signed only three documents in the house of accused Naveen Dabas. Throughout the proceedings accused Rekha was kept outside the house with Ct. Malti. No statement of any person present in the house was recorded in his presence in respect of seizing the clothes belonging to the accused Naveen Dabas. No statement of any neighbour was recorded to the effect that the house belonged to accused Naveen Dabas. No search of the house of accused Naveen was conducted to find out any photograph of accused in those clothes. Thereafter they reached at the house of accused Mandeep at about 4.20/4.30 pm. He along with accused Mandeep went inside the house of accused and apprehended the accused Mandeep and thereafter other State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 30 of 129 31
police officials and IO were called. Other inmates of the house were also present. Statement of any other person was not recorded to the effect that the clothes seized were of accused Mandeep. No photograph of the accused was seized wearing the said clothes. No statement of any neighbour or villager was recorded to the effect that the said house belonged to accused Mandeep. From the spot they reached within one and half hour at the spot near dry canal in the field, near the factory/godown. No person was called from the factory/godown to join the investigations. Accused persons searched for knives for some time and after sometime they gave two knives which were found buried inside the earth till its blade and its handle was outside the earth and handle become visible after removing the grass/bushes from the ground. The knives were recovered from inside the dry canal after climbing down on the bank of canal. The bank of canal were in the slight tilted position and State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 31 of 129 32
the knives were found on the side wall (natural wall of made of earth) of the canal, just above the ground of dry canal. IO had called the Crime Team to lift the chance prints from the said knives but he did not know whether any chance prints was lifted from the knives or not. He further stated that he cannot tell if any photograph of the place of recovery was taken by the Crime Team, as he came to sit in the vehicle along with accused Naveen Dabas. He denied the suggestion that he did not take part in the investigation or that anything was recovered in his presence or from the possession of accused Rekha, Mandeep and Naveen Dabas.
19. PW15 HC Pramod Kumar deposed that on 23.3.11, Inspector Lalit Kumar deposited nine sealed pulundas out of which two were having seal of SGMH Mortuary and remaining pulundas were having seal of LK. He made entry in this regard in Register no.19 which State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 32 of 129 33
he proved as ExPW15/A. Again on 29.3.11, Inspector Lalit Kumar deposited seven sealed pulandas sealed with the seal of LK and one motorcycle bearing no.DL8SND1274 make Apache and he made entry in register no.19 which he proved as ExPW15/B. Again on 15.6.11 exhibits were sent to FSL vide RC no.44/21/11 through Ct. Subhram and he proved copy of road certificate as ExPW15/C and receipt handed over to him by Ct. Subhram as ExPW15/D. In cross examination, he stated that he did not remember whether case property was deposited at 29.3.11 but he did not remember the exact time.
20. PW16 ASI Sudershan Kumar stated that on 23.3.11 at about 7.50 am he received DD no.9A ExPW10/E from Ct. Dhawa Singh. He reached at spot behind liquor shop Sector20 Rohini, Delhi where he found blood lying there. He came to know that injured was taken to SGM State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 33 of 129 34
Hospital. He left Ct. Sachin at the spot and went to SGM Hospital. He collected MLC of injured who after some time declared brought dead. In the meantime, Inspector Lalit Kumar reached there with HC Sushil and other staff. He handed over DD no.9E to Inspector Lalit Kumar who prepared rukka on DD no.9A and sent HC Sushil Kumar for registration of FIR. Inspector Lalit Kumar went to place of incident and thereafter reached at SGM Hospital. He got conducted post mortem and body was handed over to the relatives of the deceased. Autopsy surgeon handed over one pulunda to Inspector Lalit Kumar who seized the same vide seizure memo ExPW2/B. Thereafter he along with Inspector Lalit Kumar reached at PS and IO deposited the seized items in the malkhana.
In cross examination he stated that he reached at the spot at about 8.15 am. Many public persons were present at the spot at that State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 34 of 129 35
time. No statement of public person was recorded by him. I did not record the name and address of the person who informed him about the facts. The spot is visible from the residential houses and commercial shops. Thereafter he left for hospital after leaving Ct. Sachin at the spot. He reached at the hospital at about 9 am and Inspector Lalit Kumar reached at hospital at about 10 am.
21. PW17 Ct. Sukhram deposed that on 15.6.2011 he took the exhibits from malkhana at PS Begumpur and taken them to the FSL Rohini.
22. PW18 Inspector Lalit Kumar who is IO of the case deposed that on 23.3.11 on receiving the information from duty officer about murder at a park behind liquor shop, Sector20, Rohini. He along with HC Surender and driver reached at the place of incident where Ct. Sachin was present and he came to know that ASI Sudershan who State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 35 of 129 36
reached earlier had gone to SGM Hospital so he went there and met ASI Sudershan who told about the facts and handed over MLC of deceased Vinod and DD no.9A to him. He came to know that the injured Vinod was already died. He did not find any eye witness in the hospital. He inspected the dead body of the deceased and found sharp cut marks on the hips, neck portion, chest, back side and fingers. He made endorsement on DD no.9A and prepared rukka and gave to HC Sushil Kumar for registration of FIR. He along with ASI Sudershan and staff reached at the spot. He found two sleepers and blood at two places. Crime team officers also reached at the spot and took photographs and handed over report ExPW11/A. He seized the sleepers. He lifted the blood, blood earth and earth control from both the places and prepared the pulunda after sealing the same with the seal of LK. He prepared the site plan at the instance of ASI Sudershan State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 36 of 129 37
vide ExPW18/B. Thereafter he went to the SGM Mortuary where he filled inquest form ExPW18/C and prepared brief facts ExPW18/D. He recorded statement of Jasbir and Vijay Singh regarding identification of dead body and handed over the dead body the relatives after post mortem. Autopsy surgeon handed over one sealed pulunda with the seal of SGMH Mortuary containing clothes and blood samples in gauze of the deceased with sample seal which he seized vide seizure memo ExPW2/B. He deposited the same in the malkhana. Vijay Singh father of the deceased provided mobile no.9268001098 of Rekha and also provided mobile no.9810181851 of deceased Vinod. He obtained the call details both mobile phones and found that from the mobile no. 9289695980 made number of calls to the mobile phone of Rekha for long durations.
On obtaining the ownership of both mobile phones no. State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 37 of 129 38
9268001098 and 9289695980 he found that both mobile phones were in the name of accused Naveen Dabas. He examined Vijay Singh and Anjali who suspected the involvement of accused Rekha in the incident. On 29.3.11, he along with HC Raj Singh, Ct.Chand, Ct.Vijay, another Ct.Vijay and L/Ct. Malti reached at the house of accused Rekha and she confessed her involvement in the case. He arrested accused Rekha vide arrest memo ExPW1/A, took her personal search vide ExPW1/B and recorded her disclosure statement in detail vide ExPW1/C. At the instance of accused Rekha one mobile phone make Samsung bearing the no.9268001098 was recovered which he sealed after making pulunda and sealed with the seal of LK and seized vide seizure memo ExPW1/E. Thereafter accused Rekha disclosed that she was having another mobile phone bearing no.9289696849 which was given to her by accused Naveen Dabas and she used this mobile only to talk with State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 38 of 129 39
accused Naveen Dabas. She further disclosed that she had burnt the said mobile phone after the incident and had thrown the same in a nearby gutter. Thereafter accused Rekha got recovered one mobile phone in almost burnt condition from the gutter near divider of Sector2021 of Rohini. He sealed the burnt mobile phone after making pulunda with the seal of LK and seized vide seizure memo ExPW1/D. Thereafter at the instance of accused Rekha he reached at village Sultanpur Dabas and she identified the house of accused Naveen Dabas and at her instance accused Naveen Dabas was arrested vide arrest memo ExPW14/A. His personal search was taken vide ExPW14/B and his disclosure statement was recorded vide memo ExPW14/C. Thereafter accused Naveen Dabas handed over one mobile no.9289695980 and said mobile phone was also having another Sim card. He sealed the same after making pulunda with the seal of LK State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 39 of 129 40
and seized vide seizure memo ExPW14/D. Accused Naveen Dabas produced one jeans pant and one strips shirt from the almirah of his house having blood stains and told that at the time of incident, he was wearing these clothes. He sealed the same after making pulunda with the seal of LK and seized vide seizure memo ExPW14/E. Accused Naveen Dabas got recovered one motorcycle bearing no.DL8SND 1274 from the courtyard of his house which he seized vide seizure memo ExPW18/F. Thereafter we along with accused Naveen Dabas reached at the house of accused Mandeep and at the instance of accused Naveen Dabas accused Mandeep was arrested vide memo ExPW14/F , his personal search was taken vide ExPW14/G and his his disclosure statement was recorded vide memo ExPW14/H. Thereafter accused Mandeep produced one grey colour payjama and one Tshirt having blood stains and accused disclosed that he was wearing these clothes State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 40 of 129 41
at the time of incident. He kept the clothes in a cloth pulunda and sealed the same with the seal of LK and seized the same vide seizure memo ExPW14/K. Accused Mandeep also gave one mobile phone having two SIM which he seized vide seizure memo ExPW14/J. Thereafter at the instance of accused Naveen Dabas and Mandeep they reached near Sukhi Nehar, Karala Pooth Khurd village from where accused Naveen Dabas took out one knife from the bushes near Sukhi Nehar and he prepared the sketch vide ExPW14/N and kept the knife in a cloth pulunda and sealed the same with the seal of LK and seized the same vide memo ExPW14/M. Thereafter accused Mandeep took out one knife from the bushes near Sukhi Nehar and he prepared the sketch vide ExPW14/O. He kept the knife in a cloth pulunda and sealed the same with the seal of LK and seized the same vide memo ExPW14/L. Thereafter he reached at place of incident and at the instance of State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 41 of 129 42
accused Naveen Dabas and Mandeep he prepared the pointing out memos vide ExPW18/G and ExPW18/H. He deposited the seized articles in the malkhana and got prepared the scaled site plan. He took opinion of the autopsy surgeon regarding the knives. On 7.6.11, after showing him pulunda of knives and sent the exhibits of this case to the FSL. He proved the FSL biological report as ExPW18/J and serological report ExPW18/K. He collected the ownership documents and call details of mobile no.9268001098 vide ExPW18/L and of mobile no. 9289695980 vide ExPW18/M and of mobile no.9289696849 vide ExPW18/N. He also collected the MLC of deceased ExPW18/O. He identified the case property recorded at the instance of accused persons.
