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Delhi District Court

Fir No.34/2011 State vs . Israr Malik And Ors Page No. 1/74 on 4 July, 2022

        IN THE COURT OF SHRI ARUL VARMA, ASJ­04 AND
    SPECIAL JUDGE (NDPS) SOUTH­EAST: SAKET COURTS: NEW
                           DELHI


                                                           SC No. 2155/2016
                                                             FIR No.34/2011
                                              U/s 302/364/394/201/411/34 IPC
                                                    P.S. New Friends Colony
State
Vs.
1     Israr Malik S/o Sh. Yasin Malik
      B­1181, Rajeev Colony
      Mohan Nagar, Ghaziabad, UP.
2     Vijay Kumar S/o Sh. Bechain Giri
      R/o A­1250, Rajeev Colony, Mohan Nagar
      Ghaziabad, UP.

3    Ranjeet Singh S/o Sh. Chatar Singh
     R/o Rajeev Colony, Mohan Nagar
     Ghaziabad, UP.

4    Sonu @ Harish S/o Sh. Indraj
     Rajeev Colony, Mohan Nagar
     Ghaziabad, UP.
     (Proclaimed Offender vide order dated 30.06.2011)
                                                . . . . . Accused persons




Date of Institution                  :     25.05.2011
Date of reserving the Judgment       :     04.7.2022
Date of Judgment                     :     04.07.2022




          FIR No.34/2011   State Vs. Israr Malik and ors Page No. 1/74
                                    JUDGMENT

FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION

1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. On 2.2.2011 the complainant Sh. Rajesh Kumar, the Manager, M/s Kapish Infolinks Pvt Ltd, 7B/32, Community Centre, Wazirpur Industrial Area, New Delhi­52 had got registered FIR No. 35/2011 U/s 406 IPC at PS, GTB Nagar, Delhi alleging that on 30.1.2011 he had sent the deceased driver Sandeep Mandal of car make Toyta Fortuner bearing registration No. DL­4C­LE­5629, registered in the name of the above company, to leave his relatives at B Block, Dilshad Garden from CC Colony, near Maharana Pratap Bagh, Delhi but deceased driver after leaving his relatives at their said destination, did not return to him. He made the police complaint and got registered the above FIR at PS, GTB Nagar. Further, it is the case of the prosecution that on 21.2.2011 in connection with the investigation of the above case, Insp. Ravinder Ahlwawat alongwith SI Suman Kumar and other police officials, reached in the area of Rajiv Colony, Mohan Nagar, UP because it was revealed to him that mobile phone of deceased driver make G­5 (dual SIM) having IMEI No(s). 359494030081006 and 359494030382503 was found operating on SIM No. 8447627548 on IMEI No. 359494030382503. The owner of the No. 8447627548 was Raju Malik S/o Sardar Singh R/o B­ 1147, Rajiv Colony, Ghaziabad, UP. On inquiry from said Raju Malik, it was revealed that the said mobile phone instrument was pawned/mortgaged with him by one Ranjeet for Rs.1000/­ . On 5.2.2011 Ranjeet took back his aforesaid phone after returning the mortgaged amount. Raju Malik further told that said Ranjeet had given the said mobile phone to one Israr Malik. At the instance of Raju Malik, police FIR No.34/2011 State Vs. Israr Malik and ors Page No. 2/74 apprehended Israr Mali from Apsra Border, Delhi. On interrogation, the accused Israr Malik confessed that he alongwith his associates namely Ranjeet, Harish @ Sonu (Proclaimed Offender) and Vijay had committed the offence of murder of driver Sandeep Mandal. The dead body of deceased driver Sandeep Mandal was already recovered by the police of PS, Sahibabad which was identified by the complainant. On the basis of the aforesaid circumstances, Insp. Ravinder Ahlawat prepared a rukka dated 21.2.2011 and the same was sent to PS, New Friends Colony, through SI Suman Kumar for registration of the present case, on the basis of which, FIR No.34/11 U/s 302/364/397/411/34 IPC was registered at PS, New Friends Colony. After registration of FIR, investigation of this case was marked to Insp. Harender Singh. Thereafter, investigation was carried out and charge sheet against the accused persons was filed by the police.

INVESTIGATION

2. Prosecution case as set out in the charge sheet u/s 173 CrPC is that on 21.02.2011, SI Suman Kumar, No. D210, PIS No. 1608003, PS G.T.B Enclave, New Delhi went to PS New Friends Colony and gave a 'tehrir' written by Insp. Ravinder Ahlawat to Duty Officer, New Friends Colony to the effect that on 21.22.2011 while he was posted as Inspector Investigation in PS GTB Enclave, file with respect to case FIR No. 35/2011 u/s 406/482 IPC, PS GTB Enclave was marked to him for investigation. In the said case, driver Sandeep Mandal was using a dual SIM mobile phone which had gone missing. On the basis of CDR analysis of IMEI Numbers of the said mobile phone, it was revealed that one mobile No. 8447627548 was active and it was registered in the name of Raju S/o Sardar Singh, R/o B­1147, Rajiv Colony, Ghaziabad, UP.

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 3/74

Raju told the police that he had taken the said mobile phone from one Ranjit and he had used the said mobile phone for the period from 2.2.2011 to 5.2.2011 on his SIM. Raju further told that on 5.2.2011 Ranjit had taken back his aforesaid phone from him and Ranjeet had handed over the said phone to Israr Malik. It is further stated in the 'terir' that 21.02.2011 at around 3.00 pm Israr Malik was apprehended from Apsara Border at the instance of Raju. Mobile phone G5 of white colour with Airtel SIM was recovered from accused Israr Malik. During the course of investigation Israr Malik disclosed that on 30.01.2011 he alongwith his associates­Ranjit, Harish and Vijay was present at Ashram Flyover at around 9.30­10.00PM when they stopped one Toyota Fortuner No. DL4C­NE­5629 of deceased Sandeep Mandal for taking lift and overpowered the deceased on the point of katta (firearm) and pulled him on the back seat from the driver seat, injured him with katta and also strangulated with towel and thereafter threw his dead body in an empty plot of village Karhera, PS Sahibabad, Ghaziabad, UP. It was also revealed that the dead body of deceased Sandeep Mandal was also recovered by police of PS Sahibabad on 31.1.2011. Thereafter, Insp. Ravinder Ahlawat contacted owner of said Toyota Fortuner namely Rajesh Kumar S/o Sita Ram, R/o Plot No. 129, First Floor, Partap Nagar, Hari Nagar Depot, New Delhi, who had identified the deceased as Sandeep Mandal. On the basis of said tehrir, FIR of this case was registered under section 364/394/397/302/201/411/34 IPC by DO/HC Vijay Singh and investigation was assigned to Insp. Harender. IO/ Insp. Harender Singh, alongwith HC Manoj reached to PS GTB Enclave where he had examined Inspector Ravinder Ahlawat and SI Suman Kumar. Thereafter, he alongwith staff reached at Mohan Nagar Ghaziabad and FIR No.34/2011 State Vs. Israr Malik and ors Page No. 4/74 recorded statement of other witnesses. Fortuner Car was examined by CFSL team. 11 articles were recovered from the said car by the FSL team which were seized vide seizure memo in this case. Inspection memo of the said car was prepared. IO got recorded the statements of Raju, Santosh and Dilbahadur U/s 164 Cr.PC. IO had also got collected inquest papers and pulanda containing clothes of deceased from PS Sahibabad and deposited the exhibits in the police malkhana. Accused persons­­Israr Malik and Ranjeet and Vijay were formally arrested by the IO in this case. The accused persons were taken on police custody remand. On 01.03.2011 IO/Insp. Harender Singh alongwith all above three accused persons and other police officials went to village Karheda, Distt. Meerut and pointed out towards one Rafiq who had pasted black film on the vehicle of the deceased. PW Rafiq also identified the accused persons. Thereafter, police team alongwith accused persons went to Parta Pur Service Station, Distt. Meerut where one Mintu met them. Mintu told the police that he had cleaned the blood from the vehicle in question. IO also went to Kuchesar Fort and recorded statement u/s 161 CrPC of one Aidal Singh, Dinesh Mithai who had allegedly seen the accused persons as the occupants of the vehicle in question. Adil and Dinesh have also identified accused persons Ranjeet and Israr.Accused Sonu could not be arrested and he was finally declared proclaimed officender vide order dated 30.06.2011. Clothes of accused Ranjeet and Towel of accused Sonu were got recovered by accused Ranjeet which were seizured by the police. Accused Vijay got recovered from his house at Mohan Nagar the locket of deceased. Statement of accused Vijay was got recorded under section 164 CrPC. After completion of investigation charge sheet was filed in the court against accused persons. The accused persons on FIR No.34/2011 State Vs. Israr Malik and ors Page No. 5/74 appearance were supplied the copy of charge sheet by the Ld. Metropolitan Magistrate. Thereafter, the case was committed to the Court of Sessions by Ld. MM on 30.06.2011.

CHARGES FRAMED QUA THE ACCUSED

3. Charges under section U/s 364/302/201/394/411/34 IPC were framed against all three accused persons­Israr Malik, Vijay Kumar and Ranjeet to which they had pleaded not guilty and had claimed trial.

EVIDENCE LED BY PROSECUTION

4. In the trial, the prosecution in support of its case, examined 36 witnesses., the succinct testimonies whereof are as follows:

PW­1 Pradeep Mandal. He was the brother of deceased Sandep Mandal. He stated that on 30.12.2011, his brother (since deceased) had gone for his duty in the evening and thereafter he never returned. After about 22 days, he had identified some clothes and photographs of his brother Sandeep Mandal. This witness further deposed that the mobile phone (given to his deceased brother by his employer), purse containing Driving License etc. and a silver locket having black thread garland (mala) were found missing. On the said locket, picture of Devi Mata was engraved on one side and on other side name of his deceased brother and name of his wife Lalita was written in Hindi.

To a leading question by the Ld. Addl. PP, this witness had admitted that his deceased brother went missing on 30.1.2011 in the evening alongwith vehicle and he came to know about murder of his brother on 22.2.2011 and thereafter he alongwith his father and other relatives went to PS Shahibabad where he identified the articles and photograph of his deceased brother.

During cross­examination by Ld. Defence Counsel for accused Vijay Kumar, the witness deposed that he had no knowledge whether mobile, locket and documents etc pertaining to his brother were recovered by the police or not.

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 6/74

PW­2 Raju Malik: PW2 is working as a labourer and residing at B­1147, Rajiv Colony, PS Sahibabad, Ghaziabad, UP. He deposed that accused Israr Malik and Ranjeet were also working as labourers and resided in the same colony. In the year 2011 accused Ranjeet had borrowed Rs. 300/­ from him. On 1.2.2011 accused Ranjeet came to his house and asked him to give Rs.1000/­ more which he had given Ranjeet after consulting his brother. At that time accused Ranjeet gave his mobile phone to him in lieu of Rs. 1000/­ in the presence of his mother. Said mobile phone was thereafter used by his nephew Vishnu from 2.2.2011 till

5.11.2011 after inserting his SIM. On 5.11.2011 accused Ranjeet came to his house and returned Rs. 1300/­ and took away his aforesaid phone from him. Ranjeet had handed over the said phone to Israr Malik and this fact was told to him by one of his friends. PW2 had further deposed that on 21.2.2011 police came to him and inquired about the aforesaid mobile phone. He had narrated the entire above facts to the police. Thereafter, accused Israr Malik was arrested from his house in his presence. On the following day, his statement u/s 164 CrPC was recorded by Ld. MM. His statement u/s 164 CrPC Ex. PW2/A recorded in the Court. He has identified both the accused persons­Israr Malik and Ranjeet in the Court. No cross­examination was done on behalf of accused Vijay Kumar, despite opportunity granted to him.

During cross­examination conducted on behalf of accused persons, he had deposed that accused Ranjeet came to him on 1.2.2010. He had denied all other formal suggestions that he had given statement u/s 164 CrPC under pressure of the police and he had deposed falsely qua the accused persons at the instance of the police.

PW­3 HC Virender Singh PW3 deposed that on 25.2.2011 he alongwith SI Ram Singh went to PS GTB Enclave, where MHC/M Naresh Singh had handed over one mobile phone G­Five AP­3 white colour, one box of said mobile FIR No.34/2011 State Vs. Israr Malik and ors Page No. 7/74 phone, one key and one vehicle Fortuner without number plate, number plate having No. DL4CEN 3609 which was affixed with the vehicle to SI Ram Singh. The said articles were taken into possession vide seizure memo Ex. PW3/A. They came back to PS and case property was deposited in the malkhana. His statement was recorded by the IO. He had identified the number plate DL4CEN 3609 as Ex. P1 and other case property collectively as Ex.P2. He also identified the photographs of the vehicle as Ex. P3 as vehicle, as per MHC/M, was released on superdari.

During cross­examination he deposed that vehicle was in damaged condition. He drove the vehicle to PS New Friends Colony. Front side bumper of the vehicle was damaged and it was also damaged on its back side.

PW4 HC Manoj had joined investigation of this case on 21.2.2011 with IO/PW12 Insp. Ravinder Ahlawat. He corroborated the statement of PW12 regarding seizure of Fortuner car with fake number plate ( DL4CEN 3609) from PS GTB Enclave, inspection of Fortuner car. IO called the CFSL team and on the instructions of CFSL team, IO lifted some exhibits from the said car and sealed and seized the same with seal of RS. He proved the seizure memo Ex. PW4/A and inspection memo of car Ex.PW4/B. He had further stated that thereafter, the police team reached at Rajiv Colony, Ghaziabad where they met one Raju, his nephew Vishnu and his mother and IO recorded their statements. Thereafter, police team came back to PS and deposited the case property in the malkhana. IO recorded his statement. He had also identified the exhibits P4 (5 foot mats of car having blood stains), P5 (one green colour bed sheet having red flowers stained with blood), PW5 Vishnu: PW5 deposed that PW Raju is his maternal uncle. On 2.2.2011 one white colour duel SIM mobile phone with touch screen was given to him by FIR No.34/2011 State Vs. Israr Malik and ors Page No. 8/74 Raju after inserting one SIM in the said phone. Raju told him that accused Ranjeet had mortgaged said phone with him against some amount. PW5 Vishnu had deposed that he had used the said phone till 5.2.2011. On 5.2.2011 Raju had taken away the said phone from him stating that he had received back the amount and mobile is to be returned. Police inquired him and recorded his statement. He had identified accused Ranjeet in the court. During cross­examination he had deposed that no monetary transaction was done by Raju with accused Ranjit in his presence. He admitted that such type of mobile phones are easily available in the market and there was no specific mark of identification on the said phone. He had further admitted that accused Ranjeet had not handed over the phone to Raju in his presence. All other formal suggestions put to him were denied by PW5.

