Delhi District Court
State vs Md. Tazim Khan on 9 November, 2023
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDL. SESSIONS JUDGE (FTC - 02) :
SOUTH EAST DISTRICT
SAKET COURTS : NEW DELHI
CNR No: DLSE01-003024-2018
SC: 146/2018
FIR No: 219/2017
PS: New Friends Colony
U/s: 302/201/34 IPC
State
Versus
1. Md. Tazim Khan
S/o Sh. Md. Sadakat Khan
R/o: H.No. T-86, Near Nafisa Masjid,
Sarai Kale Khan, H.N.Din,
New Delhi
2. Pritam Saini @ Sonu
S/o Sh. Ranjeet Saini
R/o: C-20, Fourth floor,
Radhe Shyam Park Extn.
Behind Jagatpuri Police Station,
Krishna Nagar Delhi
3. Nitin Sabarwal
S/o Late Sh. Brijender Sabharwal
R/o: H.No. B-439, NFC,
New Delhi.
....ACCUSED PERSONS
Date of Institution : 27.02.2018
Judgment reserved on : 27.10.2023
Date of Decision : 09.11.2023
FIR No: 219/2017 Page 1 of 158
JUDGMENT
1. The accused persons were sent to face trial by SHO, PS New Friends Colony, for committing offences of murder and destruction of evidence of deceased Hemant Chawla in furtherance of their common intention punishable under sections 302/201/34 IPC.
2. Briefly stated, the case of prosecution is that on receipt of DD No. 7A on 05.07.2017, at about 06.20 AM, SI Darpan Singh along with Ct. Madan reached the place of occurrence i.e. B-439, NFC, near Gurudwara, where he found dead body of a man namely Hemant Chawla S/o Late Sh. Randhir Chawla R/o C-684, NFC, aged about 47 years, who was lying dead on the floor bed. Casual inspection of the dead body did not reveal any external injury. However, before conducting the inquest proceedings, SI Darpan Singh summoned the district crime team along with photographer for inspection of the scene of crime. Thereafter, SI Satish Kumar, In-charge District Crime team, inspected the spot and submitted his report vide SOC No 809/17. Photographs of the spot were also taken by the crime team photographer. Accused Nitin Sabharwal, who was the occupant of the said room had produced an empty bottle of Sula wine to SI Darpan Singh, which was seized by him vide a separate seizure memo.
FIR No: 219/2017 Page 2 of 158Inquest papers were also prepared by SI Darpan Singh and he had also recorded the statements of 1. Aman Vadhera S/o M.M Vadhera R/o A-9, NFC, New Delhi, 2. Ruchi Vadhera W/o Aman Vadhera 3. Md. Tazim S/o Md. Sadakat 4. Nitin Sabharwal S/o Sh. Brijendra Singh Sabharwal and 5. Balwant S/o Late Beer Singh, thereafter, body was removed to AIIMS hospital through Ct. Madan Singh and as per MLC record, no visible external injuries were found present on the body of deceased. Thereafter, it was shifted to mortuary and before conducting its postmortem, the body was identified by one Mrs. Geeta Raj Pal w/o Late Sh. SK Rajpal and one Renu Sehgal D/o Sh. D C Sehgal, whose statements were also recorded.
After conducting postmortem of the deceased between 02:30 PM to 03:30 PM, on 05.07.2017, his dead body was handed over to Mrs. Renu Sehgal as per request received from Mrs. Neena Chawla, mother of deceased, who was at the relevant point of time not available in India and was stated to be in London, UK.
During the course of postmortem of deceased, doctors had also preserved the viscera which was also handed over to SI Darpan Singh in a box, sealed with the seal of Department of forensic medicine, AIIMS, New Delhi and was seized by SI Darpan Singh vide separate memo. The place of occurrence was stated to be the rented house of Nitin Sabharwal, who was stated to be friend of deceased Hemant Chawla and was FIR No: 219/2017 Page 3 of 158 living there with his mother Smt. Timpi Sabharwal, wife Nini Sabharwal, son Karanvir and daughter Zenia (both minors). He also had a cook namely S. Panchu and servant cum waiter Bhim Singh and one maid Yashoda, who also lived in servant quarters of the said house and had two drivers namely Ram Bachan and Ram Kumar. Wife of accused Nini Sabharwal along with her children was stated to be out of India on the date of incident. Accused Nitin Sabharwal also had a sister namely Aarti Sabharwal, who was residing at B- 457, New Friends Colony, New Delhi. In the intervening night of 04/05.07.2017, accused Nitin Sabharwal, his mother Timpi Sabharwal along with their servants were present in the house. During inquest proceedings, it was stated by accused Nitin Sabharwal that on 04.07.2017 at about 07:00 PM, deceased came to his house with his driver Balwant Singh and between 10 PM to 11 PM, he along with deceased consumed sula red wine and also had dinner ordered from The Friends Club, at about 11:30 PM, deceased slept in his house and he left his house at around 12.45 AM, for places like Nizamuddin, etc. and he along with his friend Tazim came back to house at 04:30 AM and found deceased sleeping on the ground and his body was cold and he was not responding.
Statement of accused Md. Tazim was also recorded by SI Darpan Singh, who had stated that on 04.07.2017, at about 06:30 PM, he had visited the house of his friend Nitin Sabharwal, where deceased also came and he along with Nitin Sabharwal had consumed beer, whereas, deceased had consumed wine.
FIR No: 219/2017 Page 4 of 158Thereafter, driver of deceased had also brought food from Friends Club and at about 11:30 PM, deceased had gone to sleep after which he along with Nitin had left the house for outing and returned back at around 04:30 AM in the morning, when they came back, they found that Hemant was lying dead.
Several other statements were also recorded by SI Darpan Singh during the course of inquest proceedings including mother of deceased namely Smt. Neena Chawla, who had stated that deceased was her only son and was a US national and NRI, who had visited India in December 2016. Accused Nitin Sabharwal was stated to be his childhood friend and deceased had also told her that some land deal between Nitin and Tazim was to be finalized on 07.07.2017, in which he along with accused Nitin were looking forward for some huge profits. Deceased had never slept in the house of accused Nitin before the said night and she had also told the police officials that Hemant always used to wear a t-shirt, which was not found on his body and thus she raised a suspicion about the death of her deceased son.
On 14.07.2017, the postmortem report of deceased was obtained from AIIMS Hospital, wherein it was revealed that some anti-mortem external injuries were also found present on the body of deceased including two contusions measuring 0.5cmX0.4cm and 0.3cmX0.3cm, present over the anterolateral aspect of the left side of neck, situated 5cm to 6cm left to middle FIR No: 219/2017 Page 5 of 158 and 8cm below the left angle of mandible. During dissection of the neck, extravasations of blood were found present within the muscle layers of neck underlying the external contusions and extravasation of blood was present within the layers of the left side of thyro-hyoid muscles. The thyrohyoid complex was intact. Trachea was also normal. Similarly, a contusion measuring 6x7cm was found present over lateral aspect of right arm, 8cms above the elbow and multiple contusions ranging from 1cmX0.5cm to 2cmX2cm, were found present over lateral aspect of left arm, 7cm above the elbow. The postmortem report also revealed that the Injury No- 1 was caused as a result of pressure over neck and injuries No- 2 and 3 were caused by blunt force impact and all the injuries were opined to be anti-mortem in nature and fresh in duration and time since his death was stated to be about 12 hours from the time of conducting his postmortem.