In cross examination, he admitted that DD no.9A was recorded by ASI Sudershan and he reached at the spot before him. ASI State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 42 of 129 43
Sudershan informed him that 23 public persons committed the crime of the deceased and ran away. ASI Sudershan also told him that public persons who told him about the incident, had actually seen the incident and voluntarily said that ASI Sudershan told the assailants were muffled facts but he did not mention these facts in details charge sheet but voluntarily stated that he had mentioned these facts in case diary. He denied the suggestion that he intentionally withheld the eye witnesses from the court in order to falsely implicate the accused persons. He admitted that deceased was in the business of financing and sale purchase of the vehicles. He has also investigated as to if there was any dispute regarding the business of the deceased. Anjali did not state to him that deceased was having affair with various girls. He also verified whether there was any dispute in the family of deceased with regard to property. He stated that accused Rekha was interrogated in the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 43 of 129 44
presence of L/Ct. Malti and other police officials. The brother of accused Rekha was also present in that room. He further deposed that he did not know if the name of daughter of accused Rekha is Preeti or she is about 1516 years of age. The mobile phone recovered at the instance of accused Rekha from the gutter situated at a distance of about 500600 mts. from the house of Rekha but he did not send the bunt mobile to expert opinion to find out that it was a mobile phone or any other electronic instrument and voluntarily stated that it was visible that it was a mobile phone.
He further deposed that he himself apprehended accused Naveen Dabas first and conducted interrogation in the veranda itself. Many public persons were gathered there but they were not asked to join the investigation. He did not provide any copy of seizure memos of articles seized from the house of accused Naveen Dabas. They refused State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 44 of 129 45
to sign on the seizure memos. No notice was served to them for their refusal.
They reached at the house of accused Mandeep at about 4.30 pm. Many public persons were present there but they were not asked to join the investigation. He did not obtain the signatures of family members of seizure memo of the articles seized from the house of accused Mandeep. They refused to sign on the seizure memos. No notice was served to them for their refusal.
They reached near Sukhi Nehar, Karala, Pooth Khurd village after 4045 minutes and remained there for about 30 minutes. Knives were recovered at the instance of accused from bushes at a distance of one meter from the Sukhi Nehar. He did not prepared the site plan of place of recovery of knives. There was no water in the sukhi Nehar. They crossed the sukhi Nehar from Sultanpur Dabas side and thereafter State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 45 of 129 46
turned right for the place of recovery. The place of recovery was at a distance of about 1012 steps after crossing the Nehar. He did not call the finger print expert and crime team to lift the chance prints from the knives. He admitted the suggestion that in the first statement made by Vijay Singh and Jasbir they did not point out any suspicion on accused Rekha. He denied the suggestion that accused Rekha was not having good relations with her father in law and brother in law. He admitted that in mobile phone ExP3 neither IMEI number was visible nor SIM was recovered. He denied the suggestion that accused were falsely implicated in the case.
23. Besides this learned defence counsels have admitted the FormI prepared by the Police Control Room which is ExPX.
24. Statement of all the accused were recorded u/s 313 Cr.P.C.
in which all the incriminating evidence were put to them which they State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 46 of 129 47
denied. In her statement u/s 313 Cr.P.C. accused Rekha stated that her` husband was not having good relation with Vijay Singh. She denied that phone no. 9268001098 was used by her but she stated that same was used by her children Preeti, Simran and Shivam. She admitted that mobile phone no.9810181851 was of her husband and she stated that accused Naveen was tutor at her house and was teaching her children. She further stated that she had no talking terms with Anjali as her husband Yogesh Sharma had taken loan from her husband Vinod. She further stated that Vijay Singh (father of deceased) had told a false story as he is interested in selling her house. In response to question that mobile phone no.9289696849 is in the name of accused Naveen Dabas she stated that she do not know.
25. Accused Naveen Dabas in statement u/s 313 Cr.P.C. stated that mobile phone no. 92680001098 was in his name and deceased State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 47 of 129 48
Vinod had given him money to purchase the same for his daughter Preeti to whom he was giving tuition. He denied his friendship with co accused Rekha and stated that he has only professional relation with the family of the deceased. In response to question that coaccused Rekha was in continuous contact with him on mobile phone no. 9289696849, he denied the same and further stated that said phone was given by him to his girlfriend residing in Sector20, Rohini and with her he used to talk on his mobile phone. In response to question that knife was recovered at his instance he stated that he was detained at PS on 27.3.11 and in the morning of 29.3.11 he was forced to sign on some blank papers.
26. Accused Mandeep denied all the incriminating evidence put to him. He denied that at his instance one knife was recovered. He stated that he was detained in PS on 27.3.11 till 29.3.11 and on 29.3.11 he was asked to sign on some blank papers.
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 48 of 129 49
27. Accused Naveen Dabas and Mandeep did not prefer to lead defence evidence. In her statement u/s 313 Cr.P.C., accused Rekha had stated that she wanted to lead defence evidence but she did not lead any evidence in defence.
28. Arguments heard from Shri S.C. Sroai, Addl.PP for State and Shri Kundan Kumar, Advocate for accused Naveen Dabas and Mandeep and Shri Prashant Sharma, Advocate for accused Rekha. Record perused.
29. Learned Addl.PP argued that case of the prosecution is based on circumstantial evidence and from the statement of witnesses prosecution has been able to establish the complete chain of circumstances which proved guilt of accused beyond reasonable doubt. He argued that from the testimonies of PW13 Anjali and PW6 Vijay Singh it is proved that accused Rekha had illicit relationship with State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 49 of 129 50
accused Naveen Dabas which is also proved from the call details of mobile phone no. 9289695980, 92680001098 and 9289696849. He submitted that from the testimony of PW12 Gaganjeet Singh Sindhu, Nodal Officer Tata Tele Services Ltd., it is proved that all these three mobile phones are in the name of accused Naveen Dabas. He furtehr argued that out of these, two mobile phones were given by him to accused Rekha for use which proved that he had illicit relationship with accused Rekha and he continued spoken with accused Rekha. He further argued that from the call details, it is proved that accused Naveen and Rekha were in continuous contact prior to incident and after the incident, accused Rekha helped in providing complete details of deceased Vinod to accused Naveen. Hence their conspiracy is proved. He further argued that recovery of weapon of offence i.e knives at the instance of accused Naveen and Mandeep proved that they were State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 50 of 129 51
involved in the crime. Hence accused persons are liable to be convicted for the murder of deceased Vinod.
30. On the other hand, the counsels for accused Naveen, Mandeep and Rekha argued that the prosecution has failed to prove the case beyond reasonable doubt against the accused persons and the case is based on circumstantial evidence and whatever circumstantial evidence appeared from the evidence is that all the accused persons were knowing each other and nothing else. He further argued that no eye witness was joined in the investigation by the IO despite their availability and no knife was recovered from their possession and the alleged recovery of clothes, knives are not material as blood of deceased was not found on them to prove that they were used at the time of commission of crime. Hence the chain of circumstantial evidence is completely broken. Therefore, all the accused are entitled to State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 51 of 129 52
acquittal.
FINDINGS
31. The case of the prosecution is that deceased Vinod and accused Rekha were husband and wife and accused Rekha had illicit relation with accused Naveen due to which deceased Vinod was very angry with Rekha and scolded her. Hence accused Rekha and Naveen Dabas conspired to eliminate deceased. The accused Mandeep who is a friend of accused Naveen also joined. Accused Rekha facilitated accused Naveen in commission of crime by providing information about her husband on 23.3.2011 and accused Naveen and Mandeep came on a motorcycle and caused multiple injuries with knives on Vinod due to which he expired later on.
32. Before appreciating the evidence it would be appropriate to go through the relevant provisions under which accused have been State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 52 of 129 53
charged.
33. Section 299 IPC deals with culpable homicide. It reads as under :
299. Culpable Homicide : Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 299 has following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death; or
iii)with the knowledge that the doer is likely by such act to cause death.