PW6 HC Ravinder had deposed that on 4.3.2011 he remained associated with IO/Insp. Harender Singh during investigation of this case alongwith SI Sarvesh Singh, Ct. Dinesh and Ct. Jitender. Accused Israr Malik and Ranjit were already in police custody. The accused persons took the police party at Bairaj between canal of Baksar and Simbhawali and pointed out the place where they had abandoned Fortuner car in a grove (Baag). SI Suresh of PS Shambhawali had also joined them there. Pointing out memo Ex. PW6/A was prepared by the IO in this regard. Thereafter both the accused pointed out the place (mithai shop and tea shop) where the Fortuner car had hit a buggy/bullock cart in the evening. Thereafter, they all returned to Delhi and accused persons were sent to lock up. During cross­examination he stated that IO first made his arrival entry in GD at around 11­12 noon at PS Sambhawali. No disclosure statement of the accused persons was by the IO in his presence before recording the said GD at PS Sambhawali. He denied the suggestion that disclosure statements of the accused persons are manipulated by the IO to framed the accused persons in this case.

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PW7 HC Vijay Singh PW7 was duty officer, PS New Friends Colony. He had deposed that on 21.2.2011 from 5pm to10 am he was working as Duty Officer. At about 8.45pm SI Suman produced to him a "tehrir" sent by Insp. Ravinder Ahlawat. On the basis thereof, he recorded FIR on DD No. 23Au/s364/394/397/302/201/411/34 IPC Ex. PW7/A and made his endorsement Ex. PW7/B on original tehrir. After registration of FIR, he handed over copy of FIR and original tehrir to Insp. Harender for further investigation. During cross­examination he had denied the suggestion that FIR is belated, registered after due consultation and deliberations and deposing falsely. He had not brought the rojnamcha to show that he was on duty at that time. PW­8 SI Mahsesh Kumar (Draftsman) PW8 had deposed that on 18.3.2011 he was posted as Draftsman SI in Crime Branch, PHQ, New Delhi. On that day on the request of Insp. Harender Singh , he alongwith Insp. Harender Singh reached at PS Sahibabad, Ghaziabad, UP from where SI Resham Singh was also taken and then they all reached the spot i.e. Kanda Upwan Jal Board, Village Karhera where in a vacant plot a dead body was found by SI Resham Singh. At the instance of Resham Singh and Insp. Harender Singh he had prepared rough notes and took measurements of all the directions of the area. On the basis of those notes and measurement, I prepared scaled site plan Ex. PW8/A. Rough notes were destroyed thereafter. IO had recorded his statement. He further stated that inadvertently he mentioned wrong date in the scaled site plan as 31.3.2011 instead of 18.3.2011.

During cross­examination he stated that no site plan prepared by SI Resham Singh was handed over to him at any point of time. He does not know to whom the said vacant plot belongs. SI Resham Singh did not call anybody to verify the ownership of the plot in his presence. It was a vacant plot and not a groove. He had not remembered the GD number vide which they departed from PS FIR No.34/2011 State Vs. Israr Malik and ors Page No. 10/74 alongwith SI Resham Singh to the spot. All other formal suggestions were denied by him that he did not visit the spot and deposing falsely. PW9 ASI Shabab Alam deposed that on 11.3.2011 he was posted as ASI at PS New Friends Colony and on that day on the instructions of IO, he collected sealed exhibits from MHC/M vide RC No. 29/2011 and deposited the same at CFSL, CBI, CGO Complex, New Delhi. After depositing the exhibits he obtained the receipt thereof, returned to PS and handed over the same to MHC/M. Till the time, the case property remained in his possession it was not tampered with. IO recorded his statement.

During cross­examination he admitted that police movement is governed with the daily diary. He had not remembered whether the RC contained any entry with respect to the DD. RC was prepared by Incharge Malkhana. He could not tell his arrival recorded in the PS after depositing the case property in CFSL. All other formal suggestions were denied by him that he did not deposit the exhibits in CFSL.

PW10 SI Ichha Ram had deposed that on 23.2.2011 he was posted as SI in PS, New Friends Colony. On that day he alongwith Insp. Harender handed over the case file of this case to him and sent him to Saket Court with three witnesses-- Raju, Smt. Santosh and Vishnu for getting their statements recorded u/s 164 CrPC. Accordingly he alongwith aforesaid witnesses went in court and moved the appropriate application which was marked to Ld. Link MM Sh. Munish Marken. Production warrants of the accused persons were also got issued for 28.2.20211. Statements u/s 164 CrPC of the above three witnesses was recorded by Ld. Link MM after the witnesses were identified by him. He obtained copies of the statements and thereafter returned to PS and handed over the file to the IO. IO recorded his statement.

During cross­examination he stated that no written order was given to him by FIR No.34/2011 State Vs. Israr Malik and ors Page No. 11/74 the IO in this case. He did not make any DD entry in respect of his departure from PS to court with witnesses. He had denied the suggestions that he did not produce the witnesses for their statements under Section 164 CrPC before the court of Ld. Link MM or that he had deposed falsely in that regard. PW11 HC Dhara Singh had deposed that on 22.2.20211 he was working as MBHC/M in PS New Friends Colony. On that day Insp. Harender Singh deposited with him 11 sealed parcels duly sealed with seal of RS in malkhana. He made entry in this regard in register no. 19 vide Sr. No. 2496, copy of which was Ex. PW11/A. On 23.2.20211 Insp. Harender Singh also deposited with him a sealed parcel duly sealed with seal of SIUPP alongwith sample seal in the malkhana. He made entry in this regard in register No. 19 vide Sr. No. 2501, copy of which was Ex. PW11/B. He further deposed that on 25.2.2011 SI Ram singh deposited with him a mobile phone make G­5 AP3 white colour alongwith airtel a sim card and one box of abovesaid mobile phone, one Tyota Fortuner vehicle without number plate and without front bumper and also having the scratches marks towards driver side without side mirror of driver side and broken steel bumper of back side with fake number plate, which was affixed on back side bearing No. DL4CEN 3609 (original No. DL4CNE 5629) in the malkhana through RC No. 26/11/21 which was brought from PS GTB Enclave vide FIR No. 35/2011, PS GTB Enclave. He made entry in this regard in register No. 19 vide Sr. No. 2508, copy of which was Ex. PW11/C. On 2.3.2011, Insp. Harender Singh also deposited with him 2 sealed parcels duly sealed with seal of RS in the malkhana. He made entry in register No. 19 vide Sr. No. 2523, copy of which was Ex. PW11/D. PW11 had further deposed that on 11.3.2011 on the instructions of the IO he had sent 6 sealed parcels and 2 sample seals to CFSL Lab, CGO Complex through ASI Shabad Alam vide RC No. 29/21. On 31.5.2011 SI FIR No.34/2011 State Vs. Israr Malik and ors Page No. 12/74 Mukesh deposited 6 sealed parcels duly sealed with seal of CFSL, CBI, CGO Complex, Lodhi Colony in malkhana and result was handed over to Insp. Harender Singh. On 16.3.2011 Manoj Aggarwal came in PS and produced a superdari order issued by Ld. ACMM, Saket before him for release of Toyota Fortuner Car alongwith superdarinama and he accordingly released the said car alongwith its articles to him. So long the case property remained in his custody, the case property was not tampered with.

During cross­examination, he stated that IO had recorded his statement but copy of the register no. 19 was not taken, however, copy of register no. 21 was taken by the IO from him. Entry No. 2496 is recorded by his Munshi. Copy of the seizure memo was copied by the Munshi. He has denied the suggestion that no articles were deposited in the malkhana or that he has made the entries on the instructions IO.

PW12 Inp. Ravinder Ahlawat deposed that on 21.2.2011 he was posted as Inspector Investigation in PS GTB Enclave and was entrusted file of case FIR No. 35/2011 u/s 406/482 IPC for investigation. In this case driver Sandeep Mandal was using a dual SIM mobile phone which was missing. From the CDR and IMEI numbers of the said phone, it was noticed that one mobile No. 8447627548 was active on one of the dual IMEI. Owner of the phone was Raju S/o Sardar Singh R/o B­1147, Rajiv Colony, Ghaziabad, UP. He alongwith his team went to house of Raju who told that mobile phone was given to him by one Ranjeet which he had used from 2.2.2011 to 5.2.2011 on his SIM. On 5.2.2011 Ranjeet has taken back the phone from him and gave to Israr Malik. On 21.2.2011 Israr Malik was apprehended from Apsara Border at the instance of Raju. Mobile phone G­Five, white colour with Airtel SIM was recovered from the possession of Israr Malik. PW12 had further stated that accused Israr Malik told that on 30.01.2011 he alongwith his associates Ranjit, Harish and Vijay FIR No.34/2011 State Vs. Israr Malik and ors Page No. 13/74 were present at Ashram Fly­over at about 9:30/10:00PM when they stopped Tata Fortuner car No. DL4CNE 5629 of deceased Sandeep Mandal for taking lift and overpowered Sandeep at the point of Katta and pulled him on back seat from driver seat, injured him with katta and strangulated him with towel and threw his dead body in the empty land of village Khereda PS Sahibabad, Ghaziabad, UP. He further stated that dead body was already recovered by police of PS Sahibabad on 31.1.2011. He called Rajesh, owner of vehicle and shown him photograph of deceased Sandeep Mandal who identified the dead body as of his driver. Based upon those facts, he prepared rukka regarding murder and robbery with firearm by accused persons which was Ex. PW12/A. The rukka was sent to PS, New Friends Colony through SI Suman Kumar at 7PM. He arrested accused Israr Malik u/s 41.1. CrPC at about 5pm. Nothing was recovered from his personal search. Original kalandra alongwith annexures was proved Ex. PW12/D. During cross­examination, he had stated that actual offence had occurred in area of PS, NFC and he had arrested accused Israr Malik in a kalandra u/s 41.1 CrPC. Disclosure statement was not signed by any independent public witness. No independent witness was asked to become witness to seizure of mobile phone from possession of accused Israr Malik. He had denied the suggestion that entire proceedings related to kalandra u/s 41.1.CrPC (arrest, recovery of mobile, disclosure statement etc) were recorded by him in the PS in connivance with IO of the present case to falsely implicate the accused Israr Malik and other accused persons.

PW13 HC Dinesh PW13 had deposed that he was posted at PS New Friends Colony in the year 2011 and has joined investigation of this case with IO/Insp. Harinder Singh and SI Ram Singh on 2.3.20211. He had deposed that on 2.3.2011 accused persons­Israr Malik, Ranjit and Vijay were already in custody FIR No.34/2011 State Vs. Israr Malik and ors Page No. 14/74 of the police and their disclosure statements were already recorded. He had corroborated the statement of PW35 SI Ram Singh with respect to the investigation carried out by IO­PW36 Insp. Harinder on 2.3.2011 on all the material facts relating to lifting of Fortuner Car bearing No. DL4CNE 5629 by the accused persons, pointing out of place from where the dead body of deceased driver was recovered, pointing out of the place where the accused Ranjit and Sonu burnt their clothes, recovery of locket of deceased from the house of accused Vijay, pointing out memo of the service station where the accused persons got the Fortuner car washed after the incident, the place from where the accused persons got back film affixed on the car glasses etc. During cross­examination he had stated that his statement was recorded by the IO. He did not see inquest papers. He admitted the suggestion of the defence as correct that presence of accused persons with police was mentioned in GD recorded at Chowki Hindon which was recorded at around 11AM. IO tried to find out the name of owner of the plot where the dead body of deceased was recovered by UP police. He further admitted the defence version that the IO did not find even a single witness in his presence, who would have seen the accused burning the clothes. Mintu did not tell any specific date when the car in question was washed at the service station. He had denied all general suggestions put to him by defence counsel.

PW14 ASI Ram Sneh was duty officer from PS, GTB Enclave. He had proved the copy of FIR No. 34/2011 Ex. PW14/A and stated that after registration of FIR, he handed over the copy of FIR and original tehrir to SI Suman through Ct. Dahyal Kumar further investigation. This witness was not cross examined despite opportunity granted to the accused persons.

PW15 SI Suman had deposed that on 2.2.2011 he was posted at PS GTB Enclave. Complainant Rajesh Kumar came in the PS to lodge report regarding FIR No.34/2011 State Vs. Israr Malik and ors Page No. 15/74 misappropriation of Toyuta Fortuner Car No. DL4CNE 5629 by driver Sandeep Mandal. He recorded his statement copy of which was Ex. PW15/A. He made his endorsement thereon and got FIR No. 35/2011 dated 2.2.2011 u/s 406 IPC recorded. He flashed WT message regarding the said vehicle. On 16.2.2011 he received an information from PS Sambhawali, Distt. Ghaziabad regarding recovery of the said vehicle by them. He alongwith his staff went to PS Sambhawali and found the said vehicle in the police malkhana with fake number plate. He checked the engine and chasis numbers and thereafter got the said vehicle transferred in case FIR No. 35/11. He seized the said vehicle vide memo Ex. PW15/A. Complainant was informed about recovery of his vehicle. Complainant informed him that his mobile phone bearing 2 IMEI number was with the driver of the vehicle and the same was kept on observation. CDRs were collected. On 20.2.2011 complainant came in PS and handed over carton of said mobile phone which was seized vide memo Ex. PW15/D. On 20.2.2011 he alongwith Insp. Ravinder Ahlawat and other staff had reached at Rajeev Colony, Mohan Nagar on the basis of CDR where one Raju, owner of the SIM met. Raju told them that accused Ranjit has mortgaged the said phone with him for Rs. 1000/­ and Ranjit had taken back the said phone from him on 5.2.2011. At the instance of Ranjit, accused Israr Malik was apprehended from Apsara Border, Delhi. PW15 had further stated that accused Israr Malik made a disclosure statement that he alongwith his associates Vijay, Ranjit and Sonu stopped the Toyta Fortuner No. DL4CNE 5629 under Ashram Flyover and thereafter, they committed murder of the driver by strangulation. They threw the dead body in the forest of Karera Village, Ghaziabad, UP. Accused Israr Malik was arrested vide arrest and personal search memos Ex. PW15/E and F respectively. Mobile phone (G­Five white colour) of Rajesh, which was given to the deceased driver by complainant, was recovered from possession of FIR No.34/2011 State Vs. Israr Malik and ors Page No. 16/74 accused Israr Malik which was seized vide memo Ex. PW15/H. IMEI number was checked and found correct. Thereafter, IO prepared rukka regarding commission of murder in the area of PS, New Friends Colony and sent the same for registration of FIR. He took the rukka Ex. PW12/A and handed over to the Duty Officer/HC Vijay Singh who recorded FIR No. 34/2011. Thereafter, he returned to PS, GTB Enclave. Insp. Ravinder Ahlawat recorded his statement. Accused Israr Malik was kept in lock after medical examined. On the next day, Insp. Harender Singh of PS, New Friends Colony met him and recorded his statement. He handed over the copies of the documents of case pertaining to PS GTB Enclave to the IO. He had identified the fake number plate of car as Ex. P1, cartoon of mobile phone Ex. P2 and photograph of Fortuner car Ex. P3.During cross­examination conducted on behalf of the accused persons, he had stated that Rajesh did not hand over any documents regarding Toyota Fortuner nor he asked for the same from him. Rajesh also did not produce any document to show that deceased was driver employed on the said vehicle. He further stated that he visited the jhuggi of deceased driver, made inquiries from neighbour but did not record statement of anyone, nor he recorded names and addresses so inquired by him in the case diary. Statement of Pradeep Mandal, brother of deceased was recorded by him. He had made inquiries from the wife of deceased but her statement was not recorded. No public person was made a witness to arrest of accused Israr Malik by the IO. PW15 had further stated that he did not make GD entry at PS Sambhawali regarding seizure of vehicle vide Ex. PW15/C. Complainant had not produced the purchase slip to prove his ownership of the mobile in question. SIM used in the phone during investigation was found in name of Raju. He stated that he has not given description of case property in his examination in chief. All other formal suggestions were denied by him.