Thereafter, on 19.07.2017, Mrs. Neena Chawla, mother of deceased had filed a written complaint with the SHO, PS- New Friends Colony, wherein she had raised a suspicion about the death of her son stating therein that her son had moved back to India only last year after spending about 25 years in the United States, where he was also working and was an American citizen. Her husband was stated to have expired on 07.04.2016. Deceased was stated to be unmarried and had shifted back to Delhi to look after her and was living on the 2nd floor of the family house at C-684, New Friends Colony, whereas the FIR No: 219/2017 Page 6 of 158 complainant herself was residing at ground floor and the first floor was on rent. Deceased was stated to be a banker by training and was in the outsourcing financial analytics business and in Delhi, he was trying to set up two new businesses and was also interviewing for jobs both in India and abroad. She was stated to have visited her daughter and son-in-law in London for a holiday when she received a call from her driver Balwant Singh at around 01.31 AM U.K time, on 05.07.2017, who told her to connect her with her daughter or to her son-in-law and when her son-in-law had picked up the phone, then he was informed by Balwant Singh that deceased was at his friends Nitin Sabharwal's house and was not moving. Nitin thereafter came on the line and told that he wanted to inform the family first. Then Mandeep told him to call a doctor or an ambulance to see if there was any hope and he also told Nitin that he would send his friends and family members to his house immediately. Thereafter, at around 6.30 AM, her nephew Aman Vadhera and his wife Ruchi were stated to have been brought at the spot by her driver Balwant Singh and within the next 15-20 minutes, several other friends and family also got to that location. Though initially, she did not want a postmortem and wanted to have her son's body back home but on the insistence of police officials, she had agreed for the postmortem. Though, initially they did not suspect any foul play and made immediate plans to catch the first flight back to Delhi, however, some of the activities of accused and his family raised a suspicion in her mind about some foul play like the family of accused Nitin had never called a doctor or an ambulance to FIR No: 219/2017 Page 7 of 158 provide immediate medical assistance and help to her deceased son and even the t-shirt worn by her deceased son under a shirt was also found missing. Nitin had also told them about giving CPR to deceased but since his body was found placed flat on three pillows, hence, the possibility of giving him any CPR did not arise. Deceased had never slept on floor due to his back problem, hence, it was very difficult for her to believe that deceased would have chosen to sleep on the floor with pillows. It was also stated that as per version of accused Nitin, he returned to home after a drive at 04:15 AM, when they discovered deceased to be no more but why did they wait till 5:50 AM, before calling her driver Balwant Singh and that too was done by sending their driver on a bike, whereas, their home was just 2 minutes away from the complainant's home in New Friends Colony. It was also stated that who would go for a 4-5 hours drive while leaving behind his friend at home and version of accused Nitin had kept on changing from time to time which also raised her suspicion. Nitin had also told people that deceased was a heavy drinker and used to drink one bottle of black label every day, whereas deceased used to drink only single malts and vodka rather than blended whiskey and had no capacity to drink a full bottle. Furthermore, suspicion were raised on various grounds and it was also stated that deceased had told her that he was helping accused Nitin in a property transaction worth Rs. 400 crores, which was scheduled to close on Friday (three days after the incident). However, she had no further details and after examining the postmortem report of deceased, she was sure of FIR No: 219/2017 Page 8 of 158 his death by way of strangulation and hence, she wanted an action to be taken against accused person.
3. On this written complaint running into 4 typed pages, rukka was prepared after which present FIR was registered and further investigation was assigned to Inspector Sushil Kumar, the then SHO. However on 28.07.2017, the investigation of this case was transferred to Crime Branch, South East Region and Inspector Ishwar Singh had taken over the further investigation and accused persons were also arrested in this case. After conducting other investigations and recording statements of witnesses as well as disclosures of accused persons, the charge-sheet was prepared and filed before the court by IO on 27.02.2018. On the same day, cognizance of offence was taken by Ld. MM.
4. Vide order dated 27.03.2018, matter was committed to the Court of Sessions for 31.03.2018.
5. Vide order dated 02.06.2018, charge for offence(s) under Section 302/34 IPC was framed against all the accused persons and charge u/s 201/34 IPC was framed against accused Pritam and Nitin Sabharwal by ld. Predecessor of this Court, to which they had pleaded not guilty and claimed trial.
FIR No: 219/2017 Page 9 of 1586. In order to prove its case against the accused persons beyond any reasonable doubt and to establish their guilt, the prosecution had examined 34 witnesses in all.
7. However, in order to appreciate the evidence available on record, it shall be prudent to divide the witnesses into two categories i.e., formal and material.
(A) First of all, I propose to deal with the testimonies of formal witnesses which are as under :
PW2 is ASI Malkhan Singh, No. 756/SE, PS New Friends Colony who was stated to be posted as MHC(M) at PS NFC from 05.07.2017 to 09.02.2018, when certain exhibits of this case were deposited by police officials in the malkhana and were also handed over to different police officials for their deposition at FSL for the purpose of Forensic examination vide their entries made in the malkhana register as well as through Road Certificates Ex. PW2/A to Ex. PW2/G. During his cross-examination conducted by Ld. Defence Counsel for accused Nitin Sabharwal, he had deposed about having no knowledge about transfer of investigation of this case to Crime Branch. Viscera of deceased was stated to have been deposited twice with FSL one by local police and other by IO of crime Branch. Other formal suggestions were denied by him as wrong and incorrect.FIR No: 219/2017 Page 10 of 158
PW-6 HC Mahesh, No. 950/SE, Mobile Crime Team, SE, PS C.R. Park, New Delhi had deposed that on 05.07.2017, he was posted as HC and working as Photographer in Mobile Crime Team, South East District, when he had visited the spot at house No. B-439, New Friends Colony, and found one dead body of a male, who was not known to him. The body was lying on the floor of one room and upon directions of In-charge, he had taken photographs. The Fingerprint Proficient had also tried to lift some chance prints, however, no fingerprints could be developed. One empty wine bottle was also found lying there, which was seized by IO and out of 7 photographs taken by him, only four could be developed which were placed on record as Ex.
PA-1 to ExPA-4 and their negatives collectively as Ex. PA-5.
During his cross-examination conducted jointly by Ld. Counsels for all the accused persons, he was stated to have reached the spot at around 09:30 AM, when local police was already present there. Doors of the house were opened and the entire house was inspected by the police, however, he was not asked by any police official to take the photographs of any other room except the room where dead body was found lying. The door shown in Ex. PA-1 was the entrance door leading to the room in question. The articles lying in the room were not seized in his presence and he was stated to have stayed there for about 45 minutes. SI Darpan along with other police officials, whose name he did not know, were present at the spot and SHO had also visited the spot in his presence. However, SHO had not made any FIR No: 219/2017 Page 11 of 158 queries from the family members or the servants of the accused Nitin in his presence nor any ambulance was called. No one was stated to have lifted or removed the dead body in his presence nor any articles were seized from the kitchen in his presence.
PW-7 is one Sh. Amit Kumar Dey, Club Manager of The Friends Club Limited, Friends Colony, who had placed on record the copy of Bill No. HD17111 dated 04.07.2017 as Ex. PW7/A, which was a take away order.
During his Cross-examination conducted by Ld. Counsel for accused Nitin, the order was stated to have been delivered in the evening at around dinner time, which was placed by one Hemant Chawla, who had also sent his driver to collect the same.
PW-9 is Smt. Neena Chawla, w/o Late Sh. Randhir Chawla, aged about 72 years, r/o C-684, New Friends Colony, who happened to be complainant as well as the mother of deceased Hemant Chawla and had deposed that after studying in USA for about 23 years, her deceased son had moved to India in the year 2016. In June, 2017, she was stated to have visited her daughter and son-in-law based in London for holidays, whereas her deceased son had stayed back in Delhi.
On 05.07.2017, she was stated to have received a phone call from her driver Balam @ Balwant, who had insisted to speak to her daughter Shivani or her husband Mandeep.
FIR No: 219/2017 Page 12 of 158Thereafter, she had given the phone to her son-in-law, who had told her that Hemant was lying at the house of Nitin and was having no movement and thereafter accused Nitin had taken over the call and informed her son-in-law that her son had already expired. Thereafter, her son-in-law had told Nitin to call for the ambulance and take Hemant to hospital. Thereafter, all of them returned to Delhi on the same day at about 11.30 pm or 12 in the night and she was in a state of shock due to death of her son. Next morning, she had met all the people who had visited the site or visited for the postmortem and they had told her that something was wrong and on the basis of various points already mentioned in her complaint dated 18.07.2017, she had concluded that her son was murdered and in this regard she had also given her complaint Ex. PW9/A bearing her signatures at point 'A' on each page, on which present FIR was registered.
She had also placed on record her statement recorded in this case Ex. PW9/B bearing her signatures at Point 'A'.
During her cross-examination conducted by Ld. Counsel for accused Nitin, she had stated that her son had been working for a Bank as financial analyst in USA but had left his job voluntarily. However, it was not within her knowledge as to whether her son was provided any social security in US or not. However, he was a US citizen but again expressed her lack of FIR No: 219/2017 Page 13 of 158 knowledge regarding any individual life insurance policy having been issued in the name of her deceased son in USA or not.
A suggestion put to her to the contrary was denied by her as wrong and incorrect including the one that she had instituted the present case to secure the benefits arising out of the insurance policy of her deceased son.
She was stated to have never visited PS, New Friends Colony, however, she had visited the office of Crime Branch twice. She had never visited AIIMS during the course of investigation nor she was familiar with any Dr. Sudhir Gupta. During one of her visits to Crime Branch, she was informed by the IO that result of viscera was still awaited, however, she had not asked him to show her any other document or statement pertaining to the case. When she was confronted with portion X1 to X1 of her statement Ex. PW9/A, then she had replied that she was told about this fact by the police officials.
Further she had not mentioned in her complaint regarding the statement of mother and sister of accused Nitin nor same were told to her by police officials nor they were shown to her.
Her son was stated to be taking anti depressive tablets and was in touch with one Dr. Garg. It was denied by her that her son used to consume drugs. Her daughter Shivani Ahluwalia along with her husband Mandeep was following up FIR No: 219/2017 Page 14 of 158 the issue along with her and had also taken legal assistance. However, she could not remember if she had taken any such legal assistance prior to filing of her complaint or not as the complaint was drafted by her son-in-law in their house, where IO had visited to collect the same. The police officials from PS New Friends Colony were stated to be not in touch with her and the compliant was drafted by her son-in-law on the basis of facts which were within his exclusive knowledge, however, she did not know about the source of such information acquired by her son- in-law.