34. Section 300 IPC deals with murder. It reads as under :
300. Murder : State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 53 of 129 54
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
35. In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 54 of 129 55
act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
36. Section 302 IPC deals with punishment for murder. It reads as under :
302. Punishment for Murder : Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 55 of 129 56
37. Conspiracy is also the primary charge against the accused.
Section 120A defines "criminal conspiracy" as under: "Definition of criminal conspiracy When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
38. It is clear from the above noted definition of „criminal conspiracy‟ that the three essential elements of offence of conspiracy are (a) a criminal object, which may be either the ultimate aim of the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 56 of 129 57
agreement, or may constitute the means, or one of the means by which that aim is to be accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is an agreement to break the law.
39. Sections 120A and 120B were brought on the statute book by way of Criminal Law Amendment A ct, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120A & State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 57 of 129 58
B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable.
40. Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under: "10. Things said or done by conspirator in reference to common design:Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 58 of 129 59
41. Thus, the substantive section of the IPC i.e. Section 120A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof.
42. In Rakesh Kumar & Ors. V State, CRL. A 19/2007 dated 27.8.2009 it was observed in para 134 of judgment : "After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled out: A. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (See the decision of Supreme Court reported as State v Nalini (1999) State V Mandeep & Ors.
FIR No.68/11 PS Begumpur Page No. 59 of 129 60 5 SCC 253) B The very agreement, concert or league is
the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 60 of 129 61
only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (See the decisions of Supreme Court reported as Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v Nalini (1999) 5 SCC 253) .
C It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 61 of 129 62
D The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do or cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to d o or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 62 of 129 63
antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v State AIR 1988 SC 1883) E A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 63 of 129 64
attempted or even frustrated and vice versa.
F Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the coconspirators. In short, the section can be analyzed as follows:
(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy;
(2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other;
(3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them;
(4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a coconspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul State V Mandeep & Ors.FIR No.68/11 PS Begumpur Page No. 64 of 129 65
Singh v State of Maharashtra AIR 1957 SC 747.) CIRCUMSTANTIAL EVIDENCE
43. No eye witness in the case has been cited as witness by the prosecution. Hence the case of the prosecution is entirely based on circumstantial evidence. I do not find any force in the contention of ld. Counsel for accused that since eye witnesses were not deliberately examined by the prosecution despite their availability therefore the case of prosecution is failed. Undoubtedly PW16 ASI Sudershan Kumar had stated in cross examination that on enquiry from public persons what has happened, they replied that one person came for walking with his dog and 23 persons came and attacked on him and fled away. PW18 Inspector Lalit Kumar has also admitted that ASI Sudershan informed him that public persons who were eye witnesses and actually seen the incident met ASI Sudershan but he has also explained that since ASI State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 65 of 129 66
Sudershan informed him that public persons told him that they were muffled face, therefore, he did not join the public persons as witnesses. In reply to question that he has not mentioned this fact in the charge sheet, he explained that he had mentioned the same in the case diary. I have perused the case diary, in which it is mentioned that public persons told ASI Sudershan Kumar that assailants were muffled face. I am agree with the contention of ld. Defence counsel that ASI Sudershan should have noted down their names and addresses of the public persons and IO should have examined them. But in my view merely on this ground entire prosecution case cannot be thrown away. If assailants were muffled face, in that situation, even if eye witnesses would have been examined, they would not have been in position to depose much details about the assailants as assailants were muffled face. Hence, even if eye witnesses would have been State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 66 of 129 67
examined by the IO, it would not have made much difference as the identity of assailants would have to be established through circumstantial evidence.
44. The conviction can be based solely on circumstantial evidence. It should be tested by the principles relating to circumstantial evidence. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusions drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 67 of 129 68
innocence of the accused and bring the offender home beyond any reasonable doubt.
In Sharad Birdhichand Sards V State of Maharashtra, AIR1984SC1622 while dealing with circumstantial evidence, it was held that onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. Before conviction based on circumstantial evidence, the following condition precedent must be established :
i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
iii)the circumstances should be of a conclusive nature and tendency;
iv)they should exclude every possible hypothesis State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 68 of 129 69
except the one to be proved; and
v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
45. The Hon'ble High Court in Rakesh V State of NCT of Delhi, (Supra) it is held as under :
136. The well known rule governing circumstantial evidence that : (a) the circumstances from which the inference of guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances; (b) the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (c) the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him, is fully applicable in cases of proof of conspiracy. The courts have added two riders to aforesaid principle; namely, (i) there should be no missing links but it is not that every links must appear on the surface of the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 69 of 129 70
evidence, since some of these links can only be inferred from the proved facts and (ii) it cannot be said that the prosecution must meet any and every hypothesis put forward by the accused however far fetched and fanciful it may might be (see the decision of Supreme Court reported as Gagan Kanojia v State of Punjab (2006) 13 SCC 516).
137. The question which arises for consideration is, what does the expression "proved beyond reasonable doubt" occurring in the aforenoted cardinal rule of circumstantial evidence signify. Does it mean that the prosecution is required to prove.
138. The answer to the aforesaid question can be found in the following observations of Supreme Court in the decision reported as Lal Singh v State of Gujarat AIR 2001 SC 746: "The learned Sr. Counsel Mr. Sushil Kumar submitted that prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that prosecution has to prove the case with a hundred percent certainty is myth. Since last many years the nation is facing great stress and strain because of misguided militants and cooperation to the militancy, which has affected the social security, peace and stability. It is common knowledge that such terrorist activities are carried out State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 70 of 129 71
with utmost secrecy. Many facts pertaining to such activities remain in personal knowledge of the person concerned. Hence, in case of conspiracy and particularly such activities, better evidence than acts and statements including that of coconspirators in pursuance of the conspiracy is hardly available............. For assessing evidence in such cases, this Court in Collector of Customs, Madras & Others v. D. Bhoormall AIR 1974 SC 859 dealing with smuggling activities and the penalty proceedings under Section 167 of the Sea Customs Act, 1878 observed that many facts relating to illicit business remain in the special or peculiar knowledge of the person concerned in it and held thus:
"30. .. that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it "all exactness is a fake". E1 Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this workaday world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, State V Mandeep & Ors.FIR No.68/11 PS Begumpur Page No. 71 of 129 72
believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case......" (Emphasis supplied)
139. The Evidence Act does not insist upon absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of 'proved' does not draw any distinction between circumstantial and other evidence. The use of expression "determinative tendency‟ in the aforenoted rule also seconds the view that the prosecution is not required to adduce such evidence which absolutely proves the guilt of an accused person. Thus, circumstantial evidence in order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man considering all the facts, feels justified in holding that the accused has State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 72 of 129 73
committed the crime. (See the decisions of Supreme Court reported as State of Maharashtra v Mohd. Yakub AIR 1980 SC 1111 and Gokaraju Venkatanarasa Raju v State of AP (1993) Supp (4) SCC 191) 140.
The approach to be adopted by the courts while appreciating circumstantial evidence was succinctly stated by Supreme in the decision reported as M.G.Agarwal v State of Maharashtra AIR 1963 SC 200 in following terms: "It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 73 of 129 74
appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt."
The answer to the aforesaid question can be found in the following observations of Supreme Court in the decision reported as Lal Singh v State of Gujarat AIR 2001 SC 746 : "The learned Sr. Counsel Mr.Sushil Kumar submitted that prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that prosecution has to prove the case with a hundred percent certainty is myth. Since last many years the nation is facing great stress and strain because of misguided militants and co operation to the militancy, which has affected the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 74 of 129 75
social security, peace and stability. It is common knowledge that such terrorist activities are carried out with utmost secrecy. Many facts pertaining to such activities remain in personal knowledge of the person.
46. The question needs consideration is, what does the expression 'proved beyond reasonable doubt' in case rest on circumstantial evidence signify. It does not mean that the prosecution is required to prove its case with hundred percent certainty. The Evidence Act, 1872 does not insist upon absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. As per Section 3 of the Evidence Act, 1872 a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 75 of 129 76
supposition that it exists. The definition of 'proved' does not draw any distinction between circumstantial and other evidence. Thus, circumstantial evidence in order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man considering all the facts, feels justified in holding that the accused has committed the crime.
47. From the perusal of chargesheet I found that the prosecution has relied upon the following circumstances against the accused persons to prove their guilt: i. The death of deceased Vinod by multiple stab wounds caused by knives.
ii. That accused i.e Rekha and Naveen had illicit relationship which was not liked by her deceased husband due to which deceased was killed by accused Naveen and Mandeep in conspiracy with accused Rekha.
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 76 of 129 77
iii. The call details of phone no. 9289696849 used by accused Rekha and 9289695980 used by accused Naveen to prove that they were in illicit relationship with each other.
iv. The call details of aforesaid mobile phones to prove that on the day of incident accused Rekha provided complete details of activities of deceased Vinod to accused Naveen which facilitated accused Naveen and Mandeep in attacking the deceased Vinod. v. The call details of aforesaid mobile phones to prove the presence of accused Naveen and Rekha at or near the spot i.e Sector20, Rohini.
vi. The recovery of burnt mobile phone at the instance of accused Rekha from the gutter.
vii. The recovery of blood stained clothes at the instance of accused Naveen and Mandeep which they were wearing at the time of commission of crime.
viii.The recovery of blood stained clothes from accused Naveen and Mandeep.
ix. The recovery of weapon of offence i.e knives which State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 77 of 129 78
were allegedly used in the commission of crime at the instance of accused Naveen and Mandeep.
x. The report of FSL proved that recovered knives were having human blood.
xi. Postmortem report and subsequent opinion to prove that murder was caused by the knives recovered from accused.
xii. Postmortem of place of incident by accused Naveen and Mandeep.