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 17/74

PW16 Smt. Santosh had deposed that Raju (PW2) was her son. She knows Ranjit who resides in her colony. She had not remembered the exact date but 2­3 years ago (her statement was recorded on 18.12.2013) in summer accused Ranjit came to her house and asked for Rs.500­1000/­ from them in the presence of Raju. During those days there was marriage of her son Sonu so she showed her inability to pay him money. Thereafter, accused mortgaged one phone with her and she paid Rs.1000/­ to accused Ranjit and kept the mobile phone. After 4­5 days, accused Ranjit returned the money and had taken back his mobile phone. She does not know what happened to the said mobile phone. She was put a leading question with permission of the court. To a leading question she stated that on 1.2.2011 accused Ranjit came at their house and received Rs. 1000/­ from them and kept his mobile phone with them. On 5.11.2011 he again came to their house and paid Rs. 1000/­ to them and had taken away his mobile phone. During cross­examination by the accused she could not tell the description of the mobile phone and for how many days Vishnu had used the said phone. PW 17 Ravi Kumar had deposed that he was working as freelance photographer under the name and style of Jyoti Photo Studio at village Kareda, Mohan Nagar, Ghaziabad, UP. On 31.1.2021 SI Resham Singh of UP police came to him and took to jungle area­Kanha Upwan and on his instructions he took photographs of dead body lying there. He clicked photographs with his digital camera and gave prints out to the said SI. During the process of taking out print­outs no tampering was done. He had identified the said solitary photographs as Ex. PW17.A. During cross­examination he had stated that he had taken only one photograph.

PW18 Rafiq Ahmad had deposed that he was engaged in business of car decoration and know nothing about this case. Police took his signature on blank paper. His statement was not recorded. He was declared hostile and was cross­ FIR No.34/2011 State Vs. Israr Malik and ors Page No. 18/74 examined by Ld. Addl. PP for the State.During cross­examination by Ld. Addl. PP for the State, PW18 did not support the prosecution at all. He had denied that statement u/s 161 CrPC dated 2.3.2011 (exhibited as Mark A) was made by him before the police. He specifically denied that on 2.3.2011 four persons brought a white Fortuner car on which he placed black film against payment of Rs. 1000/­ or that on 2.3.2011 out of the four, police brought before him three accused persons­Israr, Vijay and Ranjit or that he had identified as the same persons who had got the black film affixed on the said car or that deliberately he was not identifying them in the court.

PW19 HC Naresh had deposed that on 16.2.2011 he was posted as MHC/M in PS GTB Enclave and on that day SI Suman Kumar deposited with him one Toyota Fortuner car bearing a registration plate but he had not remembered the number thereof. ON 20.2.2011 SI Suman deposited one box of mobile phone. On 21.2.2011 Insp. Ravinder Ahlawat deposited with him one mobile phone in the malkhana. On 25.2.2011 he handed over all the above mentioned case property to SI Ram Singh of PS, New Friends Colony vide RC No. 26/21. He had proved the relevant entries as Ex. PW19/A with respect to deposit of case property. He had further deposed that SI Ram Singh prepared the seizure memo of the case property which was already Ex. PW3/A bearing his signature at point A. During cross­examination conducted by Ld. Defence Counsel, he had stated that in entry no. 1571, 1574 and 1576 dated 16.2.2011 he had simply copied the contents of seizure memos of the case property. He did not obtain the signature of SI Suman Kumar on register no. 19 while accepting the case property from him. SI Ram Singh had not given him anything in writing when he handed over to him the case property. He had denied the suggestions that no such case property was deposited with him or subsequently handed over the same to SI Suman Kumar or that all entries are manipulated or that he had FIR No.34/2011 State Vs. Israr Malik and ors Page No. 19/74 deposed falsely at the instance of senior police officers. PW20 Rajesh Pachesia had deposed that Fortuner car No. DL 4C NE 5629 is registered in the name of M/s Kapish Infolink Pvt Ltd of which Manoj Aggarwal was a director. Manoj Aggarwal was his friend. On 301.2011 said car was lying parked at his residence in Pratap Nagar. He had further stated that one of his relatives passed away so he took his entire family to Rana Pratap Bagh in the said car. There he had left the said car at the request of his relative alongwith his driver, whose name he had not remembered. At about 8.15PM driver took his cousin to Dilshad Garden. Since it was late night, he told the driver to keep the car in his custody overnight and contact him in the morning. Driver did not contact him till 10am next day so he went to his house. Neighbors told him that driver has not come that night so he immediately contacted the local police but they did not lodge his report on the premises that complaint shall be lodged where the car was last taken. So he went to PS Dilshad Enclave where after two days FIR was registered. On 21.2.2011 he went to PS Dilshad Enclave on police call where he had identified the photographs of deadbody of the driver. His statement was recorded by the police. PW20 had further deposed that a or day two before he went to PS Sahibabad, he received a phone call from Sambhawali, UP to the effect that his car was found in that area and he had immediately contacted PS Dilshad Enclave and on the following day he alongwith police of PS Dilshad Enclave went Sambhawali and after collecting the car they came back to PS Dilshad Enclave. Later on car was taken on superdari from the court. He found missing a silver idol of Ganesh from the car. In the car he found one empty mobile phone box and he handed over the same to the IO which was seized vide memo Ex. PW15/D. He explained the PS Dilshad Enclave referred by him in statement was in fact GTB Enclave.

During cross­examination he stated that he did not keep a copy of FIR No.34/2011 State Vs. Israr Malik and ors Page No. 20/74 Driving License or any other document of the driver to show that deceased was his driver. He did not maintain any record of the driver as he was a temporary driver. He denied the suggestion that the deceased was not the driver on the car in question. He voluntarily stated that family members of the deceased were before the IO. In his further cross­examination he had stated that he was not the owner of the vehicle in question. The car was registered in the name of M/s Kapish Infolinks Pvt. Ltd and so far as he remembers, company had given an authority letter/resolution authorizing him to take the vehicle on superdari. He was not the employee of the said company. When he had received his car no inspection/investigation was made by the IO or crime team in his presence. He had denied the suggestion that with connivance of the police he got the vehicle on superdari on the basis of false documents and/or he has deposed against the accused persons at the instance of the police.

PW21 Jagdish Prasad had deposed that on 30.1.2011 he went to Kalyan Vihar to see his maternal uncle Sh MP Manti whose son had passed away. From Kalyan Vihar he came back to his house in Fortuner Car of his cousin Rajesh. Rajesh's driver dropped him at 9AM. Next day he received a phone call from Rajesh that driver did not come back and car could not be traced and FIR had to be registered from the area it was taken. So he made police call at 100 number. Later on he alongwith Rajesh went to PS, GTB Enclave where FIR was registered. During cross­examination he stated that Rajesh did not give any document or identity or address of the car driver to the police. He never saw the driving license of driver of Rajesh.

PW22 Sh. Munish Markan,Ld MM had deposed that on 23.2.2011 he was posted as MM/SED, Saket New Delhi. On that day, application for recording statement of Smt Santosh, Raju and Vishnu were marked to him for recording statements u/s 164 CrPC. The witnesses were identified by IO/SI Ichha Ram. He FIR No.34/2011 State Vs. Israr Malik and ors Page No. 21/74 had proved their statements u/s 164 CrPC and other related proceedings recorded by him as Ex. PW22/A to Ex. PW22/M. PW22 had further stated that on 7.3.2011 on the application EX. PW22/N of Insp. Harinder Singh, he had recorded statement u/s 164 CrPC Ex. PW22/O. Certificate was Ex. PW22/P, application for supplying copy of statement to IO was Ex. PW22/Q. The witness clarified that words "witness" had been inadvertently written to describe accused Vijay in proceedings Ex. PW22/R. During cross­examination by the accused persons, the witness stated that Insp. Harender Singh had identified accused Vijay on 7.3.2011 during proceedings Ex. PEW22/N. The witness further stated that he ccould not admit or deny the suggestion of the Defence Counsel if accused was induced by Insp. Harender Singh to make false statement that he would be acquitted as an approver. He further stated that as per the record, no time was given to the accused to reconsider the consequences of his statement which might go against him. No such plea was made by the IO in his application Ex. PW22/M. PW23 Mintu had deposed that in the year 2011 he was running a service station located near Raj Shree Vaishno Hotel and Restaurant at Partap Pur. He had taken the Service Station on rent from Sh. Jai Bhagwan Sharma. About 15­20 days prior to recording his statement by police, four persons had brought one fortuner car to the service station for washing. When he was washing the car, he noticed blood stains on the mat and seats of the said car. On inquiry about the blood stains, those boys informed that they had a quarrel in a marriage in which one of their associates sustained injuries whom they had hospitalized and the blood stains on the mat and seats were of their associate/friend. On 2.3.2011 police brought three persons before him at Service Station whom he had identified them who out of four had come for getting the Fortuner car washed. He had correctly identified those three persons as accused persons in this case FIR No.34/2011 State Vs. Israr Malik and ors Page No. 22/74 before the court as well. He was not cross­examined by the accused persons despite opportunity granted to them.

PW24 Aidal Kumar had deposed that he was running a Tea Stall in front of Oriental Bank of Commerce in his village Kujesarkilla, Distt. Bullandshahar, UP. He had not recollected the year however it was 4­5 years back on 14 th February, at around 3.00/4.00 Pmone car of white colour stopped in front of his shop. One boy came out of the said car and demanded kettle and glass from him but he refused. Thereafter he went inside the bank to serve tea leaving his son Rahul at the tea stall. When he returned from bank, his son Rahul told that said boy took kettle and two glasses from the shop. Thereafter the said car struck away a boggy at a distance of 100 meters from his tea stall. Public persons gave beatings to occupants of the said car. He also reached there to collect his kettle and glasses but by the time he reached there the car had already left with his articles. Public had caught one boy but two others managed to escape with car. The witness had pointed out towards accused Ranjit and stated that he had taken the kettle and glasses from his tea shop. On 4.3.2011, exact date he does not remember, police came at his tea stall and recorded his statement. Name of the accused persons were not disclosed to him by the police. He was declared hostile by Ld. Addl. PP for the State. During cross­examination by Ld. Addl. PP for the State the witness stated that statement u/s 161 CrPC recorded by the police was not read over to him. He denied the suggestion that two boys who visited his tea stall were Israr Malik and Ranjit Snbgh and Israr Malik was driving the said car. He was confronted with Statement Ex. PW21/A from A to A and B to B where it was so recorded. He had denied the suggestion that he was not deliberately identifying accused Israr Malik as his family members had approached him.

During cross­examination by the accused persons, he stated that FIR No.34/2011 State Vs. Israr Malik and ors Page No. 23/74 police had recorded his statement and statement of Dinesh Sharma, jewellery shopkeeper simultaneously. Description of the accused persons was not asked by the police while recording their statements. He and Dinesh Sharma were never called in PS to identify the accused persons. He could not say if bullock cart was damaged or not. All other formal suggestions were denied by him as incorrect.

PW25 Agan Lal had deposed that he was a vegetable seller and on 2­3 March, 2011 at around 10 to 11 AM he saw gathering of persons near a factory on the road. He reached there and saw that police were wrapping some clothes in a white cloth. They obtained his signature on a paper prepared by them. He had identified his signature on the seizure memo of burnt clothes Ex. PW25/A. He could not identify the burnt clothes shown to him after opening five pullandas. The witness further stated that he had not seen those clothes on the spot so he cannot identify them. He had also failed to identify the accused persons--Israr Malik, Ranjit and Vijay in the court.

The witness was declared hostile and cross­examined by the Ld. Addl. PP for the State after declaring him hostile but nothing could be illustrated in favour of the prosecution despite extensive cross­examination. No cross­ examination of this witness was done by the accused persons despite opportunity.

PW26 Dinesh Kumar had deposed that on 14.2.2011 he was in his sweet shop at Fuchesar Fort, PS BB Nagar, Bullandshahar, UP when a big car of white colour probably Xylo with black glass came from village Ghumenda side in the evening time and hit a boggy (bullock cart) which was stationed near his car in front of his shop. Public persons gathered there and apprehended the driver of the said car. Person sitting near the driver seat drove away the car from the spot by hitting his car. The persons caught by the public was later on allowed to go FIR No.34/2011 State Vs. Israr Malik and ors Page No. 24/74 away. After 15­20 days of the said incident, police came at his shop alongwith two persons and made inquiries from him about the incident and he narrated the same before the police. He had pointed out towards accused Israr Malik and stated that he is driver of the said car. He further stated that he cannot identify the other accused as he ran way with the car from the spot. Police recorded his statement.

This witness was cross­examined by Ld. Addl. PP for the State after declaring him hostile. In his cross­examination he admitted that he had identified both the accused persons who where brought to his shop by Delhi police as driver of the car and another person who fled away with car from the spot. He did not tell the number of Fortuner car as DL 4C EN 3609. However, he admitted that 'ARMY' in red colour was written on front and rear glass of the car and driver and occupant of the car were in drunkard condition and he identified accused Ranjit as the person who fled with car from the spot after the incident. He further admitted that there were three persons in all in the car when they struck against boggy and his vehicle was Tata 407 bearing No. UP­13C­ 3086.