She had further denied the suggestion that her entire complaint was based on malafide and false facts or that she along with her daughter and son-in-law had filed the present complaint to falsely implicate the accused persons in this case despite knowing fully well that her son had died a natural death.
Her driver Balam was stated to have visited the PS, NFC along with her son-in-law once after which he had never joined the investigation. Balam was staying in her house in the servant quarter and was serving her as well as her daughter and son-in -law.
In her further cross-examination conducted on 01.04.2019, she had deposed that no doctor was consulted by her before making the present complaint. Postmortem report was stated to have been received by her only in October 2017 from the officials of PS Crime Branch. Again, she was confronted with FIR No: 219/2017 Page 15 of 158 portion A-1 to A-1 of her statement Ex.PW9/A, to which she had replied that she had not seen the postmortem report at the time of filing of her complaint, however, it was not within her knowledge as to who had shared the details of postmortem with her daughter. She was stated to have met her driver Balam in the morning hour on 06.07.2017 at her house. She had denied that she had connived with the IO to file false complaint against the accused persons which was the cause of delay in registration of FIR and further that after her arrival to India between 05.07.2017 till 18.07.2017, she had been deliberating and consulting the police as well as IO and medical experts and was also taking legal advice to somehow falsely implicate the accused persons in the present case.
Her Deceased son was stated to be not taking any medicine for palpitation and denied the suggestion that she had told the police that her deceased son used to take tablet for palpitation. Again she was confronted with her statement from portion B-1 to B-1 of Ex. PW9/B, where this fact was found recorded. Further it was deposed that she had no knowledge about the date when her statement was recorded by the police but had denied that she had made substantial improvements and exaggerations in her complaint Ex. PW9/A. No documents or photographs of deceased were stated to have been handed over by her to the police during the course of investigation, including citizenship as well as employment of deceased. Other formal suggestion were denied by her as wrong and incorrect.
FIR No: 219/2017 Page 16 of 158PW-10 is Mrs Geeta Rajpal Widow of Late S K Rajpal, R/o A7, Gulmohar Park, who had visited the mortuary on 05.07.2017 after receiving an information from her friend Neena Chawla about death of her son Hemant and had identified the dead body of Hemant Chawla, which was handed over after postmortem to Renu Sehgal, who happened to be the sister of mother of deceased vide handing over memo Ex. PW10/A bearing her signature at point A During her cross-examination conducted by Ld. Defence Counsel, she was stated to have not met any police official during her visit to the hospital.
PW-11 is HC Mitter Singh, No. 542/SB, Spl.
Branch, Asaf Ali Road, Police Bhawan, who had collected sealed exhibit including viscera from MHC(M) on 01.09.2017, on the instruction of the IO and had deposited the same at FSL, Rohini vide RC No. 100/21/2017 and receipt after deposition was handed over back to the MHC(M). The exhibits as long as remained in his possession were stated to be intact and untampered.
During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, the exhibits were stated to be kept in a closed box. No original RC was brought back by him.
FIR No: 219/2017 Page 17 of 158Formal suggestions were denied by him as wrong and incorrect.
PW-11 (wrongly mentioned as PW11, however, he is PW34) is HC Satinder, No. 1271/Crime, Old Police Kotwali, Daryaganj, who had deposed that on 11.9.2017, during his posting as HC in STARS 1, Crime Branch, R.K. Puram, upon instruction of IO, he had collected one sealed pullanda from MHC(M) PS New Friends Colony and had deposited the same at FSL Rohini. The acknowledgement and receipt of deposition were handed over back to MHC(M) by him.
During his cross-examination conducted by, Ld. Counsel for the accused Nitin Sabharwal, he was stated to have not brought the original RC vide which he had taken the said pullanda to FSL.
Formal suggestions were denied by him as wrong and incorrect.
PW-12 is CL Sandeep Kumar, No. 1236/Crime.
STARS, Crime Branch, RK Puram, who was stated to be posted as constable in Crime Branch on 28.12.2017, when he had accompanied the IO and had gone to house no. 206, Som Vihar, New Delhi, and it was deposed again that he had visited the house no. J-705, Som Vihar Apartments, RK Puram, and met Mrs. Tarundeep Khullar, who was the owner of property. No. B-
FIR No: 219/2017 Page 18 of 158439, New Friends Colony, New Delhi, and she had produced the copy of lease agreement Mark PW12/X, which was seized by the IO vide memo Ex. PW12/A bearing his signature at point A. During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, he was stated to have visited the house of one Mrs. Khullar at about 1-2 pm. Formal suggestions were denied by him as wrong and incorrect.
PW13 is ASI Deep Chand, No. 130 Crime, STARS-
1, Crime Branch, who was stated to be posted as ASI at Crime Branch office on 28.09.2017, when upon instructions of IO, he had collected FSL reports and exhibits from FSL, Rohini and deposited exhibits in the malkhana and handed over the reports to IO, who had recorded his statement.
On 03.12.2017, he was stated to have joined the investigation again, when accused Pritam Saini and Mohd Tazim were arrested and their personal searches were conducted by the IO and their disclosure statements were also recorded by the IO, which are Ex. PW13/A to Ex. PW13/F all bearing his signatures at Point A. Again he had joined the investigation on 04.12.2017, when accused Nitin Sabharwal was arrested by IO in their office FIR No: 219/2017 Page 19 of 158 and his personal search was conducted and disclosure statement was recorded vide memos Ex. PW13/G to Ex. PW13/I, all bearing his signatures at point 'A'.
During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal on 30.03.2019, he was stated to be not involved in the investigation of this case prior to September 2017 and admitted that prior to his arrest, accused Nitin Sabharwal had already joined the investigation on many occasions in the office of Crime Branch. IO was stated to have not discussed anything regarding medical report with this witness. He had no knowledge if he had signed the disclosure statement of accused Nitin Sabharwal as a witness or not. He had no knowledge if mother and other family members of deceased also used to visit the office of Crime Branch during the course of investigation or not. He had denied that IO had manipulated the disclosure statement of accused Nitin to suit the case of the prosecution or that accused Nitin was made to sign some blank papers which were later on converted into self incriminating documents against him only.
During his further cross-examination conducted on behalf of accused Pritam Saini, he was stated to have attended his office at 10.00 AM on 03.12.2017 and was stated to be attached with Inspector Ishwar Singh for the last about one year, who also used to depute him for various works on daily basis. He was stated to have also visited AIIMS once with the IO and further FIR No: 219/2017 Page 20 of 158 admitted that they had visited the Forensic Department in AIIMS but he was not having any personal knowledge about accused Pritam himself coming forward to help the police in the investigation. Formal suggestions were denied by him as wrong and incorrect.
PW14 is Ct. Hari Chand, No. 3569, South-East, District Line, Sukhdev Vihar, who was stated to be posted as Constable at PS New Friends Colony on 17.07.2017, when upon instruction of IO, he had taken the viscera from the Malkhana of PS New Friends Colony vide RC No. 67/21/17 and had deposited the same at FSL, Rohini against acknowledgement and receipt.
During his cross-examination conducted by Ld. Defence Counsel for accused Nitin Sabharwal, he was stated to have collected the viscera from Malkhania in the morning but had not brought the original RC vide which he had taken the same to FSL Rohini. Formal suggestions were denied by him as wrong and incorrect.
PW-15 is ASI Vedpal Singh, No. 3509/East, DCP Office, GD Branch, who was stated to be working as ASI on 19.07.2017 at PS NFC and was working as duty officer from 8.00 am to 08:00 pm, when at about 10:05 AM, Insp. Sushil Kumar, SHO, New Friends Colony had produced one rukka before him for registration of the FIR. On the basis of which, he got registered FIR Ex. PW15/A and also issued Certificate u/s 65-B FIR No: 219/2017 Page 21 of 158 of the Indian Evidence Act is Ex.PW15/B both bearing his signatures at point-A. During his further examination-in-chief on 01.06.2019, he had also produced DDR containing DD No. 5A as Ex. PW15/C. The copy of FIR after its registration was also sent to Senior Police Official as well as area Magistrate through Special messenger Mohar Singh.
During his cross-examination conducted by Ld. Counsel for the accused Nitin Sabharwal, he was stated to be not posted as Duty Officer on 05.07.2017 nor he was even on duty on that day being his off day. His duty had varied as per shifts between 05.07.2017 to 19.07.2017 as 12 hours duty and 24 hours rest. He did not know if the family members of the victim were visiting the PS or not nor he had any knowledge about SI Darpan Singh having conducted inquest proceedings in this case.
Formal suggestions were denied by him as wrong and incorrect.