POSTMORTEM & SUBSEQUENT OPINION
48. In order to prove that deceased has been murdered by stab injury, the prosecution has relied upon testimony of PW7 Dr. Manoj Dhingra who proved the PM Report ExPW7/A. He deposed that he and Dr. Deepak had conducted the post mortem on the dead body of deceased Vinod on 23.3.11. On perusal of PM Report ExPW7/A, it is found that deceased has suffered following injuries : State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 78 of 129 79
i. Stab wound 3.2 cm X 0.9 cm X 3.8 cm (deep) over back of right side of chest, single edged, obliquely placed sharp edge upward, 15.0 cm below posterior hairline.
ii. Stab wound 3.6 cm X 1.2 cm obliquely placed, single edged, sharp edge below and right side, injury is present over back of left side of chest in mid clavicular line. 27.5 cm below to mid clavicular line and 4.5 cm left to mid line. On fine dissection is has cut the underlying subeutaneous tissue and muscles of abdominal cavity and cutting part of the mesentery and pancreas in abdominal cavity, approximately 10.5 cm deep.
iii. Cut throat injury horizontally present over front of neck with tailing toward the left side 15.0 cm long 2.5 cm maximum width exposing underlying muscles, subeutaneous tissue and fat.
iv. Stab wound in front of the chest at mid line 24.0 cm below sternal notch, obliquely placed single edge, sharp edge placed upward and right side. The injury is 6.5 cm X 2.6 cm into cavity deep, 10.6 cm above umbilicus.
v. Incise wound 2.0 cm X 0.5 cm into muscle deep over right middle phalanx of right hand.
vi. Stab wound 3.0 cm X 6.0 cm into cavity deep single edge sharp edge towards left side, present over left iliac fossa.
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 79 of 129 80
vii. Stab wound over left thigh 18.0 cm below the injury number 6, injury is 4.5 cm X 2.2 cm into muscle deep, sharp edge upward.
49. Since PW7 has opined that these injuries caused by multiple stab wound by sharp object are sufficient to cause death in ordinary course of nature. Hence it is proved that these injuries are caused to deceased Vinod with the intention to kill him. Hence it is proved that he has been murdered.
MOTIVE
50. Section 8 of the Evidence Act, 1872 says that facts which show a motive for any facts in issue or relevant facts, are relevant. In a case resting on circumstantial evidences, motive bears important significance. Motive always locks up in the mind of the accused. Motive is the inducement for doing an act. People do not act wholly without State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 80 of 129 81
motive. The evidence of motive becomes important once a crime is committed. The evidence of the existence of a motive is admissible. Motive is sometime difficult to unlock. The existence of motive assumes significance but the absence of motive does not necessarily discredit the prosecution case. The proof of motive is never an indispensable for conviction. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
51. It was observed in case State of U.P. V Babu Ram, 2000 (11) AD 285 as under : No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 81 of 129 82
record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.
52. As per the prosecution case motive behind murder of deceased Vinod is that his wife Rekha i.e accused no.1 and Naveen accused no.2 have illicit relationship. In order to prove the same, prosecution has relied upon the testimonies of PW6 Vijay Singh and PW13 Anjali Sharma. The testimony of PW13 Anjali Sharma is very important. She deposed that she knew accused Rekha being her neighbour. She had talk with accused Rekha with regard to the marital problems of accused Rekha with her husband. Rekha told her that there were tensions between her and her husband. Rekha also wanted to divorce with her husband. She also told that accused Rekha's husband State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 82 of 129 83
had broken the mobile of Rekha as she was talking with her sister. Accused Rekha was also upset with her husband as he had relation with other girls. Rekha also told that Naveen was her good friend. She also told that she know accused Naveen (correctly identified him) as he used to teach the children of accused Rekha. She was declared hostile by learned Addl.PP as she did not disclose complete facts stated by her in statement u/s 161 Cr.P.C. In cross examination by learned Addl.PP she admitted that police inquired from her but she stated that she do not remember whether police recorded her statement or not. She admitted that on or two days before his death deceased Vinod came to her home and told her not to instigate his wife Rekha and she informed the said fact to Rekha. She further stated that she do not remember whether she told to the police that Rekha has made call to the Naveen from her mobile and Naveen talked with her on the mobile phone of Rekha and State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 83 of 129 84
asked her to be calmed and not to worry about anything. But she denied the suggestion that Naveen also gave phone to Mandeep who also talked with Rekha and was very angry and told her how Vinod can scold her (Anjali). She also says that she do not remember whether she stated to the police that she has suspicion that accused Rekha with co accused Naveen and Mandeep committed a murder of Vinod. She did not disclose aforesaid facts or she had some soft corner toward accused Rekha and she wanted to save her as admitting this incident would directly connected the connivance of accused Rekha, Naveen with the murder of deceased Vinod.
53. In her cross examination by learned defence counsels no suggestion has been given to her that she was not the friend of accused Rekha. In her cross examination by learned defence counsel she stated that her house was at a distance of 45 houses from the house of Rekha State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 84 of 129 85
though entry of both the houses were from different galis. Further she stated that she has no knowledge that deceased Vinod had often quarreled with different person on account of illicit relationship with different girls. She also stated that she has no knowledge that deceased Vinod had some quarrel on the issues of finance with his partner.
54. Though, PW13 turned hostile and was cross examined by learned Addl.PP on this ground her testimony could not be discarded completely. In this regard, I rely upon judgment Mrinal Dass V State of Tripura, AIR 2011 SC 3753. In para 42 of said judgment it is held :
In the case on hand Ganesh Kol (PW2) Satyendra Tanti (PW9), Ramakanta Paul (PW10) and Prabhir Biswas (PW12) were declared as hostile witnesses. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was State V Mandeep & Ors.FIR No.68/11 PS Begumpur Page No. 85 of 129 86
declared hostile at the instance of the Public Prosecutor and he was allowed to crossexamine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any wight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.
55. In view of aforesaid case law, in my view the testimony of PW13 Anjali Sharma can be relied to the extent it supported the case of State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 86 of 129 87
the prosecution. On perusal of testimony of PW13 Anjali Sharma it is proved that accused Rekha had friendly relationship with the accused Naveen who used to come to her house for giving tuition to her children. It is also proved from her testimony that accused Rekha and deceased Vinod had tensions in their matrimonial life due to which deceased Vinod had scolded accused Rekha. Deceased Vinod also asked PW13 Anjali Sharma not to instigate Rekha and Rekha complaint to Naveen and Naveen asked PW13 Anjali Sharma to keep calm. However as far as accused Mandeep is concerned since PW13 Anjali Sharma had not meet him hence it is not proved that the other person with whom Rekha had conversation was accused Mandeep. There is no reason why PW13 Anjali Sharma deposed falsely about accused Rekha who is her friend and neighbour. No question has been asked from her by defence counsel of accused persons that Anjali Sharma was not known to State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 87 of 129 88
accused Rekha or she was not her friend or that she had not discussed her marital problem with Anjali Sharma. It is settled law that when a fact is not disputed in cross examination is stand admitted.
Further I am agree with the contention of learned Addl.PP for State that with regard to conversation held by her with accused Naveen and Mandeep. PW13 Anjali Sharma had given evasive reply. She has admitted in her cross examination by Ld. Addl.PP that one or two days before his death, Vinod came to her house and told him not to instigate Rekha and she told to Rekha about arrival of Vinod. However she stated that she do not remember Rekha made a call to Naveen. Naveen asked her to be calm and Mandeep also talked to her and said how he can scold her. She was confronted with the statement u/s 313 Cr.P.C. ExPW13/PA. She stated that she do not remember. No person can forget such an important incident. It appears that she was under
State V Mandeep & Ors.FIR No.68/11 PS Begumpur Page No. 88 of 129 89
some kind of pressure from accused due to which she gave evasive reply. Hence I find her statement u/s 161 Cr.P.C. with regard to above said facts believable. In this regard I rely upon Bhagwan Dass V NCT of Delhi AIR 2011 (SC) 1863, wherein Hon'ble Supreme Court relied upon the statement of Smt. Dillo Devi given to the police despite the fact she turned hostile. Hon'ble Justice relied the statement in view of proviso 162(1) and held that "we are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of proviso to Section 162(1) Cr.P.C. and her subsequent denial in court is not believable because she obviously had afterthought and wanted to save her son from punishment." In this case position is much better.
PW13 Anjali Sharma had not denied her statement given to the police but she had only stated that she do not remember.