During cross­examination by the accused persons, he stated that he was a planted witness. Police took photocopy of RC of TATA 407 from him but the same was not shown to him in court during his examination. Photographs of the vehicle were taken by the police but the same were not shown to him in court. He had denied the suggestion that he had identified the accused persons in court at the instance of the police. PW27 Israr Babu, alternate Nodal Officer, Vodafone Servcice Ltd. He was working there since 2010. He had brought original customer application form (CAF) in respect of mobile SIM No. 8447627548 alongwith ID proof i.e. election I card Ex. PW7/A and CDR for the period from 2.2.2011 to 5.2.2011 FIR No.34/2011 State Vs. Israr Malik and ors Page No. 25/74 Ex. PW27/B. He had also proved the certificate u/s 65B Indian Evidence e Act Ex. PW27/C and further submitted that earlier on police request Anuj Bhatia, Nodal Officer had provided the above information which was collectively Ex. PW727/D and certificate Ex. PW27/E. Aforesaid SIM was used in the name of Raju S/o Sardar Singh R/o B­1147, Rajiv Colony, Sahibabad, Ghaziabad, UP. PW28 Ravi Kumar was Photographer running studio in the name of Jyhoti Studio at Karhera Colonhy who had proved the photographs Ex. PWE12/A taken by him.

During cross­examination he had stated that the photographs were taken from digital camera and photograph Ex. PW12/B does not show the background of the place where the dead body was lying. He has further stated that after seeing the photograph it could not be ascertained whether the said body was lying in the jungle, farm, field, in room or any house. All other formal suggestions were denied by him as incorrect.

PW29 Vijay Singh was resident of village Khera, Mohan Nagar Ghaziabad. He had deposed that on 301.2011 in the morning he was going towards his fields and on the way he noticed that one dead body was lying in a plot near Kanha Upvan and crowed had gathered there. Police were also present and engaged in sealing the dead body and preparing panchnama of the dead body. He saw the face of the dead body. He signed the panchanma Ex. PW29/A as a witness. His uncle Naresh Kumar was also present there who had subsequently passed away. His statement was recorded by the police.

PW29 was declared hostile and cross examined by Ld. Addl. PP for the State. During cross­examination by Ld. Addl. PP for the State he had categorically denied that on 18.3.2011 IO/Insp. Harender Singh met him in connection with this case and shown him the photographs of the deadbody of the deceased to him. However, he admitted it to be correct that the deadbody FIR No.34/2011 State Vs. Israr Malik and ors Page No. 26/74 was of a 25 years old male having dark complexion which was lying about 100 meters away from Jal Board towards northern side from the road side and panchnama was prepared by SI Resham Singh.

During cross examination by Ld. Defence Counsel, he stated that he could not tell the description of clothes/dress worn by the said person. He voluntarily stated that dead body was sealed. He stated that since the dead body was sealed, he could not say what clothes/dress was worn on the lower or upper part of the body. He admitted it to be correct that face was not open. He had not remembered the owner of the plot. Plot owner was not called by police in his presence. Praveen Kumar, Narender Kumar (since deceased), Jitender and Yogender were present in the crowed of around 50 people at the spot. PW30 Jitender was another villager who had corroborated the statement of PW29 on all the material aspect with respect to the dead body of the deceased. He stated that on 31.1.2011 he alongwith other villagers -Naresh, Parveen, Amit and Yogender reached there at the spot where dead body of a male 24­25 years of dark complexion was lying in a plot. SI Resham Singh has conducted panchnama proceedings as Ex. PW29A in his presence. He had also identified the photographs of the dead body on 31.1.2011.

During cross­examination he had stated that Kanha Park falls under jurisdiction of Nagar Nigam, Ghaziabad. Virender Chauhan was Pardhan of the village whose signatures on the panchnama were not taken by the police. However the panchnama was firstly signed by Amit and thereafter he had signed the same. All other suggestions were denied by him as incorrect. PW31 Dr. K N Tiwari had deposed that on 31.1.2011 he was posted in MMG Hospital, Ghaziabad as Sr. Consultant Surgeon. On that day he had conducted the postmortem examination of an unknown male aged about 25 years at about 3:30 PM. The dead body was sent by SO, PS Sahibabad through Ct. Gajender FIR No.34/2011 State Vs. Israr Malik and ors Page No. 27/74 Singh and Ct. Jagarnath Singh in sealed state, identified by said constables. He had stated that duration of death from the time of examination was half to one day before. Body was of average built, rigor mortis was present on whole body. There was no sign of decomposition, eyes were closed and congested.

5. In the postmortem report, antemortem injuries were reported as under:

"1. Horizontal ligature mark on middle part of neck 2 cm below thyroid cartilage on anterior and lateral aspects. Seize 12 cm x 1 to 1.5 cam. Extravasation of blood seen in subcutaneous tissues of neck.

2. Internal organs, larynx and trachea were markedly congested and contained blood mixed froath. Both lungs deeply congested. Heart contained blood on both sides. Other internal organs were congested."

In his opinion, death was due to asphyxia as a result of ante mortem strangulation.The postmortem report was proved as Ex. PW31/A. He had stated that the clothes and articles found on the body were mentioned in the said report and same were handed over to the police. The same were identified by him as Ex. PW31/A and Ex. PW31/P­1.

During cross­examination by Ld. Defence Counsel, he had stated that Police papers received by him were ten in numbers including panchnama. It also contained khakha which mentioned the details of injuries. He did not find any specific mark of identification written by the police. Photograph and finger prints were taken by police and this fact was mentioned in police papers no. 4 &

5. He had tallied the seal present on the body of deceased with seal present on the police papers in the presence of the police officials who identified the dead body. He had noticed that the duration of injuries (12 hours injuries) as "fresh". he had further stated that the pullanda shown to him in the court was not bearing his seal. The description of the articles found on the body of deceased were not mentioned in his postmortem report. He did not make any note of the FIR No.34/2011 State Vs. Israr Malik and ors Page No. 28/74 description of the articles found on the body of deceased before conducting postmortem. He had further stated that rigor­mortis might start one hour after death in month of January and involved whole body in 8 to 12 hours that means it remained there for approximately12 hours and in next 12 hours it started passing off. Exact time of death in those 12 hours when rigor­mortis was completely over the body could not be ascertained in this range. In PMR Ex. PW31/A, he had mentioned that rigor­mortis was present all over the body of deceased. He had further stated that taking the extent of injury in this case/person, death would be instantaneous or within a very sort time of causing of the injury. There could be 4­6 hours extra time either side in ascertaining the time since death.

PW32 Parveen Kumar had stated that he came to know from the public persons that one dead body was lying in a plot situated at Kanha Upvan and accordingly reached there. Police came there and carried out proceedings in respect of identification of the dead body. He had signed the Ex. PW29/A i.e. panchnama of the dead body as witness. Yoginder, Naresh, Jitender and perhaps Amit were also present there at that time. He further stated that he had noticed that dead body was having some injuries in the neck and back. The witness was shown 8 photographs in the court and then he had stated that photographs Ex. PW12/A (colly) were of the dead body of the deceased. He was not cross examined by Ld. Defence Counsels despite opportunity. PW33 HC Zile Singh has taken photographs EX.33/A (colly) on 17.2.2011. there negatives were proved as Ex. PW33/B (colly). During cross­examination by Ld. Defence Counsel he had stated that six chance prints from the car in question were lifted by ASI Madan Lal, Finger Print Expert but he was not aware if those chance prints were seized by the police or not. He also failed to state if any blood stain was found in the car at the time of inspection or not or FIR No.34/2011 State Vs. Israr Malik and ors Page No. 29/74 window glasses of the car were coated by films or side glass was broken. He had denied the other formal suggestions as incorrect. PW34 Parshant Kumar was Nodal Officer, Vodafone Servcice Ltd. He had brought original customer application form (CAF) with photograph of consumer affixed on it, with respect of mobile SIM No. 8447627548 alongwith ID proof i.e. election I card Ex. PW34/A (colly). Aforesaid connection was subscribed to Raju S/o Sardar Singh R/o B­1147, Rajiv Colony, Sahibabad, Ghaziabad, UP whose alternate number was 9718080949. He had also proved CDR for the period from 2.2.2011 to 5.2.2011 Ex. PW34/B and PW34/C and ID chart Ex. PW34/D. He has also proved certificates issued by him u/s 65B Indian Evidence Act which are Ex. PW34/E and Pw34/F. He had also seen certain documents from judicial file relating to the present mobile phone and stated that the same were produced by Israr Babu, Nodal Officer and identified the signatures of Anuj Bhatia the then Nodal Officer on the said documents and further stated that he had deposed on the basis of the record. During cross­examination by Ld. Defence Counsel he stated that he was not the custodian of CAF and record in this regard was maintained by CS Deptt. They used to send requisition to CS Deptt for providing the original CAF for production in court during evidence. Documents of the customer were verified before issuing the phone connection. He had denied that CAF Ex. PW34/A was not applied by Raju. Other formal suggestions related to the mobile phone were denied by him as incorrect. PW35 SI Ram Singh He deposed that he was posted at PS New Friends Colony in the year 2011 and had joined investigation of this case with IO/Insp. Harinder Singh on various dates. On 23.2.2011 he alongwith IO and HC Ram Singh went PS Sahibabad, Ghaziabad, UP where inquest papers of deceased alongwith exhibits, sealed pullandas with sample was were taken from HC Kalu Ram, MHC/CM vide seizure memo Ex. PW35/A. On 25.2.2011 on the FIR No.34/2011 State Vs. Israr Malik and ors Page No. 30/74 instructions of IO he alongwith HC Virender singh went to PS GTB Enclave and obtained case file pertaining to FIR No. 35/2011, PS GTB Enclave. He also obtained the case property of FIR No. 35/11 from MHC/M vide RC No. 26/21/2011 and seized the same vide memo Ex. PW3/A. He returned to PS New Friends Colony and handed over the case file to IO and deposited the case property with MHC/M. On 28.2.2011 he alongwith IO Insp. Harinder Singh, Ct. Jitender and Ct. Jabbar reached in the court of Ld. ACMM, Saket where accused Ranjeet Singh was being produced by UP Police. IO after taking permission from the court, interrogated accused Ranjeet and arrested him vide arrest memo Ex. PW35/B. Accused made disclosure statement Ex. PW35/C with respect to involvement of his associates/co­accused persons­Vijay, Israr Malik and Sonu.

On 1.3.2021 he alongwith IO, Ct. Surender Singh and Ct. Bharat Lal again came to Court of Ld. CMM where accused Vijay and Israr Malik had surrendered. After taking permission from the court accused Vijay was arrested and his disclosure statement was recorded which were Ex. PW35/D to Ex. PW35/G respectively. Two days PC remand of accused Vijay and Israr Malik was also taken by the IO. Thereafter, accused persons were got medically examined and then they came back to PS. From PS accused Israr Malik led the police party to the house of co­accused Sonu at village Mahau, PS Siyana, UP where accused was not present. Father of Sonu told the police that around 2 ½ years ago Sonu had come with accused Israr Malik in the village in a Fortuner Car and thereafter they came back to Delhi. On 23.2011 he again joined investigation with the IO. Ct. Parmod and Ct. Sajay were also with them. Accused persons­Israr Malik, Vijay and Ranjeet led the police party to the place of occurrence i.e. in front of Mahavir Dharam Kanta, Ashram Chowed Road, leading towards Dhaula Kuan and pointing out memo Ex. PW35/H was prepared by the IO in this regard. Thereafter the police team alongwith the FIR No.34/2011 State Vs. Israr Malik and ors Page No. 31/74 accused persons went to PP Hindan Bae, PS Sahibabad, UP and met SI Resham Singh. IO alongwith SI Resham Singh, accused persons and his police team went to jungle of Karea, where all the accused persons disclosed that they had thrown the dead body of driver of Fortuner car and pointing out memos Ex. PW35/I to PW35/K were prepared by the IO. IO also prepared the site plan at the instance of SI Resham Singh. IO also recorded statement of SI Resham Singh. Thereafter, the accused persons led police party at a place i.e. dry drain in front of open plot of Wimpy Factory opposite H. No. A1378, Rajeev Colony, Ghaziabad UP where the accused persons had burnt clothes i.e. pant­shirt and jacket of accused Ranjeet Singh and gamcha (towel) of accused Sonu. Ramphool Sharma and Agan Lal joined the investigation with police. At the instance of accused Israr and Ranjeet above said semi burnt clothes were recovered and kept in a polythene and converted into a pullanda with seal of RS. The exhibits were seized vide memo Ex. PW25/A. Accused Vijay disclosed that locket of deceased was with him and he got the same recovered from his house No. A­1250, Rajeev Colony, Ghaziabad, UP which was wrapped in a white paper and seized vide memo Ex. PW35/L. Name of deceased Sandeep and Lalita was written on one side and image of Goddess Mata was on other side of the said locket. Locket was kept in a match box and converted into a sealed pullanda with seal of RS before seizure. Thereafter the accused persons took the police party to a service centre near Rajsheree Vaishnav Dhaba, Partap Puron Delhi­Meerut National Highway where they had got washed and rubbed Fortuner car to remove the blood stains in the car. The accused persons were identified by one Mintu. Mintu told the police that when he confronted the accused persons regarding the blood stains in car, the accused persons told him that a quarrel took place in a marriage function and injured was shifted to a hospital in the said car. Thereafter accused persons led the police party to shop FIR No.34/2011 State Vs. Israr Malik and ors Page No. 32/74 no. 104, Rizwan Market, Meerut Cantt, Meerut where they got tinted the window glasses of the car. They owner identified the accused persons and further told that the accused persons paid him Rs. 1000/­ for installing the tinted glasses in their fortuner car.