PW16 Mandeep Ahluwalia S/o Sh. Manjit Ahluwalia, R/o D 34, Defence Colony, is the brother-in-law (jija) of deceased, who had deposed that on 05.07.2017, his mother-in- law, who had visited him in UK, received a phone call from her driver Balwant Singh, who had also spoken to him and told him about the death of his brother-in-law Hemant. Upon his asking, FIR No: 219/2017 Page 22 of 158 Balwant had told him that deceased was lying in the house of Nitin Sabharwal, after which accused Nitin took over the phone and talked to him. He had asked Nitin about the doctor to which he replied that he thought it appropriate to apprise this fact to the family members of deceased first. The witness directed him to call for the doctor or ambulance and further told him that he would ask his family and friends to visit his house. Thereafter, he called up Renu Sehgal, Aman, Ruchi Vadhera and some other people and informed them about the situation. He alongwith his wife, kids and mother-in-law immediately came to Delhi at about 11.00 PM on the same day and in between, he had received several phone calls from above mentioned persons to whom he had intimated about the incident, informing him about the situation of deceased Hemant and showing him that he was lying on the floor through video calling and by the time, they had arrived at their home at New Friends Colony, the postmortem of deceased had already been conducted and body was brought at their home through Renu Sehgal. Later on, complaint was filed with police by her mother-in-law and on 19.7.2017, he had handed over the mobile phone of deceased Hemant along with its SIM to the IO, who had seized the same vide memo Ex. PW16/A bearing his signature at point A. During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, he was stated to have visited the PS once or twice after his arrival to India but his statement was recorded only once by the police. Later on he was FIR No: 219/2017 Page 23 of 158 also confronted with certain portions of his statement recorded u/s 161 CrPC to which he had replied in negative as having never told the said facts to the Police. Driver of his mother-in-law was staying in the same property. He had not made any complaint to the police between 05.07.2017 till 19.7.2017 against anybody and he was the author of Ex PW9/A which ultimately culminated into the present FIR and to a specific question regarding his mentioning of statement made by accused Nitin Sabharwal at various occasions, he had replied that he had never seen any such statement of Nitin Sabharwal rather he was told by the police about the same.
In his further cross-examination conducted in post lunch session on 01.06.2019, he had shown his lack of awareness about deceased having suffering from some ailments. He was stated to have visited the AIIMS only once and had denied the suggestion that he had met the members of the medical board constituted in the present case. He was specifically questioned about portion A1 to Al of complaint Ex. PW9/A, to which he had replied that he had never received a copy of postmortem report, however, same was just shown to them by the police. It was denied by him that he had drafted the complaint after going through the Postmortem report and also examining the statement of Nitin Sabharwal or that Ex. PW9/A was drafted to falsely implicate accused Nitin Sabharwal in collusion with the police. He could not recall the number of times when his wife had visited the PS between 5th July to 19th July. He did not have any FIR No: 219/2017 Page 24 of 158 conversation with his friends, who had visited the house of accused Nitin Sabharwal in the morning of 5th of July. Nor those persons were examined by the police in his presence. Neither Aman Vadhera nor his wife Ruchi or any other friend had informed him about any complaint made by them regarding anything untoward noticed by them in the morning of 5 of July nor police had seized any call data record from him or in his presence. He had no knowledge if his driver Balwant @ Balam was taken to any Court or Judicial Officer for any proceedings after his return to India. He had never made any representation to get the investigation of this matter transferred to Crime Branch. Other formal suggestions were denied by him as wrong and incorrect.
He had expressed his lack of knowledge regarding his deceased brother-in-law having any insurance policy in his name or not. Since he was not present at the spot, hence, he had not informed the police about the persons who had told him about situation of Hemant lying on floor through video calling. Other formal suggestions were also denied by him as wrong and incorrect.
PW17 is Constable Sushil Kumar, No.927/CR, Stars 1, Crime Branch, R.K. Puram, who was stated to be posted as Constable at Crime Branch on 27.12.2017, when he had taken one pullanda on the instructions of IO vide RC no. 161/21/17 and forwarding letter and had deposited the same to FSL, Rohini. The FIR No: 219/2017 Page 25 of 158 acknowledgement and receipt was also obtained by him and was handed over to MHC(M) of PS New Friends Colony. The copy of RC was placed on record already as Ex. PW2/G bearing his signature at point X. During his cross-examination conducted by Ld. Counsel for the accused Nitin Sabharwal, he was stated to have collected the aforesaid pullanda containing mobile phone from police station, New Friends Colony and it was carried in a sealed condition. However, he could not remember the initial on the seal. It had not come to his notice as to whether police station New Friends Colony had also sent the pullanda containing the phone for any examination or not.
PW18 is Smt. Tarundeep Kullar W/o Late Sh. Umak Singh Kullur, R/o H.No. J-705, Som Vihar Apartments, Opp. DPS R.K. Puram, who was the landlord and the owner of house no. B-439, NFC, New Delhi, consisting of two floors with garage and two servant quarters, which was rented out by her to one Mrs. Timpy Sabharwal on 01.12.2015 for a period of 2 years and the lease was further renewed in the year 2017. Mrs. Timpi Sabharwal along with her family members used to reside in her aforesaid house and she was also enquired by the police in this case and she had handed over the copy of registered rent agreement/lease deed which was earlier marked as 12/X and which was seized by police vide memo Ex. PW12/A bearing her signatures at Point 'B' and 'C' respectively. However, original FIR No: 219/2017 Page 26 of 158 lease deed was not brought by her on the date of her examination but she could have produced the same, if so directed.
During her cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, she had stated that during the subsistence of tenancy agreement, she had not received any complaint against her tenants regarding their conduct from anybody in the neighborhood or otherwise.
PW-20 is W/Ct. Rakhi No. 3135/SE, District Line Sukhdev Vihar, New Delhi, who was stated to be posted as Constable in PCR, PHQ on 04/05.07.2017, when at 06.09 AM in the morning of 05.07.2017 (wrongly typed as 05.07.2019), she had received a call from mobile no. 9810055499 and the caller had disclosed his identity as Nitin Sabharwal r/o B-439, NFC, Near Gurudwara, who had informed her about the death of some person at the said place (Yahan par kisi person ka death ho gaya hai), the said information was recorded by her vide CPCR DD No. 05 Jul 1713 30055 and certified copy of the said form was placed on record as Ex.PW20/A. During her cross-examination conducted by Ld. Counsel for accused Pritam Saini, it was deposed by her that their system automatically generated the name of subscriber of the phone from which the calls were made to PCR and if system did not generate the name automatically then they used to ask about the identity of the caller manually. Even the time of FIR No: 219/2017 Page 27 of 158 receiving and dispatch of calls was also automatically filled. She had not brought any record to show that she was present on duty at the time of receiving of this call. Formal suggestions were denied by her as wrong and incorrect.
PW-21 is Inspector Mahesh Kumar, Draughtsman, Crime Branch, PHQ, New Delhi, who was stated to have inspected the spot on 15.01.2018, on the request of IO/ Inspector Ishwar Singh, and SI Darpan was also called by IO at the spot at whose instance, he had prepared rough notes and taken measurements and thereafter, prepared scaled site plan Ex. PW21/A, bearing his signature at point 'A'.
During his cross-examination conducted by Ld. Counsel for accused Nitin, rough notes were stated to have not been preserved by him and he had not seen if SI Darpan had prepared any rough notes of the site or not. He or IO had not made any enquiries from the family member of the house while preparing rough notes. There was only one room at the ground floor at the rear portion of the house, which was stated to be a servant quarter. However, he could not remember about number of persons living in the said servant quarter.
PW-22 is Sh. Santosh Tripathy, Senior Scientific Officer (Chemistry) FSL, Delhi, who had placed on record his report Ex. PW22/A as per which the alcohol measuring 90.8 FIR No: 219/2017 Page 28 of 158 mg/100 ml of blood was found in the body of deceased, however, it tested negative for any common poison.
On 01.09.2017, one sealed corrugated box along with forwarding letter was also received at the FSL containing viscera of deceased which was also examined by him vide report Ex. PW22/B and as per said report, no barbiturates, benzodiazepines, phenothiazines amphetamines, cannabinoids, diacetylmorphine, morphine, codeine, cocaine, lysergic acid and LSD were found present in the body of deceased.
On 11.09.2017, again he had received one pullanda containing ATM Cards, which also tested negative for the aforesaid drugs as mentioned earlier by him in respect of Ex. PW22/B During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, the tests were conducted by him somewhere between 15.09.2017 to 26.09.2017 and viscera was stated to have been received in their lab on 17.07.2017.
The second examination was stated to have been conducted on the basis of a letter sent to them by ACP Crime Branch. However, said letter was not brought by him on the date of his examination. He was not familiar with the reason for making request for second examination of the sample. It was FIR No: 219/2017 Page 29 of 158 denied by him that viscera got putrefied, if kept for a period of two months or that the presence of the drug also got minimized or diluted, if examined after two months or on a repeated examination.
Other formal suggestions including preparation of false report were denied by him as wrong and incorrect.