56. Prosecution has also relied upon testimony of PW6 Vijay State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 89 of 129 90
Singh to prove that deceased Vinod had suspicion over the character of his wife Rekha. He has deposed that accused Rekha was not good. He further deposed that few days prior to the incident he had visited the house of Vinod who told him that character of Rekha is not good and she told to deceased that he should have concern with his own work otherwise she will teach him (Vinod) a lesson. Nothing has come out from his cross examination which could falsify his testimony. Accused persons tried to discredit his testimony by giving suggestion that he was interested in the property of deceased. But he denied the suggestions that he took possession of the house of deceased. He admitted that motorcycle of the deceased is with him but he has given proper explanation for this that he has objection that belonging of deceased be taken by mother of accused Rekha which is quite natural as accused Rekha has killed his son. He also stated that he was interested in State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 90 of 129 91
custody of children of Rekha but her mother refused to give custody on the pretext of poor living standard in the village. In his cross examination he stated that quarrel took place on the aspect of "tuition wala larka". He denied the suggestion that police told him that accused Naveen used to give tuition to the children of deceased Vinod. Testimony of PW6 Vijay Singh is corroborated from call details of mobile number 9268001098 ExPW12/H which proved that PW6 Vijay Singh or his wife talked on the mobile from mobile no.9991229033 on 13.2.11 for 25 seconds and on further call was made by him or his wife on 4.3.11 from mobile phone no.9671166363. Witness deposed that he or his wife used to talk with Rekha on her phone from their phone no.999122993, 9991227033 and 96711155763. no suggestion has been given that these phones are not of witness or accused Rekha did not talk on phone no. 9268001098 with them. It also proved that PW6 Vijay Singh and State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 91 of 129 92
accused Rekha did not have enmity prior to the incident. May be they do not have very good relation, but this does not mean PW6 Vijay Singh will falsely implicate accused Rekha in the murder of his son. He know if he will do so, then real culprit will go scot free. No father will like real culprit of murder of his son go scot free. Hence I do not find any reason that he will depose falsely against accused Rekha.
57. The call records of three mobile numbers 9268001098, 9289696849 and 9289695980 also proved that accused Naveen and accused Rekha were in close contact. The Call details proved by PW12 Gaganjeet Singh Sidhu, Nodal Officer, Tata Teleservices Ltd. as ExPW12/H, ExPW12/C and ExPW12/L respectively. He also proved the certificate u/s 65 B issued with respect to call details of mobile phone no. 9289696849 as ExPW12/D and of aforesaid other two mobile phones as ExPW12/M. Further he has proved the ownership record of aforesaid State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 92 of 129 93
mobile phone by proving Customer Application Forms ExPw12/A, ExPW12/F and ExPw12/J. As per the ownership record, all these mobile phones pertains to Tata Tele Service Ltd. and all are in the name of accused Naveen Kumar the fact which is even admitted by the accused Naveen in his statement u/s 313 Cr.P.C.
58. As per the prosecution case, mobile phone no.
9268001098 and 9289696849 were in the name of accused Naveen Dabas but was used by accused Rekha and same were given by accused Naveen to accused Rekha as they have illicit relationship. As far as phone no.9268001098, it is stated by accused Naveen in his statement u/s 313 Cr.P.C. that said phone was given by him to Ms.Preeti d/o accused Rekha at the instance of deceased Vinod as he was giving tuition to him who gave money for purchasing the same.
59. This defence does not appear to be much reliable. Even if State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 93 of 129 94
deceased Vinod had given the money to him to purchase the mobile, accused has failed to explain why he has purchased the mobile connection in his name. It could be understand had he purchased only mobile handset but purchasing mobile connection in his name is going too far. This is only possible when the accused Naveen had some serious relation other then tutor and student relation. Hence defence of purchasing the phone for Preeti D/o Rekha appears to be an afterthought to disprove relation with accused Rekha. As stated above, testimony of PW6 Vijay Singh proved that he used to talk with accused Rekha on the mobile no.9268001098. No suggestion has been given on behalf of accused Rekha that PW6 Vijay Singh or her mother in law did not talk with her on the said phone. Accused had not examined Preeti to prove that phone was given to her or that accused Rekha had not used the same for conversation with accused Naveen. Therefore it is proved State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 94 of 129 95
that phone no.9268001098 was used by accused Rekha. Further call details of said phone proved that accused Naveen used to have long conversation almost daily. For what purpose he used to have such long conversation both accused Naveen and Rekha have failed to explain. The only plausible explanation appears to be that they were having relationship with each other.
60. As per prosecution case the mobile phone no.9289696849 was given by accused Naveen Dabas to accused Rekha for exclusive conversation so that nobody could know about their relationship. The prosecution in order to prove that phone no.9289698489 was exclusively used by accused Rekha to talk with accused Naveen Dabas has relied upon the CDR of said phone ExPW12/C. Learned APP argued that the said mobile phone handset was burnt by accused Rekha after the murder of her husband to prevent the recovery of said phone and thrown State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 95 of 129 96
it in the gutter and the cell phone was later on recovered at her instance from the gutter. In this regard the prosecution relied upon the seizure memo of said phone ExPW1/D. The said burnt phone was also identified by PW1 W/Ct. Malti, PW2 Ct. Sachin, PW14 Ct. Vijay and PW18 Inspector Lalit Kumar as ExP3 who deposed that same was recovered from the gutter at the instance of accused Rekha. Accused Naveen in his statement u/s 313 Cr.P.C. has taken the defence that he has given the phone no.9289698489 to his girl friend who was residing in Sector20, Rohini, Delhi. The call details ExPW12/C of said mobile phone proved that said phone was exclusively used to talk with phone no. 9289695980. The onus to prove who was using the said phone was on accused Naveen Dabas as the said phone was registered in his name. As per Section 106 of Indian Evidence Act, when a fact is exclusively in the knowledge of any person then burden to prove that fact is upon him. State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 96 of 129 97
But in order to discharge the said onus accused Naveen did not examine any witness. In cross examination PW1 W/Ct. Malti, PW14 Ct. Vijay or PW18 Inspector Lalit Kumar in whose presence burnt mobile phone alleged to be phone no. 9289695849 was recovered. But no suggestion was given that the recovered phone was not the phone no. 9289695849 and said phone is given by him to his girl friend and still in existence. If the phone ExP3 was not the phone no.9289696849 then accused Naveen has to explain where the said phone has gone after the day of incident. The call details of said phone proved that after 23.3.11 no call was made from the said phone. Further if he had given the phone to his girl friend who was residing in the Sector20, Rohini then he could examine his girl friend to prove that the handset and SIM is with her or at least through someone he could have produced that phone and SIM in evidence to disprove the evidence of prosecution that burnt mobile State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 97 of 129 98
phone ExP3 is not the mobile number 9289696849, if he does not want to disclose the identity of his girl friend. Mere taking the defense that phone was with his girl friend is not sufficient. The onus is on accused Naveen to prove the defense. Accused Naveen did not lead any evidence. Taking a defense and not proving the same is a circumstance which goes against the accused. Further call details of accused Rekha phone no. 9268001098 proved that on 10.2.11 three call were made from mobile number 9289696849 which means accused Rekha also knew the person who was using the mobile number 9289696849 at that time, therefore she has no reason not to disclose the name of the Naveen's girl friend if it was used by Naveen's girlfriend. Therefore in such circumstances, I held that the prosecution has been able to prove that the burnt handset ExP3 was the phone no.9289696849 which was used by accused Rekha for exclusive conversation with accused State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 98 of 129 99
Naveen. Hence the testimony of PW6 Vijay Singh and PW13 and the call details of mobile phone number proved beyond reasonable doubt that accused Naveen and accused Rekha have very close relationship which is not liked by the deceased Vinod and due to which deceased Vinod scolded accused Rekha. Thus they have very strong motive to kill deceased Vinod.
PRESENCE OF ACCUSED NAVEEN AND REKHA AT THE SPOT
61. The spot where the deceased Vinod was stabbed is not disputed. It is an open plot/park situated behind liquor shop in Sector20, Rohini. PW16 ASI Sudarshan Kumar deposed that on receiving DD no.9A ExPW10/E he reached at the place of incident behind liquor shop, Sector20, Rohini, Delhi where he found some blood was lying. The site plan of the spot ExPW18/B also proved that spot was on vacant plot/park at A4 Block, Sector20, Rohini, Delhi. Most State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 99 of 129 100
importantly accused Rekha replied in answer to question no.3 that she has told to the PCR officials that some one had stabbed her husband near her house as the same was told to her by public persons gathered at the spot. Accused Rekha is residing at A4/173, Sector20, Rohini.
There is no eye witness to the incident who has seen the accused persons at or near the spot. But on perusal of call details of phone no. 9289695980 ExPW12/L and mobile number 9289696849 ExPW12/C, it is evident that both were present in Sector20, Rohini at the time of incident. The following phone calls were made from the mobile phone no. 9289695980 to phone no. 9289696849 : Mobile no. Mobile no.