On 18.3.2021 he alongwith IO/Insp. Harinder Singh and Insp. Mahesh (draftman) reached PP Hindon Base, PS Sahibabad from where they took SI Resham Singh and went to place of recovery of dead body where Insp. Mahesh prepared rough site plan at the instance of SI Resham Singh. Threafter, they went to village Kareda and recorded statement of Panch Gawah (five witness) in respect of inquest proceedings at the time of recovery of the dead body. On 26.3.2021 SI Suman from GTB Enclave came to PS New Friends Colony and produced some documents to the IO in his presence which were seized vide memo Ex. PW35/M. He has identified the accused persons and the case property which were got recovered by the accused persons as Ex/. PW35/1 and PW35/2 (colly). During cross­examination by Ld. Defence Counsel to a specific question, he had stated that one silver locket belonging to the deceased, recovered from accused Vijay by Shahibabad police, was taken into possession in this case by the IO. He admitted the suggestion as correct that accused Ranjit was interrogated in his presence. At the instance of accused Ranjeet, burnt clothes of Ranjeet and burnt towel belonging to accused Sonu were recovered by them in the presence of two public persons. Israr Malik was produced by UP police in Court. Statement u/s 161 CrPC of father of accused was not recorded. No public persons was examined by the IO with respect of identification of dead body as the same was already recovered and exercise was done by the local police of UP. IO had not got the burnt clothes specifically identified from any public persons as the same were seized from the spot. IO has inquired from Mintu and Rafiq as to the clothes worn by the accused persons. At the time of FIR No.34/2011 State Vs. Israr Malik and ors Page No. 33/74 recovery of locket, wife of accused was present but she was not examined u/s 161 CrPC. All other formal suggestions were denied as incorrect by PW35. PW36 Insp. Harender Singh He was the IO of the case. he had stated that on 21.02.2011 when he was working as Inspector PS New Friends Colony, Duty Officer gave him copy of FIR and original rukka for investigation of this case. Thereafter, he alongwith HC Manoj reached to PS GTB Enclave where he examined Inspector Ravinder Ahlawat and SI Suman Kumar. Thereafter he alongwith staff reached at Mohan Nagar Ghaziabad and recorded statement of other witnesses and came back to PS GTB Enclave. He got the Fortuner Car examined by CFSL team. CFSL team gave him 11 articles from the car which he seized vide seizure memo and prepared inspection memo of the said car. He got recorded the statement of other witnesses namely Raju, his mother Santosh and Dilbahadur U/s 164 Cr.PC. He recovered kettle and glass from the vehicle during inspection of CFSL team. He also got collected inquest papers and pullanda carrying clothes of deceased from PS Sahibabad and deposited the exhibits in the police malkhana. He moved an application seeking production of accused persons­Vijay, Israr Malik and Ranjeet in the court and formally arrested them. The accused were taken on police custody remand. On 01.03.2011 he alongwith all above three accused persons and police officials went to village Karheda, Distt. Meerut where he recorded the statement u/s 161 CrPC of one Rafiq who had pasted black film on the vehicle of the deceased. PW Rafiq also identified the accused persons as the persons who had come to his shop for said purpose. Thereafter, police team alongwith accused persons went to Parta Pur Service Station, Distt. Meerut where one Mintu met them, who told that he cleaned the blood from the vehicle in question. His statement under section 161 CrPC was recorded by him. During the course of further investigation, on the request of accused Vijay, he got recorded his statement U/s FIR No.34/2011 State Vs. Israr Malik and ors Page No. 34/74 164 Cr.PC. He went to Kuchesar Fort and recorded statement u/s 161 CrPC of one Aidal Singh who had seen the accused persons as the occupants of the vehicle in question. At Kuchesar Fort he recorded the statement of another witness namely Dinesh, Mithai shopkeeper who stated that on the said date the car in question was being driven by the accused Israr Malik. He also recorded statement of PW Dinesh. Accused persons­­Ranjeet and Israr were identified by Aidal and Dinesh vide memo Ex. PW36/A and PW36/B. Accused Sonu could not be arrested and he was subsequently declared Proclaimed Offender. PW­ 35 had further stated that he collected the exhibits from PS GTB Enclave and deposited them in malkhana of PS NFC. He recorded the statements of SI Resham Singh of PS Sahibabad and one photographer who had taken the photograph of the dead body besides the witness to the inquest proceedings. Document regarding pullanda of clothes of the deceased and the sample seal of SI UPP were also seized by him. He further stated that clothes of accused Ranjeet and Towel of accused Sonu were got recovered by accused Ranjeet which were taken into police possession vide a seizure memo Ex. PW25/A. Seizure memo of documents and photographs Ex. PW35/M were prepared. Disclosure statements of accused Vijay, Ranjeet, Israr Malik (Ex.PW35/E, PW35/C and Ex. PW35/G) were recorded. The accused persons had also pointed out the place of occurrence and pointing out memos were also prepared. Accused Vijay took the police team to his house at Mohan Nagar from where he got recovered the locket of deceased which was seized vide memo Ex.PW35/L. Scaled site plan was got prepared through SI Mahesh Kumar (draftsman) Statements u/s 161 CrPC of the witnesses at different stages of investigation were recorded. Exhibits were sent to FSL. After completion of investigation charge sheet was filed in the court.

During cross­examination conducted on behalf of the accused persons PW36 FIR No.34/2011 State Vs. Israr Malik and ors Page No. 35/74 had admitted that finger prints lifted from the car did not match with the finger prints of either of the accused persons. Car was sent to service station to wash the blood stains. He did not seize bill showing washing of car. Blood stains were decipherable from the mats of the car. Accused Vijay had not disclosed about his intention to record confessional statement. No documents with respect to shop or work place of the witnesses namely, Dinesh, Rafiq and Mintu etc were taken into possession. He did not inquire Vishnu with respect to the calls made by him from the phone of deceased. Other formal suggestions regarding burnt, semi burnt clothes of accused persons, recovery and discovery of mobile phone etc were denied by him as incorrect.

ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL

6. Ld. Addl. PP for the State submitted that the entire case is based upon the circumstantial evidence and the prosecution has successfully proved its case beyond reasonable doubt against the accused persons by establishing material aspects of the circumstantial evidence. It was contended that it is an undisputed fact that deceased driver Sandeep Mandal was driving the aforesaid vehicle of the complainant and this fact inter alia further proved by the complainant himself in categorical terms. As the complainant firstly got registered the FIR against the deceased driver under section 406 IPC at PS, GTB Nagar and secondly after registration of FIR at PS, GTB Nagar, he had informed the IO telephonically on 13.2.2011 about IMEI Numbers of the mobile phone of the deceased. Further, on 20.2.2011 i.e. one day prior to the registration of present case at PS, New Friends Colony, the complainant had produced the box/container of FIR No.34/2011 State Vs. Israr Malik and ors Page No. 36/74 mobile phone make G­5 of the deceased before the IO/SI Suman Kumar who seized the same vide a memo Ex. PW15/D. This is the first circumstance through which the clue was found and accused persons were arrested in this case. The mobile phone instrument of deceased driver was recovered from accused Israr Malik vide seizure memo Ex. PW15/H.

7. Further, it was submitted that PW Raju has fully supported the prosecution case as he proved the chain of transfer of above mobile phone from him to Israr Malik through Ranjeet as he had deposed in the Court that firstly, accused Ranjeet had pawned said mobile phone instrument with him for Rs.1000/­. He then gave the said phone to his nephew Vishnu (PW5) and said Raju put his own SIM in the said mobile which was used by Vishnu from 2.2.2011 o 5.2.2011 and CDR to this effect has been proved on record as PW27/B supported by affidavit under section 65B Indian Evidence Act vide Ex PW27/D. The Customers Application Form (CAF) of Raju regarding the said SIM was also proved by PW27 as Ex. PW­ PW27/A. On 5.2.2011, accused Ranjeet took back his aforesaid phone after returning the mortgaged amount from him. Raju further told that said Ranjeet had given the said mobile phone to one Israr Malik. The recovery of towel which was used for strangulation of the deceased and the clothes of accused Ranjeet which he was wearing at the time of incident, (in burnt condition) were recovered at the instance of accused Ranjeet vide a seizure memo Ex. PW25/A. The silver locket having photo of Mata (goddess) at one side and the name of Sandeep and Lalita appearing on the other side of the locket, belonging to the deceased which the deceased was wearing at the time of inciden, was recovered at the instance of Vijay Kumar from his residence. The said locket was identified by the wife and brother of the deceased in the Court. The FIR No.34/2011 State Vs. Israr Malik and ors Page No. 37/74 seizure memo of the said locket is proved as Ex. PW35/L.The vehicle in question was also recovered at the instance of the accused persons. The said car inspected vide a memo Ex. PW5/A on22.2.2011. Blood stains were found inside the car. Further the said car with mobile phone of deceased was seized by police of PS, New Friends Colony vide Ex. PW3/A after handing over the same by police of PS GTB Nagar. The dead body and the case property has been duly provided by the prosecution witnesses. The accused persons had pointed out the place of occurrence and the place where the dead body of deceased driver was dumped by them.

8. LD Addl PP further contended that the postmortem report is also consistent with the disclosure statement of the accused persons particularly because the disclosure statement of accused Israr was recorded on 1.3.2011 whereas the IO had received the postmortem report only on 23..2.2011 which clearly shows that the accused had disclosed the manner in which the murder was committed by them and this fact was not in the knowledge of the police by that time. Further more, statement of accused Vijay recorded u/s 164 CrPC also consistent and corroborated all the circumstances found during the course of investigation i.e. postmortem report, the facts revealed in the disclosure statements of co­ accused persons, accident of the car in question by accused persons after the committing murder of deceased.

9. Further, PW16 Smt. Santosh, mother of witness Raju Malik and PW5 Vishnu, nephew of PW2 Raju had also supported the case of the prosecution on the point of mobile phone pledged by Ranjeet to Raju Malik. PW1 Pradeep Mandal, brother of deceased apart of the fact of identification of the case property i.e. locket of deceased, he had also FIR No.34/2011 State Vs. Israr Malik and ors Page No. 38/74 deposed about the mobile that the same was provided to deceased by his employer.

10. It was further submitted that the facts about the accident of car in question while occupied by the accused persons after committing the murder of deceased driver, discovered in pursuance of disclosure statements of the accused persons because PW24 Adal Kumar and PW26 Dinesh Kumar proved this fact that the said car met with an accident when the accused persons were occupying the same. Further more, PW23 Mintu had also proved this fact that the accused persons had brought the aforesaid car at his Service Station for washing and he noticed the blood stains on the met of the car and accused persons told him that the said blood had come there because they took one injured to hospital. Moreover, this witness had also identified the accused persons when they were brought to the said service station by the police in pursuance of their disclosure statements. PW17 Rafiq Ahmed, had also supported the case prosecution on this aspect.

11. It was also argued that after registration FIR and during the course of investigation accused Vijay had voluntarily made a statement u/s 164 CrPC before the Ld. Magistrate on 7.3.2011 wherein he had categorically stated about his own involvement in the present case alongwith his co­ accused persons. The said statement has been proved as Ex. PW22/O. Accused Vijay has never retreted the said statement, therefore, the said statement is admissible and readable against him and his co­accused persons.

12. It was further contended by Ld. Addl. PP for the State that the accused were given an ample opportunity to explain the circumstances proved against them under section 313 CrPC but they had failed to explain any FIR No.34/2011 State Vs. Israr Malik and ors Page No. 39/74 circumstance. Rather, they chose to kept mum. Although the accused has a legal right to remain mum during his examination under section 313 CrPC, but in case of circumstantial evidence, mere denial of the accused is not sufficient to discard the truthfulness of the evidence led by the prosecution.

13. Ld. Addl. PP for the State had further contended that although to prove the motive is not mandatory in all criminal cases but in the present case, the motive of the accused persons i.e. robbery has also been proved. Therefore, the complete chain of circumstantial evidence is proved as the circumstances relied upon by the prosecution have been fully established and cumulative effect of all the facts so established are consistent only with the hypotheses of guilt. It was submitted by the State that it is not necessary that the prosecution must meet any and every hypothesis put forward by the accused. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.Thus, it was submitted that accused ought to be convicted.

14. Per contra Ld. Counsel for accused submitted submitted that there is no direct or indirect evidence to connect the accused persons with the alleged crime. He further submitted that accused persons have been falsely implicated by planting alleged recoveries on them. He further submitted that even the chain of the alleged circumstantial evidence, as projected by the prosecution, is incomplete/broken. There is no documentary evidence on record that the mobile phone allegedly used by the deceased was provided to him by his employer as averred by PW1 in his examination in chief. No evidence has been collected and proved by the prosecution that the alleged Fortuner car belonged to the complainant or that deceased was FIR No.34/2011 State Vs. Israr Malik and ors Page No. 40/74 the employee of the company, who is the registered owner of the vehicle in question.

15. It was also argued that the recoveries of locket and empty mobile phone box from the car in question are also doubtful in as much as those articles were recovered by the police on 25.2.2011 whereas, according to PW20 he had handed over the same to the police after taking the vehicle on superdari on 16.3.2011. It was contended further that statement of PW2 Raju Malik through whom the police had allegedly reached accused Israr Malik on the basis of CDRs of phone of the accused is also not trustworthy in as much as he is not a witness to arrest of accused Israr Malik. According to PW2 accused Israr Malik was arrested from his house in his presence whereas as per the IO he was arrested from Apsara Border. Complainant PW20 in his first statement made to police of PS GTB Enclave has nowhere claimed that deceased was having any phone with him and/or using the same at when the car allegedly went missing. The alleged mobile was planted to fill the gap in the prosecution story to falsely implicate the accused persons.

16. It was highlighted by Ld Counsel for the accused that no finger prints of the accused persons were found on the car in question to connect them with the alleged crime. No public witness was joined to the alleged recoveries by the police viz a viz towel and burnt clothes. No document has been collected by the police to prove on record that car in question was ever washed at the service station of Mintu at Partapur, UP. The alleged mobile phone and locket were never put to judicial TIP and their identification by the prosecution for the fist time in the Court is no identification in the eyes of law against the accused persons and the same cannot be relied upon to base conviction of the accused persons. No call FIR No.34/2011 State Vs. Israr Malik and ors Page No. 41/74 details record with respect to the phone of complainant PW20 was collected and proved on record to show that PW20 had ever made any call to the deceased driver on the date when the car driven by the deceased driver had gone missing or immediately prior to the date of incident. This material chain of circumstances is incomplete and fatal to the case of the prosecution.

17. It was further contended by Ld. Counsel for the accused persons that there are material contradictions in the testimonies of the prosecution witnesses which goes to the root of the prosecution which belies the prosecution story. The chain of circumstances is not complete. The prosecution has completely failed to establish the guilt of the accused person and nobody can be convicted on the basis of mere suspicion or hypothesis. It is further argued that an accused person cannot be compelled to be a witness against himself. The alleged statement u/s 164 CrPC was got recorded by the police while he was in police custody under threat and pressure. Moreover, the said statement has not been proved by the prosecution in accordance with law and mere exhibiting the same during examination of IO, is not sufficient. Since the said statement was not proved by the author or the giver, the same cannot be said to be legally proved and the cannot be read against any the of the accused persons including accused Vijay because accused Vijay was not examined by the police as a prosecution witness. Not only this but also, the application filed by the IO to make accused Vijay as approver had already been dismissed by the Court, against which no revision/appeal was filed by the prosecuting agency and the said order of dismissal of the aforesaid application had become final and binding upon the prosecution and hence the statement u/s 164 CrPC of accused Vijay is of no consequence.