PW 23 is SI George Abraham, 4859/D, CPCR PHQ, ITO New Delhi, who was stated to be working as Nodal officer at CPCR, PHQ on 09.08.2017 and had placed on record the attested copy of PCR form Ex. PW23/A and certificate issued u/s 65B Evidence Act as Ex. PW23/B bearing his signatures at Point 'A'.
This witness was not cross examined by or on behalf of the accused persons despite availing an opportunity in this regard.
PW-24 is HC Vinod Kumar, No. 1355 Crime Branch, R.K. Puram Sector-8, New Delhi, who was stated to be posted in Crime Branch since 2016 and on 03.12.2017, he had joined investigation in this case and when he was present in his office, accused Tazim Khan and Pritam Saini had reached there, who were interrogated by IO/Insp. Ishwar Singh, who had also recorded their disclosure statements and after due inquiry, both of them were arrested by the IO and their personal searches were FIR No: 219/2017 Page 30 of 158 conducted vide memos Ex. PW13/A to Ex. PW13/F, all bearing his signatures at point-B respectively.
Further on 04.12.2017, accused Nitin Sabharwal also reached their office, who was also interrogated, arrested, searched and his disclosure statement was recorded by the IO vide memos already Ex. PW13G to Ex.PW13/I, all bearing his signatures at point-B on each page. Prior to the said instances, even in the month of November 2017, the date which he could not remember, IO/ Insp. Ishwar Singh had seized one Mobile Phone from accused Nitin Sabharwal in his office vide memo Ex. PW24/A bearing his signatures at point 'A'.
This witness was also cross-examined by Ld. Addl. PP for the State, after obtaining necessary permission as he was not disclosing the true and complete facts.
During his cross-examination conducted by Ld. Addl. PP for State, he had admitted that accused Tazim had come to their office on 12.08.2017, and produced a letter received at the residence of accused Nitin Sabharwal from Hemant Chawla, which was seized vide memo Ex. PW24/B bearing his signatures at Point 'A' and said the letter was placed on record as Ex. PW24/C. However, production and exhibition of the said document was objected to by Ld. Counsels for the accused FIR No: 219/2017 Page 31 of 158 persons as it was unsigned and witness was neither a scriber nor an author of same which was an electronic print out and I find that the said objection was valid and legal as this witness was neither the author nor the document was addressed to him nor any certificate u/s 65B of Indian Evidence Act was filed in respect of said document, hence it could not be said that this witness was competent enough to prove the said letter or to have exhibited it during his deposition.
It was also admitted by him that on 31.08.2017, Smt. Shivani Alhuwalia, had produced one golden colour pouch/purse of deceased Hemant Chawla containing two ATMs cards of HDFC Bank which were seized by the IO vide Memo Ex. PW24/C bearing his signatures at point-A and also the fact that on 20.11.2017, accused Pritam Saini @ Sonu had produced one black colour LG Nexus Mobile Phone, which was seized by IO, vide Memo Ex. PW24/D and on 18.01.2018, Ms. Timpi Sabharwal had produced the photocopy of an MOU Dated 13.09.2013 alongwith photocopies of Cheques and receipts vide which she had made various payments to one S.P. Garg and Rockes Sandhu, which was seized by the IO vide memo Ex.PW24/E, all bearing his signatures at point 'A'. He had also correctly identified the accused persons present in the court on that day.
During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, he was stated to be posted FIR No: 219/2017 Page 32 of 158 in Crime Branch, R.K. Puram since 2016 and admitted the fact that when investigation of this case was transferred from PS NFC to Crime Branch, he was already posted there. It was also admitted by him that on 19.07.2017, he was associated with Inspector Ishwar Singh during his posting at Crime Branch and remained so attached and associated till 21.07.2017. It was also admitted by him that during his attachment with Inspector Ishwar Singh, accused Nitin Sabharwal was called for interrogation on 2 or 3 occasions in his presence. However, he did not know if said accused was called to office of Crime Branch for interrogation even during his absence or not. It was further admitted by him that accused Nitin Sabharwal was also subjected to lie detector test in his presence and even the lie detector test of Bhim Singh, Nitin's Mother Mrs. Timpi Sabharwal and Bhim Singh's wife was also conducted in his presence. However, he was not aware of the outcome as the report of lie detector test was not prepared in his presence. He was stated to have visited the spot along with IO, however, no statement was recorded by IO in his presence during the said visit.
Even the complainant was stated to have visited the office of IO twice or thrice along with her daughter. He had no knowledge as to whether IO was sharing the details of this case with senior officials or not.
Accused Tazim and Pritam were never called for lie detector test. He had no knowledge whether CDR of the accused FIR No: 219/2017 Page 33 of 158 Nitin was collected by IO or not. However, his statement was stated to have been recorded by IO twice or thrice whenever he was called at Crime Branch office. They had also verified the places where Nitin and others had gone on the night of incident and also examined few people including a girl whom they had met that night, however, he had no knowledge whether statement of said girl was also recorded by the IO or not.
Similarly, he had no knowledge as to whether IO had verified the locations of the phone of accused in the intervening night of incident or not. They had not met any food vendor whom the accused had visited on the said night, however, they had also visited House No. A-168, NFC during their investigation but he did not know, if the owner and occupants of said house were examined by the IO or not.
It was though admitted by him that during their investigation, it was revealed that accused persons had visited the house no. A-168, NFC in the intervening night of incident. Though, thorough search of the house of accused Nitin Sabharwal was conducted but no chance prints were lifted. It was further admitted by him that none of the accused persons was under arrest at the time of their visit and searching the house.
He had never visited AIIMS Hospital and had no knowledge about number of visits made by IO to the said hospital as a request letter for obtaining subsequent opinion by FIR No: 219/2017 Page 34 of 158 medical board was sent by IO through some other staff personnel. IO had not seized any documents regarding medical history of deceased in his presence nor he had any knowledge about IO's visit to the sister of deceased at their house.
Formal suggestion were denied by him as wrong and incorrect.
During his cross examination conducted by Ld. Counsel for accused Pritam Saini, he had admitted that statement of Pritam Saini was recorded as and when he was called to their office. He had also admitted the correctness of his mobile number and the fact of accused Pritam having called him on his mobile on number of occasions prior to his arrest. However, it was not remembered by him as to whether accused Pritam Saini also called him on 09.08.2017, 10.08.2017 (twice), 14.08.2017, 16.08.2017, 19.08.2017 and 12.08.2017. Other formal suggestions were denied by him as wrong and incorrect.
Even in his cross-examination conducted by Ld. Counsel for accused Tazim Khan, all suggestions put to him were denied by him as wrong and incorrect.
PW25 is Ajay Kumar, Nodal Officer from Bharti Airtel Ltd, who was stated to be working as such since 2007 had placed on record CAF and CDR of mobile Nos. 8826619431, 9810494693, 9871808692, 9910661640 and 9810983475 for the FIR No: 219/2017 Page 35 of 158 period 01.07.2017 to 05.07.2017 and the location chart, which were placed on record as Ex. PW25/A1 to PW25/G. During his cross-examination conducted by ld. Counsel for accused Nitin Sabharwal, he had admitted that on 04.07.2017, at about 10.49.48 PM, there was an incoming call from the mobile of accused to mobile no. 9910661640 belonging to one Priya and again at 11.10.02 PM, there was an incoming call from the same number to the same number and the location of Mobile No 9910661640 was within the area of Sant Nagar, New Delhi. It was also admitted by him that at about 01.47.43 hours on 05.07.2017, again there was an incoming call from same mobile to same mobile number and location of the receiver was shown in the same area of Sant Nagar.
In his further examination-in-chief dated 28.01.2020, he had produced CAF and CDR of mobile No. 9811011773, 9810055499, 9810095588, 9871843288 and 9818033130 as Ex. PW25/H to Ex. PW25/P. During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, he had admitted the locations of mobile of accused at various times and at various places to show that accused was not confined to one place but was roaming from one place to another, however, he had no knowledge about distance between New Friends Colony and High Court of Delhi or Sunder Nagar.
FIR No: 219/2017 Page 36 of 158This witness was not cross examined by or on behalf of other accused persons despite availing an opportunity in this regard.
PW-26 is Dr. AK Singh, PSO, CFSL, CBI, who had deposed that a request for polygraph test was made to the Director, CFSL by IO Sh. Ishwar Singh, accordingly, the request was marked to him being the HOD, Forensic Psychology Division and the polygraph examination was fixed for 6 th and 7th February, 2018. Copy of request was placed on record as Ex. PW26/A bearing his signature at Point 'A'. Thereafter, he had conducted Polygraph examination of three persons, namely, Timpi Sabharwal, Yashoda and Bhim Singh on 6 th and 7th February, 2018 and his detailed report dated 19.02.2018 had been placed on record as Ex. PW26/B bearing his signature at point A on each page, which was communicated to ACP concerned on 20.02.2018 vide communication Ex. PW26/C bearing the signature of Director N Ravi, whose signature he had identified as he had seen him writing and signing during the official course of his service.