9289695980 9289696849 Cell ID1 Cell ID2 Date Time duration Cell ID1 Cell ID2 29586 29586 22.3.11 20.46.18 844 28048 28048 29586 29586 22.3.11 22.00.08 1270 28048 28048 29586 29586 23.3.11 4.51.11 1800 28048 28048 State V Mandeep & Ors. FIR No.68/11 PS Begumpur Page No. 100 of 129 101 29586 29586 23.3.11 5.21.11 1800 28048 28048 29586 29586 23.3.11 5.55.11 1159 28048 28048 28064 28048 23.3.11 6.52.16 1800 29107 28048 28064 28048 23.3.11 7.22.16 907 29107 28048 29586 29586 23.3.11 22.59.57 47 28048 28048
There is no evidence that exactly at what time deceased Vinod has been stabbed. However information has been received in Police Control Room at 7.43 am. Hence he has been stabbed prior to it. The call details of mobile no.9268001098 of accused Rekha also proved that from this phone call was made to no.100 at 7.43.52. Hence it is proved that deceased Vinod was stabbed around 7.43 am. Hence it is proved that deceased Vinod was stabbed before 7.43 am. Learned counsel for accused Naveen Dabas has contended that call details of mobile number 9289695980 proved that accused was either in the village Mubarakpur Dabas or village Pooth Khurd which is at a considerable distance from Sector20 Rohini and it is not possible for State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 101 of 129 102
accused Naveen to be present at the spot but I do not find any force in said contention. On perusal of the call details ExPW12/L it is evident that the call was made from the mobile phone of accused Naveen at 6.52.16 am and at that time accused Naveen was within the range of Tower no.28064 i.e village Mubarakpur Dabas (Cell ID No.1 denotes the tower tower where call begins) but when call ended after 1800 seconds , the accused had reached within the range of tower no.28048 (Cell ID No.2 denotes the tower where call ended) which means while talking on phone accused had traveled from the range of tower no.28064 to the range of tower no.28048. If we count 1800 seconds from 6.52.16 (as a duration of call was 1800 seconds) it is exactly 7.22.16 when call was ended. The call details shows that when the call was ended accused Naveen was in the range of tower no.28048. Further when accused Naveen made call at 7.22.16, aforesaid call details proved that he was State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 102 of 129 103
within the range of Tower ID no.28064. Hence it is proved that at 7.22.16 am, the mobile phone of accused Naveen was catching signal from both towers i.e tower no.28604 as well as tower no.28048. Further when the call ended at 7.37.23 am (as duration of call was 907 seconds) he was in the range of Tower no.28048 i.e Sector20, Rohini. Hence it is proved beyond reasonable doubt that at the time of incident which may be between 7.30 am to 7.43 am, accused Naveen Dabas was present within the area of Sector20, Rohini. Further call details and time of mobile phone of accused Rekha proved that she was also in the range of tower no.28048 when call ended at 7.37.23 which means both the accused Naveen and Rekha were present near or may be at the spot where the deceased was murdered. Hence accused Naveen had opportunity to kill deceased Vinod. Accused Naveen had not given any explanation what he was doing in Sector20 at the time of incident, hence presence of State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 103 of 129 104
accused at the time of incident is a strong circumstance against the accused Naveen that he had participated in the murder of deceased Vinod.
As far as accused Rekha is concerned call details of her mobile phone no.9289696849 ExPW12/C proved that at 6.52.16 am, when she received the call she was in the range of tower ID no.29107 and when the call ended after 1800 seconds, she was in the range of tower ID no.28048. Further when she received call at 7.22.16, aforesaid call details proved that she was within the range of Tower ID no.29107. Hence it is proved that at 7.22.16 am, the mobile phone of accused Rekha was catching signal from both towers i.e tower no.29107 as well as tower no.28048. Further when the call ended at 7.37.23 am (as duration of call was 907 seconds) she was in the range of Tower no. 28048 i.e Sector20, Rohini. Hence it proved that she was also present State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 104 of 129 105
at the spot at the time of incident.
PREVIOUS AND SUBSEQUENT CONDUCT OF ACCUSED NAVEEN & REKHA
62. Further the aforesaid call details proved that both accused Rekha and Naveen in continuous conversation with each other and its proved the case of prosecution that accused Rekha provided complete information about deceased Vinod to accused Naveen i.e when the deceased left the house. It appears that due to said reason accused Rekha came to know immediately that deceased has been stabbed and she made call from her phone on 100 number at 7.43.12. Hence these call details is the strong circumstances against the accused Naveen and Rekha that they have conspired to kill deceased Vinod. These call details are relevant under Section 8 of Evidence Act as conduct of accused Naveen and Rekha immediately preceding the incident.
In criminal trial unnatural, abnormal or unusual behaviour of State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 105 of 129 106
an accused prior to offence or after the offence is a relevant circumstance against the accused. Such conduct is inconsistent with his innocence.
The call details ExPW12/L for the period 01.3.11 to 31.3.11 of phone no. 9289695980 calls proved that accused Naveen used to have conversation on mobile phone number 9289696849 for long duration for whole days. Normally his call begin at around 6.30 am to 7 am and last call end at around 10 to 10.30 pm except from 20.3.11 which creates suspicion that accused were following morning actions of deceased Vinod. Further on 23.3.11 i.e on the day of incident also accused Naveen and Rekha had conversation on the aforesaid mobile phone number earlier then their usual time i.e at 4.51.11 AM and they had continuous conversation till 7.37.23 AM as last call prior to incident started at 7.22.16 AM and last for 907 seconds. But after the stabbing State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 106 of 129 107
incident no call was made for whole day till 22.59.57 which is quite unusual if we see their previous days call details. The said conduct of both accused Naveen and Rekha is relevant as it proved that after the incident both have avoided to talk to each other. If the accused Naveen was talking to his girl friend (not Rekha) then why he did not talk his girl friend for whole day as he normally does in other days. Further he failed to explain why he has made no call to phone no. 9289696849 after 23.3.11. As per his own admission he was detained on 27.3.2011 then what prevented him to made call from 24.3.2011 till 27.3.2011 to his alleged girlfriend. The only plausible reason appears to be that after 23.3.2011 the mobile phone no. 9289696849 was burnt by accused Rekha. The conduct of accused Naveen for not making any call for whole day on 23.3.2011 after incident except in night at about 11 pm. It creates grave suspicion that he was involved in the incident of stabbing State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 107 of 129 108
of deceased Vinod and he had apprehension that police might be questioning accused Rekha, therefore avoided talking with Rekha and after 23.3.11 mobile phone no. 9289695849 was destroyed to hidden the fact that accused Rekha was using the said phone. Hence the subsequent conduct of accused Naveen and Rekha is a strong circumstance against them that they were involved in the murder of deceased Vinod.
RECOVERIES
63. From the testimonies of PW2 W/Ct. Malti, PW14 Ct. Vijay and PW18 Inspector Lalit Kumar it is proved that accused Rekha was arrested on 29.3.11 vide arrest memo ExPW1/A and her confessional statement was recorded vide memo ExPW1/C. She got recovered burnt mobile phone make Samsung from the gutter of neighbour which was seized vide ExPw1/D. As stated above circumstance proved burnt State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 108 of 129 109
mobile phone was phone no. 9289695849. The recovery of burnt mobile phone proved that accused Rekha want to destroy the evidence to hide that she was using the said mobile phone. Further from the testimony of aforesaid witnesses it is proved that it is accused Rekha who took the police to the house of accused Naveen at village Sultanpur Dabas where accused Naveen Dabas was arrested vide memo ExPW14/A and he made confession statement ExPW14/C. From the perusal of confession statement ExPW14/C, it is evident that he has confessed his relation with accused Rekha and that he along with accused Mandeep committed the murder of the deceased when accused Rekha told him that deceased Vinod had left the house for walking with his dog and after murder accused Naveen and Mandeep hidden the knives near the bank of Sukhi Nehar (dry canal). Further aforesaid PWs have proved that accused Naveen produced one jeans State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 109 of 129 110
pant, one checkdar Tshirt from his house which he confessed to wear at the time of incident and which were seized by PW18 vide memo ExPW14/E and also produced mobile phone Samsung having dual SIM which was seized vide memo ExPW14/D. Further aforesaid PWs proved that at the instance of accused Naveen, accused Mandeep was apprehended from his home and was arrested vide memo ExPW14/F and confessional statement ExPW14/H of accused Mandeep was recorded by IO and accused Mandeep got recovered one Tshirt and pyajama from his house which he was wearing at the time of incident which were seized vide memo ExPW14/K and accused Mandeep also handed over one mobile phone having two SIM of mobile no.9971124454 of Airtel and mobile no.9899138838 of Vodafone which were seized vide memo ExPW14/J. Further aforesaid PWs also proved that accused Mandeep and Naveen had got recovered blood stained knives from the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 110 of 129 111
Sukhi Nehar which were seized by PW18 Inspector Lalit Kumar vide seizure memo ExPW18/L and ExPW14/M respectively.
64. As far as the confession statement is concerned it is settled law that as per Section 27 only portion of confession statement to the extent will lead to the discovery of facts are admissible in evidence. Section 27 of the Evidence Act, 1872 deals with how much of information received from the accused may be proved. It reads as under: S.27 How much of information received from accused may be proved:--
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Under the Evidence Act, there are two situations in which confessions to police are admitted in evidence. One is when the statement State V Mandeep & Ors.FIR No.68/11 PS Begumpur Page No. 111 of 129 112
is made in the immediate presence of Magistrate, and the second, when the statement leads to the discovery of a fact connected with the crime. The discovery assures the truth of the statement and makes it reliable even if it was extorted. The finding of articles in consequence of the confession appears to render trustworthy that part which relates to them. The scope of the Section 27 was explained by the Privy Council in Pulukuri Kottaya V Emperor, AIR 1947 PC 67. Explaining the relationship between Section 26 and 27 and the ban imposed by Section 26, their Lordships said:--
Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the the view that if a State V Mandeep & Ors.FIR No.68/11 PS Begumpur Page No. 112 of 129 113
fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused.