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 42/74

Hence, the same cannot be read in favour of the prosecution and against the accused persons. Lastly, it was submitted that it is an admitted preposition of law that burden to prove the case lies on the prosecution which never shifts. The defence version may be false but prosecution cannot derive any advantage from the falsity or other infirmities of defence version so long as it does not discharge the initial burden of proving its case beyond shadow of reasonable doubt.Thus, according to Ld Counsel for the accused, a finding of acquittal ought to be recorded qua the accused herein.

STATEMENT OF REASONS FOR THE DECISION Circumstantial evidence

18. As is explicit from a perusal of the facts, there were no eye witnesses to the commission of this crime. Thus, it is pellucid that the prosecution case hinges upon circumstantial evidence. It would be thus apposite to recapitulate the law on this aspect. In this context, it would be profitable to peruse the following extracts of the locus classicus Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116:­ "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 43/74

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) 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, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

19. Thus, one has to embark on the quest to examine each of the links in the chain of circumstances vide which the prosecution seeks to establish its case on the touchstone of the above mentioned principles, in order to ascertain whether all the links in the chain are complete. It has also to be born in mind that it is not imperative that the prosecution must meet every hypothesis put forward by the accused nor must the prosecution evidence be rejected on slight doubts.

Deceased was the driver of the vehicle.

20. The State had contended that it was established that the deceased driver was Sandeep Mandal. There cannot be any dispute qua this fact. PW­20 Rajesh Pachesia deposed that the Fortuner car bearing registration no. DL4CNE5629 was registered in the name of a company, in which his FIR No.34/2011 State Vs. Israr Malik and ors Page No. 44/74 friend was a director. He averred that on 30.01.2011, the said car was lying parked at his residence, and at about 08:15 PM his driver took his cousin to Dilshad Garden. It was further deposed by him that since it was late at night, he told the driver to keep the car in his custody overnight and to contact him in the morning. Thereafter, when the driver did not contact him the next day, the witness went to the police and made a complaint. PW­15 SI Suman Kumar corroborated this version and deposed that on 02.02.2011 complainant Rajesh Kumar came to him and made allegations that his driver Sandeep Mandal misappropriated his Toyota Fortuner car bearing registration no DL4CNE5629. The witness further deposed that statement of complainant was recorded, which is PW15/A, pursuant to which FIR No. 35/2011, u/s 406 IPC was registered at PS GTB Enclave. PW­20 Rajesh Pachesia further deposed that on 21.02.2011, upon receipt a phone call from PS Dilshad Enclave, he reached there and police took him to PS Sahibabad. There he was shown the photograph of his driver, and the witness identified the photograph as being the photograph of the dead body of his driver.

21. Even PW­1, Pradeep Mandal also identified the photograph and clothes of his deceased brother Sandeep Mandal. PW­1 had also deposed during his examination­in­chief that Sandeep Mandal was working as driver with one Rajesh and that on 30.12.2011, his brother had gone for his duty in the evening to never return back home. Thus, it was cogently established that deceased Sandeep Mandal was the driver of PW­20, and was driving his Toyota Fortuner No. DL4CNE5629 on that fateful night.

Mobile phone belonged to the deceased

22. The case of the State is that as per PW­12 Inspector Ravinder Ahlawat, the deceased Sandeep Mandal was using a dual SIM mobile phone. The FIR No.34/2011 State Vs. Israr Malik and ors Page No. 45/74 make of the mobile phone was G­5 AP3, bearing no IMEI No. 359494030081006 and 359494030382503. Ld. Counsel for the accused had vehemently contended that none of the witnesses could give the description of the mobile phone allegedly used by the deceased. It was contended that neither PW­1 Pradeep Mandal, brother of the deceased nor Pw­20 Rajesh Pachesia, employer of deceased driver nowhere stated that the deceased was using any mobile phone, nor could give a description of the said mobile phone. It was remonstrated that TIP (Test Identification Parade) of case property viz. mobile phone was not done from the IO from the brother of the deceased or from the employer. Ld counsel for the accused further sought to assail the recovery of the box of the mobile phone. It was contended that recovery of the mobile phone box was shown on 25.02.2021 vide EX PW3/A whereas as per seizure memo Ex. PW15/D the complainant handed over the box of mobile phone on 20.02.2011. Further even on inspection by crime team on 22/02/2011, no mobile phone box was recovered from the vehicle in question. These contentions, at first blush, give an inference that no prosecution witness could link the phone with the deceased. However, on careful scrutiny, the contentions cannot be countenanced, as can be seen from the succeeding paragraph.

23. As far as TIP of case property viz. mobile phone is concerned, in this world of technology and ubiquitously found mobile phones, it would be difficult, if not impossible, for a relative or friend to identify mobile phone of another. In any case, it is not the case of the prosecution that the said mobile phone was gifted to the deceased by his brother or his employer, that they would be in a position to identify the said phone. Thus, non­ holding of a Test Identification Parade of the mobile phone in the present matter would not be fatal to the case of the prosecution.

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 46/74

24. Further, PW­15 SI Suman Kumar deposed that during investigation on 13.02.2011 complainant Rajesh informed that his mobile phone bearing two IMEI numbers was with the driver of the vehicle, and thus the phone was kept on surveillance. The said witness collected the CDR of the same, and deposed that on 20.02.2011 complainant Rajesh came to him and handed over the carton of the said mobile phone to him, which was seized vide memo Ex. PW15/D. A perusal of the said seizure memo also reveals that the complainant had also telephonically informed the IO on 13.02.2011 about IMEI numbers of the mobile phone of the deceased. Further, PW­12 Inspector Ravinder Ahlawat also deposed that he was entrusted file of case FIR No. 35/2011 u/s 406/482, PS GTB Enclave, for investigation and in that case the driver Sandeep Mandal was using a dual SIM mobile phone which was missing. Significantly, PW20 Rajesh Pachesia categorically deposed during his examination in chief as thus :

"In the car I had found one empty mobile phone box and I handed over the same to the IO who seized the same vide seizure memo already Ex. PW 15/D bearing my signatures in portion X"

25. Moreover, as far as the recovery of box of mobile phone is concerned, a perusal of Ex. PW 15/D makes it explicit that the box was handed over by the complainant to the police officials of GTB Enclave on 20/02/2011. Thereafter, the mobile phone box and other articles were handed over from police officials of GTB Enclave to police officials of New Friends Colony vide Ex. PW3/A on 25/02/2011. In this context, PW3 head Constable Virender Singh deposed that the box was seized by SI Ram Singh in PS GTB during investigation. Thus, recovery of the box took place on 20/02/2011 vide seizure memo EX 15/D, and on 25/02/2011 there was re­ seizure by PS New Friends Colony vide Ex PW3/A. Further, no question FIR No.34/2011 State Vs. Israr Malik and ors Page No. 47/74 qua the mobile phone box was put to PW3, PW 15 or PW20, and nothing to the contrary could be elicited in the cross examination of these witnesses. In fact, PW 15 SI Suman Kumar identified the carton/box of the mobile phone and stated that the same carton was handed over to him by complainant Rajesh and seized by him. The witness further denied the suggestion that the said mobile phone was not of the complainant hence no document of ownership was submitted by him to establish ownership of the mobile. Thus, the deposition of the prosecution witnesses and the seizure memo Ex.PW15/D cogently establishes the next link in the chain of circumstances against the accused, ie the phone belonged to the deceased.

Recovery of mobile phone of the deceased from the accused

26. The State contended that the mobile phone was recovered from accused Israr Malik vide seizure memo EX PW 15/H. It was further brought to the fore that PW2 Raju fully supported the prosecution case as he proved the chain of transfer of the mobile phone from him to accused Israr Malik through accused Ranjeet. PW2 deposed that accused Ranjeet had on the said mobile phone instrument with him for ₹ 1000. Raju then gave the said phone to his nephew Vishnu who was examined as PW5. Raju had put his own SIM in the said mobile which was used by Vishnu from 2.02.2011 to 5.02.2011. The State contended that CDR to this effect has been proved on record vide Ex. PW 27/B, duly supported with affidavit under section 65B of the Indian Evidence Act i.e Ex. PW 27/D. It was submitted that the customer application form (CAF) of PW Raju qua the said SIM was also proved vide EX PW27/A. Lastly, it was submitted that on 5.02.2011, accused Ranjeet took back the phone after returning the mortgaged amount to Raju. Raju further stated that Ranjeet had given the said mobile phone to accused Isar.

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 48/74

27. These assertions were vociferously contested by the accused. It was contended that the alleged recovery of mobile phone at the instance of accused Israr Malik is a planted one especially considering the fact that there were no independent witnesses to the effecting of recovery, arrest and personal search of the accused. It was contended that PW 2 Raju Mallik has not supported the prosecution case and his testimony is not trustworthy. It was brought to the fore that the said PW earlier averred that accused Ranjeet handed over the said mobile phone to another accused Israr Malik, and then later tried to improve his statement by stating that "I came to know this fact from my friends that said mobile phone was given to accused Israr by accused Ranjeet". It was submitted that even in statement under section 164 Cr PC i.e Ex. PW 2/A, Raju nowhere stated that the accused Ranjeet met him and he himself informed that he gave the mobile phone to Israr Mallik or that he came to know from his friend that accused Ranjeet gave the mobile phone to accused Israr Mallik.

28. Ld Counsel for the accused also sought to assail the testimony of PW5 Vishnu, to whom the mobile phone was given by PW Raju. It was submitted that in his statement recorded under section 164 Cr PC, PW5 nowhere stated that he knew the accused Ranjeet. Moreover, the said witness did not mention the No. of SIM in his statement under Section 164 Cr PC.

29. Counsel for the accused further submitted that as per the version of PW12 Insp Ravinder Ahlawat, accused Israr Mallik was arrested from Apsara Border at the instance of Raju Mallik. However, this is contrary to the statement of PW2 Raju, who averred that he took police officials to the house of accused Israr, wherefrom he was arrested. Ld counsel for the accused submitted that PW2 Raju Mallik was not the witness to the arrest FIR No.34/2011 State Vs. Israr Malik and ors Page No. 49/74 memo of the accused is nor were his signatures taken on the seizure memo of recovery of mobile phone and personal search memo, thus casting doubt on arrest and recovery of impugned mobile phone from accused Israr.

30. Now, as far as recovery of mobile phone from accused is concerned, it has come in the deposition of PW2 that on 01/02/2011 accused Ranjeet came to his house and asked to give ₹ 1000. Further, ₹ 300 was already given as loan to him earlier. Raju gave him Rs. 1000 in the presence of his mother and thereafter Ranjeet gave the mobile phone to PW Raju. The fact of giving of mobile phone in the presence of the mother has also been corroborated upon the perusal of the testimony of the mother Smt. Santosh, who was examined as PW 16. Both, PW 16 Smt. Santosh and PW2 Raju Mallik have categorically deposed that the mobile phone which was given by accused Ranjeet, was handed over to PW 5 Vishnu for his use. Further, after 45 days when accused Ranjeet came back and gave ₹ 1000 to Raju, Ranjeet took away the said mobile phone.

31. The above testimony is also corroborated by PW5 Vishnu who also deposed that Raju was his maternal uncle, and on 02/02/2011 he was given a white colour dual mobile phone having touchscreen by Raju after inserting one Sim card in the said mobile phone. In his cross­examination, the witness further clarified that the said mobile phone was G5. The said witnesses also identified accused Ranjeet in the court.

32. Both the said witnesses have also deposed that the mobile phone was used between 02/02/2011 to 05/02/2011 by PW5 Vishnu. PW 16 Santosh also deposed on similar lines. Thus, the fact of accused Ranjeet handing over the mobile phone to PW Raju has been substantiated by the testimonies of 3 witnesses. The testimonies of these witnesses are also corroborated by their statements made under section 164 Cr PC viz. Ex. PW 22/C of FIR No.34/2011 State Vs. Israr Malik and ors Page No. 50/74 Santosh and Ex. PW 22/H of Vishnu. Vishnu averred before the learned MM that on 02/02/2011 his mama PW Raju gave him a white colour phone with the screen touch make G5. Further, after referring to a slip from his pocket he mentioned the SIM No. of the phone as 8447627548.

33. The prosecution has also been able to establish that the owner of the above said SIM No. 8447627548 was none other than PW Raju. PW 12 Inspector Ravinder Ahlawat deposed that from the CDR of IMEI numbers of the said mobile it was noticed that one mobile No. 8447627548 was active in one of the dual IMEI and that the owner of the SIM No. 8447627548 was found to be Raju. PW 15 SI Suman Kumar corroborated this version and averred that they collected the records qua the SIM which was used on the said mobile phone, recovered from accused Israr, and according to the CAF (Customer Application Form) of the SIM, it was found to be of Raju. PW 34 Prashant Kumar, Alternate Nodal Officer, Vodafone Idea Ltd. Categorically deposed that SIM no. 8447627548 was subscribed to Raju S/o Sardar Singh. He proved the original CAF bearing photograph of subscriber Raju as EX PW 34/A(colly). PW 27 Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd also proved the original CAF of SIM no 8447627548 along with ID Proof i.e Election ID Card EX PW27/A, and deposed that the aforesaid mobile was issued in the name of Raju. Ld counsel for the accused sought to discredit the testimony of PW34, the nodal officer from Vodafone, and contended that the witness did not support the prosecution case as he could not tell the serial No. at which the original CAF of mobile No. was mentioned or that the maintenance of original CAF was not concerned with the Department where he was posted. These contentions are bereft of any justification, in as much as the original CAF of PW Raju was brought and proved on record.

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 51/74

Thus, it cannot be gainsaid that the SIM no. was of PW Raju. It was this SIM which was inserted in the mobile phone belonging to the deceased, which was robbed by accused herein.