This witness was not cross examined by or on behalf of the accused persons despite availing an opportunity in this regard.
FIR No: 219/2017 Page 37 of 158PW-27 is Pawan Singh, Alternate Nodal Officer, Vodafone Idea Limited, C-45, Okhla Phase-II, New Delhi, he had produced the CAF and CDR of mobile No. 8586890907 which was registered in the name of Pritam Saini, 9871940217 and 9923133022 which were issued in the names of Ram Bachan Singh and Sanjay Chanderkant Hirlekar respectively and placed on record, the details as Ex. PW27/B to Ex. PW27/K3 and the certificate u/s 65B of Indian Evidence Act (Ex. PW27/K4) all bearing his signature at Point 'A' During his cross-examination conducted by Ld. Counsel for accused Pritam Saini, it was admitted by him that he did not possess any technical qualification as his appointment was not in technical grade. The stamp of company was stated to have always remained in his possession, however, he was not maintaining any record about his having appeared as witness in the courts. CAF of accused Pritam Saini was stated to be placed on record from the Service Delivery Department of the Company, however, he could not remember the date of its receipt. It was though handed over to him by Sh. Mangal Singh, Deputy Manager but no receipt in this regard was executed by him.
Formal suggestions were denied by him as wrong and incorrect. However, it was admitted by him that he could not tell the exact location of any mobile user.
FIR No: 219/2017 Page 38 of 158During his cross-examination conducted on 12.03.2020, on behalf of accused Nitin Sabharwal, he had stated that main server of the mobile service company was situated at Pune and the IT department used to maintain the data pertaining to call details. It was also admitted by him that certificate u/s 65B Indian Evidence Act was neither prepared nor attested by any official from Pune. It was also admitted by him that IO had not examined any official from Pune in his presence regarding the authenticity of the certificate Ex. PW27/K4. Other formal suggestions were denied by him as wrong and incorrect.
PW-28 is SI Satish Kumar, No. D-4931. PS, IGI Airport, who had deposed that he was posted as Incharge, Crime Team, South-East District on 05.07.2017, when on receiving a call from control room, he reached at the spot along with his crime team comprising of HC Mahesh (photographer) and HC Rakam (finger print proficient). SI Darpan alongwith his staff was found present there. dead body of Hemant Chawla was lying on the floor, whose name was revealed to him by the police party. He had inspected the spot thoroughly and photographer had taken several photographs of the scene of crime. One empty bottle of Sula Wine was also found lying near the dead body, he had directed the IO to seize the same and prepared his detailed report Ex. PW28/A bearing his signatures at point A and handed over the same to IO.
FIR No: 219/2017 Page 39 of 158During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, he was stated to have reached the spot at around 09.30 AM, however he could not remember the number of police officials who were present there. He was stated to have inspected the entire house and room and other portions with his team members but he could not remember if had come across the servants and other occupants of the house there or not. Carpet kind of thing was stated to be lying beneath the dead body of Hemant Chawla, whose photographs were also taken in his presence by his team and after seeing photographs Ex. PA2 and Ex. PA5, he had admitted that there were pillows, blanket and a carpet beneath the body of deceased. Till the time he remained present at the spot, nothing was seized either by the crime team or by local police. He himself was stated to have touched the dead body to check it, however, neither he nor any members of his team had made any effort to call for a doctor at the spot. IO had also not called any doctor in his presence. He had no knowledge about the person who had called for ambulance at the spot.
It was deposed further by him that on his visual inspection he had not noticed any injury on the person of deceased but could not remember, if the dead body was removed in his presence or after he had left the spot. Similarly, he also could not remember if people from the neighbourhood were present at the time of their conducting proceedings at the spot or not including the presence of accused Nitin. They had not FIR No: 219/2017 Page 40 of 158 examined and interrogated any member of the house while conducting the proceedings, hence, he had not recorded anybody's statement in that house. He had no knowledge if local police had examined any members of the house or not. He could not remember if any telephone or any such instrument was found inside the room, where deceased was lying, however, the room was already lying opened when they reached there. He could not remember if had asked the local police to seal the room after closing the same nor he could remember if local police itself had locked the room and sealed it. Few articles were seized by the crime team during their inspection of the house. He could not remember if the local police had detained any servant or working staff of the house during his presence there. SDM was stated to be not present at the spot as long as he remained there, nor any dog squad had visited the spot in his presence. Since he could not recognize the members of family of deceased, hence he could not tell as to whether they were present at the spot or not.
PW29 is Ram Bachan S/o Sh. Ram Lakhan Singh, aged 39 years. R/o H. No. 9. Samman Bazar, Bhogal, who was stated to be working as a Driver in the house of accused Nitin Sabharwal and used to ply the vehicle of Ms Timpy Sabharwal. In the year 2006, accused Nitin alongwith his mother Timpy and his wife and children were residing with him and his duty hours were stated to be from 9.30am to 7pm. On 04.07.2017, he was stated to have left for his house at around 7pm and on the next day at about 5.00 or 5.15 AM, he had received a call from Ms FIR No: 219/2017 Page 41 of 158 Timpy Sabharwal, who asked him to come soon as Hemant had expired (Beta Jaldi se saja, Hemant Bhaiya ki saya death ho gai hai Balam ko bula lao). Thereafter, he reached the home of Ms. Timpy Sabharwal in New Friends Colony and left to call Balam from the house of deceased on a bike. Balam had also reached the house along with one Guard and in the meantime, some police officials had also arrived there. Accused Nitin Sabharwal was stated to have told him nothing.
Since this witness had not supported the case of prosecution, hence he was cross-examined by Ld. Addl. PP for the State after declaring him hostile, during which he had admitted that police had recorded his statement after making inquiries from him. However, it was specifically stated by him that accused Nitin Sabharwal had never asked him to remove the articles. S. Panchu, who was working there was stated to have and had carried the said articles i.e. beddings and quilt lying near the body of deceased and had put the same in the dickey of the car.
This witness was also not cross examined by or on behalf of the accused persons despite availing an opportunity in this regard.
PW-30 is Sh. Harun Pratap, the then ACMM-02, Central, Tis Hazari Courts, who had recorded the objections/consent of the persons, who were subjected to the FIR No: 219/2017 Page 42 of 158 polygraphy test namely one Bhim Singh Patwal, Yashoda Patwal and Timpy Sabharwal and had placed on record, copy of his order Ex. PW30/A passed on the application.
During his cross-examination conducted by Ld. Counsel for accused Pritam Saini, it was deposed by him that all the persons, whose polygraphy test was allowed were present before him and he had also informed them about their consent, which was also reflected in the proceeding sheet. He had denied the suggestion that consent was not taken in writing from the accused persons.
PW-31 is Ms. Renu Sehgal D/o Sh. DC Sehgal, aged 70 years, R/o C-633. Ground Floor, New Friends Colony, who was stated to be residing at the said address and on 05.07.2017, she came to know that Hemant Chawla son of her friend Ms. Neena Chawla had died due to some reason, whose body was preserved at AIIMS Trauma Centre, New Delhi, where she had identified his dead body vide memo already Ex. PW19/H bearing her signature at point B, and on the same day, the dead body after its postmortem was received by her vide memo already Ex. PW10/A bearing her signatures at point B. During her cross-examination conducted by Ld. Counsel for accused Pritam Saini, it was deposed by her that Balam, who was the driver of Hemant Chawla had informed her on phone on 05.07.2017 at around 06.00 AM about his death and FIR No: 219/2017 Page 43 of 158 The police had also reached simultaneously. Relatives of Hemant i.e., Aman Vadhera and his wife whose name she did not know, had come within three minutes of her arrival at the spot, however, her statement was not recorded on 05.07.2017 by the police and it was recorded only at the time of handing over the dead body to her after postmortem. Thereafter, Police had never recorded any second statement of hers.
This witness was not cross examined by or on behalf of other accused persons despite availing an opportunity in this regard.
(B) Now I propose to discuss the testimony of material witnesses.
PW-1 is Dr. Antara Deb Barma, Senior Resident, from Department of Forensic Medicine, AIIMS, New Delhi, who had deposed that on 05.07.2017, she was posted as Senior Resident at Department of Forensic Medicine, AIIMS, on which day, she had conducted postmortem on the body deceased Hemant Chawla on receipt of an application of IO in her Department. Application had been placed on record as Ex. PW1/A bearing her initials at point-A, and she had also received inquest papers i.e., total 24 pages comprising of death report, MLC, etc., and postmortem was started at 02:30 PM and concluded at 03:30 PM. As per record, there was stated to be an alleged history of deceased having found in an unconscious and FIR No: 219/2017 Page 44 of 158 unresponsive condition at House No. B-439, New Friends Colony, New Delhi on 05.07.2017 at about 04:30 AM, and when he was brought to AIIMS Casualty, he was declared brought dead vide MLC No. 5796/2017. Upon examination, she had found three injuries on his body as under:
(i) Two numbers of contusions measuring 0.5 cm x 0.4 cm and 0.3 cm x 0.3 cm. were present over the anterolateral aspect of the left side of neck situated 5 cm and 6 cm left to the midline and 8 cm below the left angle of mandible. On dissection of the neck, extravasation of blood was present within the muscle layers of neck underlying the external contusions and extravasation of blood was present within the layers of the left side of thyro-hyoid muscles.