65. Hence in the statement of accused Rekha only the portion which leads to the recovery of mobile phone ExP3 from the gutter is admissible. In the statement of accused Naveen and Mandeep only the part which led to recovery of knives from Sukhi Nehar and their blood stained clothes recovered from their house are admissible and rest of the contents of disclosure statement is to be excluded being inadmissible in evidence. Testimonies of PW2, PW14 and PW18 proved that mobile phone got recovered by accused Rekha from the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 113 of 129 114
gutter and knives were got recovered by accused Naveen and Mandeep from Sukhi Nehar. As far as the contention of learned counsel for accused persons that since no independent person has been examined by the prosecution at that time of recovery from the accused persons, therefore, it creates doubt about the recovery. In my view, the testimony of these witnesses cannot be merely discarded on the ground that no independent witness was joined at the time of recovery. Undoubtedly the joining of independent witness give more credit to the recovery but in the absence of same, do not make recovery inadmissible. There is no law that testimony of police officials should not be believed but definitely need to scrutinize very carefully. As far as the recovery of mobile phone no.9268001098 and 9289695980 is concerned it does not make any difference whether any recovery is effected or not as call details of these two mobiles proved beyond reasonable doubt that they were being used State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 114 of 129 115
by the accused Rekha and Naveen. As far as mobile phone no. 9289696849 is concerned one mobile phone has been recovered from the gutter at the instance of accused Rekha. The contention of ld. Counsel for accused Naveen and Rekha that recovered phone and its SIM is not of phone no. 9289695849 has no force as both the accused have failed to explain if seized phone is not the phone bearing no. 9289695849 then the where said phone has gone. Call details ExPW12/C proved that call has been made from the said phone after 23.3.11 which means said phone was not in use after 23.3.11. Mobile phone number 9289695849 was in the name of accused Naveen is not disputed, hence, the onus was on the accused Naveen to prove where the said mobile has gone. The accused Naveen in his statement u/s 313 Cr.P.C. has taken the defence that said mobile phone was given by him to his girl friend who is also residing in Sector20, Rohini. But accused State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 115 of 129 116
had not disclosed her name or address nor has examined her to prove his defence. Even if for the sake of arguments, it is accepted that he do not want to disclose the identify of his girl friend being a true lover as it can bring bad honour to her but accused Naveen can at least produced the said handset in defence or at least summon the witness from mobile service provider to prove that said handset is still existed and is in use to disprove the prosecution theory that recovered burnt mobile phone is not the mobile phone used on number 9289695849. But no such evidence has been led. Further in the cross examination of PW1 Ct. Malti, PW14 Ct.Vijay and PW18 Inspector Lalit Kumar in whose presence the phone was recovered no such suggestion has been given by accused persons that phone was in existence and was with the girlfriend of accused Naveen. Hence accused Naveen has failed to prove said defence. It appears that the said defence has been taken to State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 116 of 129 117
cover up the call details of mobile phone number 9289696849 as most of the calls are made and received in the said phone from the area of Sector20, Rohini, the area in which accused Rekha is residing. Hence defence appears to be an afterthought.
As far as the recovery of knives is concerned, from the evidence it is evidence that knives were recovered from a secluded place near Sukhi Nehar where usually the public do not visit. As per the testimony of PW18 Inspector Lalit Kumar, the knife was recovered from the bushes near Sukhi Nehar. Learned counsel for accused submitted that there are contradictions in the statements of witnesses about the place of recovery of knives. He submitted that PW14 Ct. Vijay stated that knife was recovered from near the Sukhi Nehar, Karala, village Pooth Khurd which is at a distance of about one meter from Sukhi Nehar. PW14 Ct. Vijay told in cross examination that knife was State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 117 of 129 118
recovered inside the dry canal after climbing down at the bank of canal. In my view these contradictions are not much material as PW18 Inspector Lalit Kumar has explained that place from where the knives were recovered i.e bank of Sukhi Nehar. Hence the contradictions as alleged by learned counsel for accused is the difference of perception of both witnesses regarding explaining the place of recovery of knives. Even otherwise when the statement is recorded after a long period some contradictions are bound to be there.
As far as non joining of independent witness is concerned. Again I say that though joining of public witness to the recovery give credibility to the recovery but at the same time non examination of public person does not mean that recovery is planted by the police. Duty of the court is to scrutinize the testimony of police witnesses more carefully. The place is a secluded place where witnesses are not easily available. State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 118 of 129 119
Hence non joining the public witnesses is not fatal to the prosecution case. Even otherwise it is known fact that public witness do not join the investigation as it causes lot of inconvenience to them as first they have to go to the police station and thereafter taken several rounds of the court for giving evidence.
66. As far as contention of learned counsel for accused that in the FSL report, no blood is mentioned and in FSL report ExPW18/K it is only mentioned that recovered knife is having human blood. Hence it is not proved that by the said knife deceased was murdered. In my view non mentioning of blood group in the FSL report is not fatal as knife has been examined after long time gap, therefore, it is very unlikely to find the blood group. In such circumstances, I am not agree with the contention of learned counsel for accused that since deceased blood group was not mentioned in the FSL report, hence it is not proved that State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 119 of 129 120
recovered knives are not the one by which deceased Vinod was murdered. PW7 Dr. Manoj Dhingra in his subsequent opinion ExPW7/B has opined that injury present on the deceased can be caused by the knife produced by the IO for inspection. Further it is settled law that recovery of weapon itself is nothing unless it is seen in the light of other circumstances proved against the accused. The accused Naveen had nothing and his presence at the spot is also established therefore if look overall circumstances, recovery of knife from accused Naveen cannot be doubted.
67. As far as recovery of blood stained clothes are concerned, I am agree with the contention of Ld. Defence counsel that prosecution has failed to prove that these clothes are of accused Naveen and Mandeep or they were wearing the same at the time of incident. In the FSL Report ExPW18/J, though it is mentioned that blood stained found State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 120 of 129 121
on the clothes was human blood but since no blood group is mentioned, therefore, it is not proved that blood stained on clothes are of deceased or of any of accused. Hence in the absence of any other evidence, I held that prosecution has failed to prove that accused persons were wearing the said clothes at the time of incident.
68. Further prosecution has relied upon the pointing out memo of place of incident prepared at the instance of accused Naveen and Mandeep as one of the circumstances against the accused persons. PW14 Ct. Vijay and PW18 Inspector Lalit Kumsar had deposed that the accused Mandeep and Naveen had pointed out sthe place of incident i.e vacant plot behind liquor shop, Sector20, Rohissni where the deceased Vinod was stabbed and IO PW18 has prepared the pointing out memo vide ExPW18/G and ExPW18/H. On the other hand learned defense counsel submits that point out memos have no relevance in the case as State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 121 of 129 122
the place of incident was already known to the police officials prior to the pointing out of the place. I am agree with the said contention of learned counsels for accused persons. When a fact is already in the knowledge of police officials, then it cannot be said to be discovered at the instance of accused persons. At that time, when they pointed out the place of incident, the accused were in the police custody, therefore pointing out of place of incident is nothing more than the part of a confessional statement which cannot be read against accused persons as it has not led to discovery of any new facts which were not in the knowledge of police officials. Hence, in my view, the pointing out of place of incident is not a circumstances against the accused persons and cannot be relied against the accused persons.
69. In view of aforesaid discussion, I held that prosecution has been able to prove the following circumstances against the accused State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 122 of 129 123
Rekha and Naveen for the offence u/s 302 IPC with 120B IPC and against accused Naveen u/s 302 IPC : i. That the accused Rekha and Naveen had illicit relationship;
ii. That deceased Vinod did not like the illicit relationship between them and scolded accused Rekha;
iii. That accused Naveen and Rekha conspired and killed deceased Vinod and for this accused Rekha provided complete details of activities of deceased Vinod on the day of incident i.e on 23.3.11;
iv. That presence of accused Naveen at the time of incident at or near the spot i.e Sector20, Rohini where deceased was stabbed;
v. Subsequent conduct of accused Naveen and Rekha not to talk each other after the incident.
vi. Arrest and recovery of burnt mobile phone number 9289696849 at the instance of accused Rekha; vii. Arrest of accused Naveen and recovery of weapon of offence i.e knife at the instance of accused Naveen; viii.Post Mortem Report and subsequent opinion.
70. Hence as such prosecution has led complete chain of circumstantial evidence against the accused Rekha and Naveen which State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 123 of 129 124
led only one conclusion that is the guilt of the accused Rekha and Naveen inconsistent to their innocence. The chain of evidence led by the prosecution is only consistent with the hypothesis of the guilt of the accused and there is no substantial evidence, may not be consistent to the guilt of accused Rekha and Naveen. It is proved by all the human probabilities that the accused Naveen had committed the murder of deceased Vinod in conspiracy with accused Rekha.
71. The testimonies of PWs particularly PW6 Vijay Singh and PW13 Anjali Sharma can be safely relied upon and there is no reason to disbelieve the same. The testimonies of other witnesses and documents particularly call details of mobile phones duly corroborated their testimonies. Hence the prosecution has proved beyond reasonable doubt that accused Naveen and Rekha conspired together to murder 90deceased Vinod and accused Naveen committed the murder of State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 124 of 129 125
deceased with one of his accomplish. Hence I convict accused Rekha and Naveen for criminal conspiracy to commit the murder of deceased Vinod which is punishable u/s 302 read with 120B IPC and also convicted accused Naveen for committing murder of deceased Vinod which is punishable u/s 302 IPC and since accused Naveen has used the knife in committing the murder of deceased, therefore, I also convicted him for offence u/s 27 Arms Act.