34. It would be pertinent to note that on 20.02.2011 PW 15 SI Suman Kumar was handed over the carton/box of the mobile phone of the deceased which was seized vide seizure memo Ex PW15/D. The said carton/box contained IMEI no. of the mobile phone. PW 12 Insp Ravinder Ahlawat deposed as thus: " In this case driver Sandeep Mandal was using a dual SIM mobile phone, which was missing. From the CDR of IMEI Nos. of the said mobile it was noticed that one mobile no. 8447627548 was active in one of the duel IMEI. The owner of this SIM No. 8447627548 was found one Raju s/o Sardar Singh R/o B­1147, Rajiv Colony, Ghaziabad, U.P"

35. Thereafter, on 21.02.2011 SI Suman went with Insp Ravinder Ahlawat and other police officials to Rajeev Colony where they met Raju, who was the owner of the SIM. Thereafter, at the instance of Raju, accused Israr Malik was arrested, and the mobile phone was recovered from him. PW 15 further deposed that the mobile phone of the deceased was recovered from the possession of accused Israr.SI Suman categorically averred as thus:

" The mobile phone white colour make G­Five. The IMEI No. was tallied and it was found correct and IO mentioned both IMEI No. in the seizure memo.One SIM was found in the mobile. SIM No. and mobile no. was also mentioned by the IO in seizure memo in detail."

36. A perusal of the seizure memo would reveal that the IMEI No.s are 359494030081006 and 359494030382503. Thus, the mobile phone carton/box bearing IMEI No. 359494030081006 and 359494030382503, seized vide Ex PW15/D, were the very same IMEI No.s of the mobile phone recovered from the accused Israr Malik, as is explicit from seizure FIR No.34/2011 State Vs. Israr Malik and ors Page No. 52/74 memo Ex PW 15/H. Other recoveries

37. It is pertinent to note that recovery is a part of investigation and permissible under Section 27 of the Indian Evidence Act. Section 27. 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.

38. In the cause célèbre Pulukuri Kottaya Vs Emperor 50 AIR 1947 PC 67, explaining this facet, it was laid down as follows:

"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 the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as re­ lates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a 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; but clearly the extent ofthe information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. 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"

39. In State of NCT of Delhi v Navjot Sandhu@Afsan Guru (2005) 11 SCC FIR No.34/2011 State Vs. Israr Malik and ors Page No. 53/74 600 , relying on Pulukuri Kottaya, observed that :

"The first requisite condition for utilizing Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more."

40. In Mukesh &Anr. Vs State (NCT of Delhi) (2017) 6 SCC 1 guidelines were laid on how a statement of dis­closure has to be appreciated:

"137 On a studied scrutiny of the arrest memo, statements recorded under Section 27 and the disclosure made in pursuance thereof, we find that the recoveries of articles belonging to the informant and the victim from the custody of the accused persons cannot be dis carded. The recovery is founded on the statements of disclosure. The items that have been seized and the places from where they have been seized, as is limpid, are within the special knowledge of the ac cused persons. No explanation has come on record from the accused persons explaining as to how they had got into possession of the said articles. What is argued before us is that the said recoveries have really not been made from the accused persons but have been planted by the investigating agency with them. On a reading of the evidence of the witnesses who constituted the investigating team, we do not notice anything in this regard. The submission, if we allow ourselves to say so, is wholly untenable and a futile attempt to avoid the incriminating circumstance that is against the accused persons"

41. Prosecution very much relied upon disclosure statements of the co­ ac­ FIR No.34/2011 State Vs. Israr Malik and ors Page No. 54/74 cused , pursuant to which articles of the deceased and those used in the commission of the offence were recovered Thus, recoveries of the articles pursuant to the dis­closure statement made by the accused clearly link his involvement in the commission of the offence

42. Recovery of silver locket of deceased­ The silver locket having photo of Mata/goddess on one side, and the name of Sandeep and Lalita appearing on the other side of the locket, belonged to the deceased which he was wearing at the time of incident. This is the locket which was recovered at the instance of accused Vijay Kumar from his residence vide seizure memo Ex. PW 35/L. The brother of the deceased PW1 Pradeep Mandal had also deposed to the effect that his deceased brother used to wear the silver locket on which the picture of the Devi Mata was engraved on one side and on the other side his name Sandeep along with the name of his wife was written in Hindi

43. PW 13 head constable Dinesh Kumar had deposed that accused Vijay led them to his house No. a 1250, Rajeev colony, Sahibabad, Ghaziabad where Vijay got recovered one silver locket from iron box which was found wrapped in a white paper. The locket was having the photo of Mata at one side and on the other Sandeep and Lalita was written. At that time, according to this witness, Vijay disclosed that the said locket with black thread was robbed by him from deceased and that he had thrown away the said black thread somewhere but locket was kept by him. IO kept the said locket in a match box and prepared the parcel in a cloth and sealed with the seal of RS and took it into possession. The statement of this witness was corroborated by PW 35 SI Ram Singh who averred that accused Vijay had disclosed that locket of deceased was with him and he would get recovered from his house. Thereafter, according to this witness also, accused Vijay FIR No.34/2011 State Vs. Israr Malik and ors Page No. 55/74 took them to his house and got the silver locket recovered and the same was seized vide seizure memo Ex. PW 35/L. The witnesses identified the case property in court also.

44. Recovery of Toyota Fortuner Car­ As far as the recovery of Toyota car is concerned, Ld. counsel for the accused contended that PW19 being MHC(M), did not support the prosecution case as he failed to disclose the No. written on the registration plate. Further, PW19 stated in his cross­ examination that there is no documentary record that the seizure memo which SI Suman, had given to him was deposited in the malkhana. Thus, Ld. counsel contended that the manipulations were done at the instance of the investigating officer. On the other hand, the prosecution had contended that the vehicle in question was also recovered at the instance of accused person. Further, the said car driven by the deceased was seized by PS New Friends Colony vide Ex. PW3/A, after handing over the same by police officials of PS GTB Nagar.

45. At this juncture, it would be an apt to peruse the following statement of PW15 SI Suman Kumar, made during his examination in chief :

"On 16/02/2011 I received the information from PS Sambhawali Distt Ghaziabad that the above said vehicle was found in the area of PS Sambhawali. I went there and found above said vehicle in the malkhana of PS Sambhawali with fake No. plate. I checked the engine and chassis No. and it was found the case property of my case. The same was transferred to our PS. I prepared the seizure memo on the vehicel vide Ex. P 15/C, bearing my signatures at point A. I have mentioned the fake No., engine and chassis No. in the seizure memo in detail".

Thus, this witness has proved the recovery of the car in question.

46. Recovery of towel and clothes of accused Ranjeet­ The prosecution had averred that the recovery of towel which was used for strangulation of the FIR No.34/2011 State Vs. Israr Malik and ors Page No. 56/74 deceased and the clothes of accused Ranjeet which he was wearing at the time of incident, in a burnt condition, were recovered at the instance of accused Ranjeet vide seizure memo Ex. PW25/A. However, Ld. Counsel for the accused had contended that PW13 deposed that it was correct that no witness to the effect of burning of clothes of the accused persons, was found by the IO in his presence. It was submitted that there were no eyewitnesses to the alleged recovery of burnt clothes. However, a perusal of the testimony of PW 36 Insp Harinder Singh would make it explicit that clothes of Ranjeet and towel of co accused was got recovered by accused Ranjeet vide seizure memo already Ex PW25/A, bearing his signatures at point B. Further, PW 35SI Ram Singh also identified the clothes and gamcha/towel before the Court as Ex PW35/2(colly).

47. A reading of the above testimony coupled with seizure memos makes it ab­undantly explicit that the recoveries were effected on from, amongst others, the accused. The factum of the accused being in possession of the mobile phone of the deceased, is a militating circumstance against him, and it is for the accused to explain as to how he came in possession of these articles. The recoveries have been made and they have been proved by the unimpeachable testimony of the prosecution witnesses. The material objects recovered serve as links to corroborate, and they have been used as the law permits. In the instant case, recoveries were made when accused was in custody has been established with certainty. The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness Evidentiary value of Statement of co­accused u/s 164 Cr.PC

48. It is the case of the prosecution the accused Vijay made a confessional FIR No.34/2011 State Vs. Israr Malik and ors Page No. 57/74 statement u/s 164 Cr.PC before the Ld. Magistrate vide Ex. PW22/O, delineating the chronology of events and commission of the crime by him alongwith other co­accused persons. As per Ex. PW22/O, accused Vijay confessed that on 30.01.2011, the other co­accused discussed about snatching money, and had taken lift from the Fortuner car. Israr had sat next to the driver, Ranjeet was sitting behind the driver and Sonu and he sat in the back seat. Sonu took out the pistol and gave it to Ranjeet, who put it on the temple of the driver and made the driver stopped the vehicle. Thereafter, Sonu and Ranjeet pulled the driver in the back seat. When accused Vijay protested, Israr told him to keep quiet. The driver pleaded for mercy however, Ranjeet did not listen and hit the driver with the butt of the pistol. Israr was driving the vehicle. Ranjeet had pinned down the driver and blood was oozing. Israr told to the other accused persons to kill the driver. Again co­accused Vijay tried to protest. Thereafter, Sonu took out his gamcha (towel) and he and Ranjeet strangulated the driver with the same. The driver died in 2­3 minutes. Thereafter, they took the vehicle to UP and throw the body of the driver at Karede Gaon. According to the State, this inculpatory statement ought to entail conviction of the accused persons.

49. However, Ld. Counsel for the accused contended that the co­accused Vijay was influenced by the IO to get the statement u/s 164 Cr.PC recorded. This inference, according to the accused, gets fortified as accused Vijay had moved an application for becoming an approver, application whereof was subsequently dismissed.

50. As far as a confessional statement of co­accused is concerned. It would be apt to peruse the following principles laid down in Rabindra Kumar Pal Vs. The Republic of India (2011) 2 SCC 490:

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 58/74

"64 The following principles emerge with regard to Section 164 CrPC:

(i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence.

(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection.

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.

(vii) Non­compliance with Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.

(x) Confession of a co­accused is a weak type of evidence.

(xi) Usually the court requires some corroboration from the confessional statement before convicting the accused person on such a statement."

51. In the present matter Ld. Counsel for accused placed reliance on the FIR No.34/2011 State Vs. Israr Malik and ors Page No. 59/74 following statement of the Ld. MM Sh. Munish Markan, was examined as PW­22:

" As per record, no time was given to accused Vijay Kumar to re­consider the consequence of his statement which may go against him. No such plea was made by the IO in his application Ex. PW22/M for recording the statement of accused Vijay to the effect that accused Vijay wanted to make a confessional statement."

52. Further, Ld. Counsel for the accused had contended that PW­22 could not admit or deny whether Inspector Harinder Singh influenced the accused for making such statement with an inducement that after giving false statement, he will be acquitted as an approver. Thus, as per the accused, the confessional statement ought not to be relied upon.

53. This contention of the accused is bereft of any legal justification. A perusal of the record reveal that the application for recording statement of accused Vijay, u/s 164 Cr.PC, was made on 03.03.2011, and was marked to PW­22. The police custody of the accused was ending on 03.03.2011, and ostensibly, the Ld. MM fixed the date of recording of statement on 04.03.2011, as is reflected vide endorsement Ex. PW22/L. Thereafter, on 04.03.2011, when the accused was again produced before PW­22, he again fixed another date for recording statement of accused ie on 07.03.2011, which is reflected vide endorsement Ex. PW22/M. Thus, it is explicit that the Ld. MM followed the mandate of law, and ensured that the accused is produced from judicial custody. In other words, the Ld. MM did not straightaway record the statement when the accused was produced from police custody. Further, PW­22 categorically denied the suggestion that on 07.03.2011, the accused Vijay was under the influenced of Inspector Harinder Singh to make statement before the Court regarding the FIR No.34/2011 State Vs. Israr Malik and ors Page No. 60/74 commission of offence. The Ld. MM/PW­22 had satisfied himself regarding the voluntariness and capability of the accused before recording his statement.

54. As far as the statement given by PW­22 during his cross­examination that no time was given to re­consider the consequence of his statement which may go against him, is also of not much relevance. The accused was produced not once, but thrice before the Ld. MM ie on 03.03.2011, 04.03.2011 and 07.03.2011. Thus, the accused had ample time for reflection or re­consideration of consequences that his statement would entail. Moreover, it would be pertinent to reproduce the following extracts of the proceedings regarding recording of statement u/s 164 Cr.PC ie Ex. PW22/R:

"before recording the statement of the witness, I have asked a series of questions to ascertain whether he is capable of making the statement and whether he is making the statement voluntarily to which the he answers in affirmative. I have also explained him that the statement made by him can also be used against him the voluntariness of his statement."

"I have asked his name, father's name, educational qualification, business etc. and he answers the question without any hesitation and in normal manner and I found that the statement and is free from any pressure. Accordingly, let his statement be recorded."

55. It has also nowhere come on record that the accused retracted his confession. In response to the circumstances appearing in evidence against him u/s 313 Cr.PC, particularly the fact that the 164 Cr.PC statement was recorded on his request, the accused Vijay merely responded that 'it is incorrect.' Further, the accused averred that the police influenced and threatened him to falsely implicate him in the present matter if he did not FIR No.34/2011 State Vs. Israr Malik and ors Page No. 61/74 testify the story narrated by the IO. However, this seems to be an afterthought, as no complaint to superior police officers, or to the Court was ever made by the accused. Further, whilst recording his statement u/s 313 Cr.PC, the accused avered that he made the statement u/s 164 Cr.PC before the Magistrate under the influenced of IO. However, this seems to be a mere ipse dixit, as the accused did not step in the witness box to substantiate this claim. Moreover, as observed above, PW­22 took all the necessary care and caution to elicit a voluntary deposition by this accused. Thus, the confessional statement of Vijay, being absolutely voluntary in nature and made after understanding ramifications thereof, is completely reliable. Further, the statement is consistent and has corroborated all the circumstances discovered during investigation ie Postmortem report, disclosure statements of co­accused persons and recoveries pursuant thereto, accident of the car in question by accused persons after commission of the murder etc. Medical Evidence

56. Ld. counsel for the accused had contended that the testimony of PW31 Dr KN Tiwari who conducted the post­mortem examination of the deceased, ought to be discarded, in view of the fact that the post­mortem was not carried out by following mandatory provisions. It was highlighted that before conducting the post­mortem of an unknown body , the details of mark of identification and fingerprints and photo have to be mandatorily taken by the police, and in this case the doctor did not find any Mark of identification in the papers sent by the police.