(ii) A contusion of size 6 x 7 cm was found present over lateral aspect of right arm 8 cm above the elbow and multiple contusion ranging from 1 cm x 0.5 cm to 2cm x 2 cm. were found present over lateral aspect of left arm. 7 cm above the elbow.
The eyes of deceased were found closed. Conjunctiva was congested, mouth was closed, bluish
discoloration of lips was present and the frenulums and inner aspect of buccal mucosa intact, nails bluish discoloration of nails was present and in her opinion, the time since death was about 12 hours and injury No. 1 as mentioned by her in her detailed report FIR No: 219/2017 Page 45 of 158 was caused as a result of pressure over neck whereas injury No. 2 & 3 were caused by blunt force impact. All the injuries were ante-mortem in nature and fresh in duration. One Doctor Jay Narayan Pandit, J.R had also remained associated with her while conducting the postmortem and her postmortem report was Ex.PW1/B bearing her signatures at point-A. Thereafter, an application was received by HOD from IO to give opinion on cause of death in reference to above said postmortem report by a board of doctors and subsequent opinion was also given in this case by a medical board constituted by HOD comprising of this witness, one Dr. Jay Narayan Pandit, JR, Dr. Abhishek Yadav, Assistant Professor and Dr. T. Millo. Professor and after going through the entire record, it was observed by the members of the Board that the viscera of the deceased had shown consumption of moderate amount of alcohol and there were no other significant injuries other than the neck injury present over any other part of the body.
Three photographs were also taken during the postmortem proceedings and after going through the entire record, it was unanimously opined by the members of board that the cause of death in this case was Asphyxia as a result of manual strangulation. The detailed report of board alongwith photographs in this regard were placed on record as Ex. PW1/C bearing her signatures at point-A on each page and the said report also bear the signatures of other members of the board, which she FIR No: 219/2017 Page 46 of 158 could identify as the same were singed by the Doctors in her presence.
Thereafter, another application of IO was received by HOD, with the request to provide subsequent opinion as to cause of death, wherein two queries were required to be answered/clarified by the members of the board and pursuant to said application, she alongwith the above members of board opined the time since death mentioned in PMR was an approximation and was effected by many environmental factors and preservation in cold chambers and time since death as mentioned in PMR was about 12 hours which could have varied in a range of 2-3 hours on either side of 12 hours.
It was further opined that asphyxial death in the case of strangulation might be immediate as well as the deceased might have remained in a gasping stage for sometime before death and the detailed report in this regard was proved as Ex.PW1/D, bearing her signatures at point-A along with signatures of other doctors.
During her cross-examination conducted by Ld. Counsel for the accused Nitin Sabarwal, she was stated to have completed her MD in the year 2015. Apart from Dr. Jay Narayan Pandit, no other person was present at the time of conducting postmortem of deceased and the postmortem was conducted by aforesaid two doctors after following standard protocols as FIR No: 219/2017 Page 47 of 158 prescribed in various medical literatures all over the country. It was admitted by her that MD Students worked under supervision of Senior Doctors and since both of them had conducted the postmortem and had simultaneously noted down the findings but Dr. Jay Narayan Pandit was working under her supervision. Firstly, the external examination was done and thereafter postmortem incision was given. First of all, cranial cavity was opened and then thoracic cavity was opened, abdominal cavity was opened next and finally, the neck was opened.
She had denied the suggestion that entire process could not have been completed within a span of one hour, however, the videography of postmortem was not done as there was no request from the IO. No other photographs except three photographs as placed record were taken. Dead body could have been preserved only if the cause of death was not certain and only on the request of IO, second postmortem could have been conducted. She had not handed over any document including PM Report to the IO, however, she could not remember, if she had only informed the IO, about the fact that the cause of death was kept pending. Similarly, she could not remember the date of handing over of documents of postmortem to the IO.
It was also deposed by her that doctors did not interact personally with the IO after the postmortem. HOD as well as Dr. Abhishek Yadav were informed about the fact that the opinion regarding cause of death was kept pending. Dr. Abhishek FIR No: 219/2017 Page 48 of 158 Yadav and Dr. T. Millo had not conducted the autopsy and had not examined the dead body. Family members of the deceased had come and met her in the office of the HOD in the presence of IO, however, she could not remember the date. The family members of deceased were also stated to have met other members of the board in the presence of HOD on two occasions. In one of which IO was present and at the time of other, IO was absent. She herself had not given any findings regarding the cause of death after receipt of viscera analysis report of the deceased.
Manual strangulation was stated to be a violent form of asphyxial death where there was compression of neck manually by external force causing compression of the underlying neck muscles and structures leading to death. Neck structure constituted of strap muscles of the neck and laryngo pharangeal complex, trachea, carotid sheath, carotid bodies, arteries, veins, nerves, cervical vertebral columns, Larynx was stated to be a part of an important structure.
She was asked about her being in agreement with the findings in cases of death by manual strangulation given in various medical commentaries including Modi's, to which she had replied that there were various general findings mentioned in the said manuals regarding manual strangulation, however, each and every case had got its own merit and the reference books mentioned in the questions were followed in every case.
FIR No: 219/2017 Page 49 of 158To another question which was put to her regarding presence of external appearance on neck due to the constricting force applied to the neck by hand or throttling, she had stated that there would be external appearance on the neck in case of manual strangulation but again, it depended upon the time taken by the assailant and pressure given by him on the neck.
She had agreed with the questions that there would be marks of thumbs in case of death due to throttling. However, it was stated by her again that there would be contusions resembling pressure over the neck by thumb which might be either unilateral or bilateral side depending upon the merits of different cases and the marks of thumbs and fingertips were generally present as per medical literature, however, again those findings would depend upon merits of each case as there was no universal application of the general rule.
It was further deposed by her that MLC did not show any external injury on the body of deceased and contusions were found only on one side of the neck, hence they had also used the word contusion instead of thumb or fingerprints impression.
She had also deposed that finger-pad bruise was a type of contusion and in the postmortem report, two contusions were already mentioned and fingernail marks were not found FIR No: 219/2017 Page 50 of 158 during the autopsy. Fingertip pressures were stated to be definitely due to pressure, however, the size and shape of typical fingertip bruises as described in various medical literatures might have varied in practical application.
The witness was also confronted and shown the textbook of medical jurisprudence and toxicology authored by one Jai Singh P. Modi and was shown Page 452 paragraph 2 of the said literature where it was mentioned that fingertip bruises each disc shape and 1 to 2 cm in diameter look like red bruises when examined soon after the death, did she agree with this or not, to which she had replied that as per the medical literature shown to her, a typical fingertip bruise had been mentioned, however, a medical literature was only a reference book and she had not agreed with the observations given in the said book, as practical application would always be very typical in which textbook findings might not be present.
She was again asked about her agreement regarding pressure of marks by thumb and of the fingertips on either side of the windpipe in case of throttling, to which she had shown her agreement but again tried to take an escape by saying that practical application would have always varied from typical textbook observations.
Similarly, she was also asked a specific question that a thumb mark would have been ordinarily higher and wider on FIR No: 219/2017 Page 51 of 158 one side of the front of the neck and the finger marks would be situated on its other side obliquely downwards and outwards and one below the other, did she agree to this or not, to which she had shown her agreement but again made the general statement of practical applications being varied with textbook observations. She had also agreed with the observation that only a week victim such as child or frail woman could be strangulated with a single hand but a strong robust man could not be controlled by single hand but had again taken her general defence. She had also agreed that a single hand grip either from right or left from back side could not compress any vital structure and could not kill and virtually could never be used for homicide. She had also agreed with observations made in the Modi's Jurisprudence at page 456 that in case of death by asphyxia due to throttling, the face of the deceased might be noted to the congested, lived and cyanosed and generally in case of death by asphyxia, the face of the deceased would be marked with petechiae as mentioned at the same page and again to a specific question, it was stated by her that Asphyxia is produced not only pressure over larynx but also due to pressure over the nerves which regulated the respiratory center of the brain.
She had denied the suggestion that even if the nerves were compressed but larynx was not closed, then same could not result in asphyxia or death of the victim. Similarly, she was also put a question that in case of strong pressure being applied over the larynx sufficient to cause closer of same as well as death, FIR No: 219/2017 Page 52 of 158 there had to be injuries caused to the larynx, to which she had stated that there might be injuries over the larynx but again it depended upon the external force applied on the same, which might have varied from case to case, however, no injuries or fractures were found over the larynx in the present case. She had also agreed with the observations in the Modi's Jurisprudence that in case of death by manual strangulation, a fracture of cornua of the hyoid bone or of cricoid cartilage of the thyroid cartilage was considered necessary consequence of throttling and also that fracture of cornua of hyoid bone or of the cricoid cartilage of the thyroid cartilage were considered necessary consequences of throttling but none of the said factums was observed or noted by her in her post-mortem report.