72. The accused Rekha is also charged for the offence punishable u/s 201 IPC. Section 201 IPC deals with causing disappearance of evidence of offence, on giving false information to screen offender. Section 201 deals that whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 125 of 129 126
intention gives any information respecting the offence which he knows or believes to be false.
73. As discussed above, at the instance of accused Rekha burnt mobile phone was recovered which was used exclusively by accused Rekha for conversation with accused Naveen and she used the said phone bearing mobile number 9289696849 on the day of incident for giving information about the deceased Vinod to accused Naveen which facilitated the accused Naveen has murdered the deceased Vinod. Recovery of burnt mobile phone give presumption that accused Rekha had burnt the said mobile phone and thereafter thrown it in the gutter and she did the said act with the intention to conceal her offence i.e her conspiracy with accused Naveen. Thus prosecution has been able to prove that accused Rekha has committed offence u/s 201 IPC. Hence I convicted accused Rekha also for offence u/s 201 IPC. State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 126 of 129 127
74. As far as accused Mandeep is concerned, from the evidence discussed above only following circumstances were proved : i. The blood stained clothes were handed over by accused Mandeep to the police;
ii. The blood stained knife was recovered at his instance ;
iii. pointing out memo of place of incident was prepared at the instance of accused Mandeep.
75. As far as blood stained clothes are concerned, I had already discussed in para No.67 that prosecution has failed to prove that the blood stained clothes were worn by the accused at the time of incident.
76. Further as far as recovery of knife at the instance of accused Mandeep is concerned, the confessional statement of accused Naveen was recorded first and he has confessed that knives were hidden by him and accused Mandeep in Sukhi Nehar. Hence the recovery of knife at the instance of accused Mandeep is admissible in State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 127 of 129 128
evidence in view of Section 25 and 26 of Evidence Act as the fact of hiding out of knife in Sukhi Nehar was already in the knowledge of police when confessional statement of accused Mandeep was recorded. Similar is the position about pointing out memo of place of incident. Spot of incident was also known to the police prior to pointing out of place by accused Mandeep. Hence pointing out of place of incident by accused Mandeep is also not admissible in evidence. There is no other evidence against the accused Mandeep except stated above. Mere recovery of blood stained knives or blood stained clothes, even if it presume that same were recovered at the instance of accused Mandeep do not complete chain of evidences which could lead to the hypothesis that it is accused Mandeep and no one else has committed the murder of deceased Vinod along with the accused Naveen. Prosecution has failed to establish that accused Mandeep was friend of accused Naveen State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 128 of 129 129
or he was present at the spot at the time of incident. No call details of mobile phone of accused Mandeep, which was recovered at his instance, has been produced on record to prove that he was in contact with accused Naveen or Rekha. No evidence has been led by the prosecution that on the day of incident he was at or near the spot. Hence, I held that prosecution has failed to prove beyond reasonable doubt that accused Mandeep has committed murder of deceased Vinod. Hence, I acquitted accused Mandeep from all charges. He be released forthwith, if not required in any other case.
77. Accused Mandeep is directed to furnish personal bond in the sum of Rs.20,000/ in compliance of provisions of Section 437 Cr.P.C. within seven days from today.
Announced in open court (Sanjeev Kumar) Dated 8.5.2012 ASJ01, Outer, Rohini, Delhi State V Mandeep & Ors. FIR No.68/11 PS Begumpur Page No. 129 of 129 130
IN THE COURT OF SHRI SANJEEV KUMAR, ASJ01 , OUTER DISTRICT, ROHINI, DELHI SC No.90/2011 FIR No.68/2011 PS Begumpur U/s 302/201/120B/34 IPC State Versus
1. Naveen Dabas, S/o Surender Singh, R/o H.No. 185, VPO Sultanpur Dabas, Delhi.
2. Rekha, W/o Late Vinod Kumar, R/o H.No.A4/173, Sector20, Rohini, Delhi. ... Convicts ORDER ON SENTENCE Shri S.C. Saroi, APP for the State and proxy counsel for convict Naveen and convict Rekha heard on quantum of sentence.
2. Vide judgment dated 8.5.2012, convict Rekha was convicted for offence u/s 302 read with 120B IPC and u/s 201 IPC whereas convict State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 130 of 129 131
Naveen was convicted for offence u/s 302 read with 120B IPC, u/s 302 IPC and 27 Arms Act.
3. The convict Rekha is aged about 37 years. She has three minor children. She is in JC since 29.3.2011.
4. The convict Naveen is aged about 22 years and he is a student. He is the only son of his parents, therefore, he has responsibility to look after his old aged parents. Considering this fact, proxy counsel submits that lenient view be taken.
5. The APP stated that the convicts are not entitled for any leniency and prayed that sufficient punishment be awarded to the convict under given facts and circumstances.
6. The protection of society by stamping out criminal proclivity is essential function of state. It can be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 131 of 129 132
of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid down. The object of sentencing is that the offenders does not go unpunished and the justice be done to the victim of crime and the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The measure punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defence less and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 132 of 129 133
7. It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 : the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 133 of 129 134
sentencing system.
8. In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant.
9. Section 302 IPC prescribed death or life imprisonment as a penalty for murder. The Indian Penal Code has under gone multi dimensional changes for the last three decades which indicates that the State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 134 of 129 135
Parliament has taken note of contemporary criminological thought and movement. The Indian Penal Code reflects a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354 (3) Cr.P.C. It indicates that reformation and rehabilitation of offenders and no deterrence, are now among the foremost objects of the administration of criminal justice in the country. Section 354(3) Cr.P.C. is a part of emerging picture of acceptance by the legislature of the new trends in criminology. The personality of a offender revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. The former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the sentence prescribed in the Section 302 IPC. State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 135 of 129 136
10. In case Bachan Singh V State of Punjab, AIR 1980 SC 898 it was observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
11. In case Machhi Singh V State of Punjab, AIR 1983 SC 957, the guidelines are laid down which are to be kept in view, considering the question whether the case belongs to the rarest of rare category. It was observed that the following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:--
a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 136 of 129 137
12. In case Machhi Singh, the guidelines were culled out which are to be applied to the facts of each individual case where the question of imposition of death sentence arises. The following preposition emerges from the Bachan Singh's case: i. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. ii. Before opting for the death penalty the circumstances of the 'offender' also required to be taken into consideration along with the circumstances of the 'crime'.
iii. Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
iv. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 137 of 129 138
circumstances before the option is exercised.
13. In case Bablu @ Mubarak Hussain V State of Rajasthan, AIR 2007 SC 697, the Supreme Court observed as under :-
In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
i. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
ii. When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money or reward or a coldblooded murder for gains of a person visavis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
iii. When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry State V Mandeep & Ors.FIR No.68/11 PS Begumpur Page No. 138 of 129 139
deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. iv. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
v. When the victim of murder is an innocent child, or helpless woman or old or infirm person or a person visavis whom the murder is in a dominating position or a public figure generally loved and respected by the community.
14. In the instant case, both convicts Rekha and Naveen had illicit relationship due to which deceased Vinod husband of convict Rekha scolded her, hence both convicts Rekha and Naveen conspired to kill Vinod and in pursuance of said conspiracy, convict Naveen inflicted knife blows on deceased which proved fatal and he expired. The deceased was unarmed at that time while the accused was armed with knife. The marriage of convict Rekha and deceased was more than 18 years old and they had three children out of the said wedlock. The convict Naveen was working as teacher of the children of convict Rekha State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 139 of 129 140
and deceased Vinod and they developed intimacy and thus conspired to kill deceased Vinod to remove him from their way. Thus both convicts Rekha and Naveen had broken the trust of deceased Vinod and the untimely death of deceased has taken away shelter, love and affection from the children of deceased Vinod. Convict Naveen is a young person of age 22 years whereas convict Rekha is of age 37 years. Their case does not fall within the category of rarest of rare case as explained in the judgment mentioned above.
15. After considering the facts and circumstances of the case together, the convict Rekha is sentenced to life imprisonment along with fine of Rs.5000/ in default SI for three months for offence u/s 302 read with section 120B IPC and RI for three years along with fine of Rs. 2000/ in default SI for one month for offence u/s 201 IPC.
The convict Naveen is sentenced to life imprisonment along with fine of Rs.5000/ in default SI for offence u/s 302 read with section 120B IPC, and life imprisonment along with fine of Rs.5000/ in default State V Mandeep & Ors.
FIR No.68/11PS Begumpur Page No. 140 of 129 141
SI for three month for offence u/s 302 IPC; and RI for three years along with fine of Rs.2000/ in default SI for one month for offence u/s 27 Arms Act, 1959.
All the sentences shall run concurrently. The case property is confiscated to the State. Benefit of Section 428 IPC be given to the convicts. Committal warrants be issued against the convicts. A copy of the judgment and order on sentence be supplied to the convicts free of cost forthwith. The file be consigned to the record room.
Announced in open court (Sanjeev Kumar) on 19.5.2012 ASJ01 (Outer) Rohini, Delhi. State V Mandeep & Ors. FIR No.68/11 PS Begumpur Page No. 141 of 129