57. The State,on the other hand, had contended that the post mortem was conducted as per procedure, and that the post­mortem report is consistent with the disclosure statement of the accused persons. There is force in FIR No.34/2011 State Vs. Israr Malik and ors Page No. 62/74 these submissions of the State. PW31 deposed that the body was sent by SO, PS Sahibabad, Ghaziabad through Constable Gajender Singh and Constable Jagannath Singh in a sealed state, identified by the above constables. It has already been established that the Panchnama and other papers were prepared by police officers of PS Sahibabad. Further the doctor about that photo and fingerprints were taken by the police and they were mentioned in police papers No. 4 and 5. Further, he categorically deposed "I tallied the seal present on the body with the seal present in the police papers in the presence of police constable who identified the body." The doctor denied the suggestion that he conducted the post­ mortem in connivance with the police officials to make a false case

58. It was highlighted that the disclosure statement of accused Israr was recorded on 01/03/2011 whereas the post­mortem report Ex PW31/A. was prepared only on 23/02/2011. As per PW 35 SI Ram Singh, the disclosure statement of accused Israr Malik was recorded vide Ex. PW 35/G, wherein it was disclosed that the deceased was killed by strangulation. This disclosure statement gets corroborated from the testimony of PW31 Dr KN Tiwari conducted the post­mortem examination. Qua the examination, the said doctor deposed as thus: "Horizontal ligature mark on middle part of neck 2 cm below thyroid cartilage on anterior and lateral aspects. Seize 12 cm x 1 to 1.5 cam. Extravasation of blood seen in subcutaneous tissues of neck". The doctor categorically opined that death was due to asphyxia as a result of antemortem strangulation. He also proved the post­mortem report as Ex. PW 31/A. Thus, the manner of commission of the offence i.e by strangulation has been established by the post mortem report.

Subsequent Conduct and Identification of Accused FIR No.34/2011 State Vs. Israr Malik and ors Page No. 63/74

59. Accident of car­ The prosecution submitted that the fact about the accident of car in question while occupied by the accused persons, after committing the murder of the deceased driver, and discovery of the same in pursuance of disclosure statements of the accused persons were approved by the testimonies of PW 24 Aiedal Kumar and PW 26 Danish Kumar, who proved the fact that the said car met with an accident when the accused persons were occupying the same.

60. It was submitted that by Ld. counsel for accused that PW24 did not support the case of the prosecution, and that he only identified the accused Ranjeet. It was submitted that PW 24 was declared hostile. It was contended that the owner of the bullock cart made any complaint to the police regarding the fact of the car hitting the bullock cart.. Counsel for the submitted that the police officials had not recorded the statement of other persons who had witnessed the said incident.

61. The prosecution had examined PW24 Adal Kumar and BW 26 Danish Kumar to depose qua the fact of accident by the car with the bullock cart. A perusal of the testimony of both the witnesses reveal that they deposed in a similar vein, the fact that the car hit a bullock cart at a distance of about hundred metres from the tea stall of PW 24. Both the witnesses stated that pursuant to the accident, the occupants of the car were apprehended by the public. PW24 had deposed that a white car had stopped in front of his shop, and the occupants therein took away his cattle and 2 glasses. PW24 recognised accused Ranjeet before the court, as being the person who had taken away the kettle and 2 glasses from the shop despite his refusal. In his cross­examination, PW 26 Danish Kumar averred that it was correct that the word ARMY was written on the front and rear glass of the car in red colour. The colour of the car as being FIR No.34/2011 State Vs. Israr Malik and ors Page No. 64/74 white was stated by both witnesses. Thus, these witnesses also substantiated the version of the prosecution qua the fact of possession of the car by the accused Ranjeet.

62. Washing of car ­ Ld APP placed reliance on testimonies of PW 18 Rafiq Ahmed and PW 23 Mintu to prove the fact that the accused persons had brought the Toyota car at the service station of Mintu for washing, and he noticed bloodstains on the mat of the car, and that the accused persons had told him that the blood was there because they had taken an injured to the hospital. Moreover, PW Mintu also identified the accused persons when they were brought to the police station by the police in pursuance of the disclosure statements.

63. Ld. counsel for the accused had contended that the prosecution had not collected any document of ownership, or photographs of the service station of PW Mintu and that PW Mintu did not disclose any specific date on which the vehicle was washed at the service station. Furthermore, it was argued that if the car was already washed then how the bloodstained mats were recovered, and how the other waste material was lying in the car as is explicit from Ex. PW4/B.

64. As far as the opportunity to cross examine this witness is considered ,a perusal of the record would reveal that PW23 was examined in chief on 30/07/2015. A perusal of the order sheet on that date would reveal that the accused had sought adjournment on the ground of strike by lawyers. However, the Ld Predecessor informed that the contention raised by them is not a ground for adjourning the matter without examination of the witnesses. Thereafter, PW Mintu was examined and discharged as PW23, and it was observed by the court that :

"the opportunity for cross examination is closed as counsel FIR No.34/2011 State Vs. Israr Malik and ors Page No. 65/74 for accused has not appeared despite being awaited and despite the opportunity for cross examination being given."

65. Thereafter, the matter proceeded ahead on its due course and on 29/09/2021, final arguments commenced, after closure of defence evidence. Thereafter, during the period when arguments were being heard, the application under section 311 Cr.P.C. to recall PW 23 Mintu for cross examination was filed. The application was disposed of on 29/11/2021, and the application was allowed. On that date, the court observed as thus:

"taking into consideration the entire facts on record and for just decision of the present case in hand, the application is allowed subject to availability of the witnesses that is PW23 Mintu. It is made clear that only one opportunity shall be granted to the aforesaid accused persons to cross­examine PW 23. Be put up for cross examination of BW 23 Mintu 4 18/12/2021. PW23 be summoned through IO/SHO concerned for next date of hearing".

66. Thereafter, on the next date of hearing, the report in respect of summons issued to PW 23 were received back with the endorsement of the witnesses not residing at the given address. Thus, the Court held that since the witnesses PW 23 is not available, PE stands closed, and the matter was re­notified for hearing final arguments.

67. A perusal of the above proceedings make it explicit that despite closure of opportunity to cross­examine the witnesses on 30/07/2015, the defence waited for an inordinate period of time of almost 6 years, on 27/10/2021, to move the application to recall the witnesses. Even then, the application was allowed subject to conditions which were not fulfilled. A perusal of the record further reveals that it is not a case where counsels of the accused had changed, or were not aware of the proceedings. Even while FIR No.34/2011 State Vs. Israr Malik and ors Page No. 66/74 recording the statement under section 313 Cr.P.C., when the question of testimony of PW23 Mintu and circumstances appearing in evidence against them was put to them, they replied by a bland "it is incorrect". Therefore, it is not the case where an opportunity to cross­examine the witnesses was denied to the accused rather it is a case where it despite the passage of many years and despite the availability of ample opportunities with the accused, they chose not to take steps to cross­examine the witnesses. It is trite that after such a long passage of time there is every possibility of non­availability of a witness. In view of the above, this court cannot discard the testimony of PW 23 Mintu which has already come on record vide his examination in chief on 30/07/2015.

68. As far as the identification of the accused persons are concerned, it would be useful to peruse the following extracts of the testimony of PW 23:

"on 02/03/2011, the police had brought 3 accused persons to my service whom I had identified to be the persons who had brought the Fortuner car with bloodstains along with one more person for washing purpose. The said 3 accused persons are present in the court today and correctly identified by the witnesses."

69. As far as bloodstained mats and other waste material lying in the car is concerned, it is neither the case of the prosecution nor was it deposed by PW 23 Mintu that the bloodstains were removed in toto at the time of washing of the car. Thus, this witness has also proved a link in the chain of circumstances against the accused, and proved the factum of accused using the Fortuner car in question.

70. Recovery of body of deceased and Inquest proceedings­ Apart from police witnesses, the prosecution placed reliance on the testimonies of PW29 Amit, PW30 Jitender and PW32 Praveen, to prove inquest FIR No.34/2011 State Vs. Israr Malik and ors Page No. 67/74 proceedings by Uttar Pradesh police. However, counsel for accused contended that PW 29 is a hostile witness. According to counsel the said witnesses would not tell what clothes/dress that person was wearing as the dead body was sealed. Ld counsel also sought to highlight contradictions in the testimony of PW 20 Jitender.

71. The contentions of Ld counsel for the accused had no water. A perusal of the testimonies of all the above 3 witnesses reveal that they corroborated the presence of each other on the said date, at the time when police officials had recovered the body. The deposed that they had signed the Panchnama. PW30 Jitender had deposed that he saw the dead body of a male aged about 24 to 25 years of dark complexion that was lying in the plot. Both PW30 and PW20 9 deposed that SI Rishem Singh from PS Sahibabad conducted the Panchnama proceedings in their presence. It is a matter of record that SI Rishem Singh expired during the proceedings and as such he could not be examined as a witness. It is PW32 Praveen who observed that the dead body had sustained injuries in the neck and back and he identified his signatures in the Panchnama Ex. PW 29/A. PW32 made a categorical averment, squarely substantiating the version of the prosecution: "at this stage, the photograph of the said body has been shown to the witnesses. After seeking the same, the witnesses has correctly identified the said dead body in the photograph which is already exhibited PW12/A colly 8 photographs)." This witness has clinched the case for the prosecution by identifying the photograph of the deceased. Even PW 28 Ravi Kumar, the photographer deposed that Ex. PW 12/A was the photograph of the dead body which was taken by him. Merely because he could not produce the camera from which he took the photographs, would not be sufficient to discard his testimony. The said FIR No.34/2011 State Vs. Israr Malik and ors Page No. 68/74 witnesses did depose that he, after clicking the photographs, handed over the developed photographs to the IO and also identified the said photograph before the court.

Contradictions & Inconsistencies

72. Ld Counsel for the accused remonstrated that there were numerous inconsistencies and contradictions in the versions of the prosecution witnesses

73. Ld counsel for the accused contended that the testimony of PW2 Raju is not trustworthy as in his examination in chief, the witness averred that he took police officials to the house of accused Israr Malik, where accused was arrested by the IO at Raju's instance. According to counsel, this is contrary to the arrest memo of Israr Malik viz. Ex. PW 15/F, which shows his arrest from Apsara Border.

74. It was also contended that PW18 Rafiq Ahmed did not support the prosecution case as he stated in his examination in chief that he does not know anything about the case and that the police took his signatures on blank papers, and he was also declared hostile. Further, PW25 Agan Lal also did not support the case of the prosecution, and was declared hostile. This witnesses could not identify the accused persons in the court.

75. Apart from these, the inconsistencies or contradictions mainly pivot around not making of departure entries of police officials who left Delhi, for the Uttar Pradesh, non­examination of public witnesses where the accident of car took place with the bullock cart and non­joining of investigation by village pradhan .

76. On the other hand, Ld APP had averred that there is no justification for blowing up such omissions and infirmities out of proportion in the statements recorded by prosecution witness, or to doubt the same. He said FIR No.34/2011 State Vs. Israr Malik and ors Page No. 69/74 that prosecution witnesses were examined were examined after a period of many years, and thus there would be bound to be some discrepancies in the testimonies. Moreover, it was contended that the discrepancies only go on to show that the witnesses were truthful, and that they were not tutored. This Court finds force in the contentions of Ld Addl PP for the State

77. In Vijay@Chinee vs State of Madhya Pradesh (2010) 8 SCCC191it was held that:

"19 It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety."

" 20 In State of Rajasthan Vs. Om Prakash AIR 2007 SC 2257, while dealing with a similar issue, this Court held that "irrelevant details which do not in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions."

"21 In State of U.P. Vs. M.K. Anthony AIR 1985 SC 48, this Court laid down certain guidelines in this regard, which require to be followed by the courts in such cases. The Court observed as under :­ " Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."

" 22 In State Vs. Saravanan & Anr. AIR 2009 SC 152, while dealing with a similar issue, this Court observed as under :­ "18.....while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the FIR No.34/2011 State Vs. Israr Malik and ors Page No. 70/74 evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."

" 23 It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses (vide Sohrab & Anr. Vs. The State of M.P. AIR 1972 SC 2020; Bharwada Bhogini Bhai Hirji Bhai Vs. State of Gujarat AIR 1983 SC 753; Prithu @ Prithi Chand & Anr. Vs. State of Himachal Pradesh (2009) 11 SCC 588; and State of U.P. Vs. Santosh Kumar & Ors. (2009) 9 SCC 626)."

" 24 Thus, in view of the above, the law on the point can be summarised to be that the evidence of the witnesses must be read as a whole and the cases are to be considered in totality of the circumstances and while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, should not be taken into consideration as they cannot form grounds to reject the evidence as a whole."

78. In Mukesh &Anr. Vs State (NCT of Delhi) (2017) 6 SCC 1, it was laid FIR No.34/2011 State Vs. Israr Malik and ors Page No. 71/74 down as thus:"86. In Krishna Mochi v. State of Bihar[46], the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"

79. In Inder Singh v GNCT of Delhi 1978 AIR 109 , Krishna Iyer, J. laid down that:

"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."

80. Thus, the circumstances in entirety are to be appreciated. In view of the aforesaid settled propositions of law, this Court is not disposed to accept the contention that these minor discrepancies or omissions are fatal to the case of the prosecution, especially in view of the overwhelming evidence that has been brought on record against the accused persons.

Failure to explain circumstances against the accused FIR No.34/2011 State Vs. Israr Malik and ors Page No. 72/74

81. It was contended by the State that the accused did not avail the opportunity to explain the circumstances appearing in the evidence against them, and only put forth a mere bare denial or replied the wuastions by merely stating that 'it is incorrect'. They could not explain inter alia recovery of mobile phone of the deceased from them. The accused only averred that a false case has been foisted upon them. Accused Vijay stated that he was offered an inducement by the IO to become an approver in this case. However, the accused could not back up this claim. Moreover, these convenient and specious pleas cannot readily and naively be accepted and swallowed by the Court, and is hereby discarded in toto.

Conclusion

82. It was held in State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86:

"This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far­fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise"

FIR No.34/2011 State Vs. Israr Malik and ors Page No. 73/74

83. In the present case, this court concurs with the version of the prosecution, and holds that the complete chain of circumstantial evidence stands proved, as the circumstances relied upon the prosecution have been fully established. The cumulative effect of all the facts so established is consistent only with the hypothesis of guilt of the accused herein. The evidence of the prosecution witnesses is natural and trustworthy, and corroborated by circumstantial evidence and the prosecution has been able to establish a continuous link. In view of the above in extenso discussion, this Court hereby holds the accused Israr Malik, Ranjeet and Vijay guilty for the offences u/s 302/364/394/201/411/34 IPC.

84. List for arguments and orders on sentence on 08.07.2022.

85. File be consigned to record room after completion of all other necessary formalities.

Announced in the open court on 4th July, 2022 (ARUL VARMA) ASJ­04 & Spl. Judge (NDPS) South­East District/Saket Courts, New Delhi FIR No.34/2011 State Vs. Israr Malik and ors Page No. 74/74