In her further cross-examination recorded on 07.07.2018, she was again put questions in the question answer form to which she had replied as under:-
She was asked to define a love bite or hickey, to which she had replied that a love bite was given by a person to another during sexual intercourse or during any kind of sexual activity and specific location varied from person to person. She had agreed that a love bite could cause contusions on the skin however, extravasation of blood was not seen in love bite within the deeper muscle layers. Extravasation of blood was defined by her as the spilage of the blood from the destroyed vessels usually caused by some external force.FIR No: 219/2017 Page 53 of 158
She was also shown an editorial from the International Medical Journal Vol. 23, where classification of love bite was given and she had also agreed with the contents of the said editorial, however, again stated that the editorials were only having probative values and were not binding in terms of their applicability which differed from case to case in practical applications.
However, it was admitted by her that even for the purpose of their practical experiences in day to day field work, they used to take help and reference from the literature and derive their knowledge from there only. She had shown her agreement that the medical literatures which were shown to her were based on practical experiences and various case studies of the authors who had scribed various medical journals as were referred to in her cross-examination. However, said medical literature and references were stated to be of academic use only and did not lay down a general guideline for all the students as practical experiences of each and every case was different and she had denied the suggestion that she had deliberately volunteered the statements to cover up the draw backs left out in her postmortem report and also being aware of the fact that same was contrary to the acknowledged medical jurisprudence.
It was stated to have been brought to her notice by Crime Branch officials that the victim was a homosexual, FIR No: 219/2017 Page 54 of 158 however, since no question was put to her regarding performance of any sexual activities on the part of deceased by IO, hence, she had not preserved any samples to ascertain, if any sexual activity had taken place and had further volunteered that there were no external injuries on genital organs of the deceased at the time of his postmortem. Undergarments of the deceased were also not preserved as no request in this regard was received from the IO and the clothes worn by him at the time of postmortem were also not preserved for any purposes for want of any such request from the Police. The garments were stated to be intact as per the postmortem report.
It was, however denied by her that the contusions noticed by her during postmortem on left side of the neck of deceased were the result of love bites or that the colour of encircled portions in photograph Ex. P3 was brownish to bluish in nature and it was further volunteered by her that it was reddish to bluish in nature.
She was again shown page no. 77 of a book on forensic medicine and toxicology by Prof. R. K. Sharma, to which she had replied that she did agree with the literature which was part of the medical text book regarding the age of bruises, however, again it varied from person to person. It was also admitted by her that she was also a content writer of a project called e- pathshala.FIR No: 219/2017 Page 55 of 158
In her further cross-examination conducted in the post lunch session on the same day, it was admitted by her that in case of death of victim, the changes in the colour of the bruise would stop as the circulation of the blood would stop and it would remain as it was thereafter. She had further agreed that if the injury had been caused immediately before the death, then its colour would be red and a colour of injury being bluish, bluish blackish or brownish would be an indicator that it was not a fresh injury but a one which varied from 24 to 96 hours. However, she again started discussing about practicality and general observations in medical generals.
She was not aware of the permissible alcohol limits in various countries for a person to drive a vehicle and could not comment, if a person who had consumed alcohol 100mg/100ml would be physically and mentally conscious and alert as alcohol level of 90.8 mg/100ml was found present in the body of the deceased as per the FSL report, hence, the possibility of a person being in a state of physical and mental alertness even after consumption of that much alcohol could not be ruled out.
It was though admitted by her that in case, a person would have been attempted to be strangulated, then he would have definitely put a struggle but in the same breath, she had again stated that possibility of putting up any struggle and suffering subsequent injuries on the body of deceased could not FIR No: 219/2017 Page 56 of 158 be ruled out and such subsequent injuries could not always be called as defensive injuries.
She was specifically asked that no fractures, wounds, contusions, abrasion were noted to be found on the mouth, nose, cheeks, forehead, lower jaw or other parts of body of the deceased on the face, to which she had admitted as correct. She was again put a specific question that the present case was not a case of manual strangulation as a victim of throttling, ordinarily would have suffered injuries over and above those indicative of his/her fatal cervical compressor, head, face, lips, teeth, breast, arms and hands would get commonly injured in an assault which would terminate in fatal chocking, to which, she had deposed that as per her, as well as, in the opinion of Medical Board, it was a case of manual strangulation and stated further that, typical textbook findings were not supposed to be present in each and every case as each case was a signature of its own. She had also agreed to the findings given at page no. 537 of a book "Pathology of Homicide" authored by Lester Adelson but again cited variations from case to case. No scraping was conducted by her nor any clipping of the finger nails of the deceased nor was subungual debris were collected as there was no such request from the IO.
She had denied the suggestions that resistance by the deceased was imperative on his strangulation keeping in view his height, weight and built as well as age. She could not comment FIR No: 219/2017 Page 57 of 158 anything after seeing the condition of the clothes of deceased as to whether any struggle had taken place or not at the relevant point of time with or by the deceased. Similarly, she could not tell that ordinarily struggle marks were noted and evident in the cases of strangulation from the condition of clothes of deceased, in case, if a struggle was put forth.
She was also asked about the fact that in the present case, frenulums and inner aspects of buccal mucosa were intact and Nostrils, ears, tongue etc had also shown no injury, to which she had admittedly agreed. Similarly, she had also agreed that as per Medical Board, no significant injury other than the neck injury was found present over any part of the body or was noticed but denied the suggestion that in view of the aforesaid findings, the present case was not the case of manual strangulation.
She had further admitted about the possibility of a person under influence of alcohol having suffered contusions on his arms due to accidental low level falling or bumping into a hard surface and further admitted that the contusions present on the arms of deceased as noticed was not an entity of strangulation and they themselves on their own did not lead to any conclusive finding of any strangulation.
There was stated to be no laceration of muscles, nor any such injuries were found on the carotid arteries or jugular FIR No: 219/2017 Page 58 of 158 veins and trachea was noted to be normal and no injury was found on the hyoid bone, thyroid cartilage and cucoid. It was further admitted by her that after the age of 40, ossification of the tracheal rings occurred and reduced their flexibility. No distinction could have been made in case of an asphyxial death as to whether it was caused because of airway compression or vascular compression or both and even Medical Board had nowhere mentioned as to whether it was airway compression or vascular compression or both. She was also asked a specific question that generally congestion of lungs could have been caused because of natural reasons such as death caused by heart attack, to which she had admitted as correct but denied the suggestion that congestion of lungs as found in the present case was not because of asphyxial death but it was because of some other reason. However, again she had admitted that congestion of lungs could have also been due to pneumonia.
She had also agreed with the suggestion that it required 33 pounds pressure to close the trachea completely leading to death which was not found to have happened in the present case, however, had deposed further that since there was extravasation of blood within the muscle layer, so it was not possible to measure the quantity of blood. She had also admitted the suggestion that in the present case, extravasation of blood had occurred only on the left side of the neck and no injury was noted on the right side. However, she had denied the suggestion that extravasation of blood on one side and that too without any FIR No: 219/2017 Page 59 of 158 injuries to suggest any pressure on laranex was not sufficient enough to lead a person's death. She had further agreed to the suggestion that in case of throttling, extravasation of blood might have occurred in sub-cutaneous tissues under the fingerpads and thumb marks of the deceased, however, denied the suggestion that mere presence of blood extravasation even on both sides of the neck did not lead to death of a person in case of manual strangulation or that the blood extravasation found present within the muscle layer of neck might have been caused due to inadvertent cut during postmortem.
In her further cross-examination conducted on 11.07.2018, by the Ld. Counsel for the same accused, she had admitted that on 05.07.2017, she had kept the final conclusion about cause of death pending on account of the fact that viscera findings were yet to be received coupled with other circumstantial facts. The findings regarding time of death was stated to be objective findings and the food was found to be partially digested/identifiable as mentioned in her PM report.
She had not been able to answer question properly put to her that since the food was identifiable, hence, it indicated that a person had died within four hours of consumption of food as it depended on the kind of food consumed by a person. She had further stated in reply to a question that she had not noted as to whether the deceased was a vegetarian or non-vegetarian or the kind of food that was identified in his body as she had already FIR No: 219/2017 Page 60 of 158 written in her report that partially digested identifiable food particles were found present. However, the type of food material taken was not always possible to be identified in a dead body. She had stated further that conventionally, the kind of food deceased had consumed before his death was not required to be mentioned in the postmortem reports as it was not possible to identify all the food particles present in the stomach due to digestion process. It was though denied by her that she was giving evasive and contradictory replies to avoid the questions put to her regarding identification of food found present in the body of deceased or that the food though was identifiable but she had erroneously not mentioned its kind. As per her, the possibility of non vegetarian or protein food remaining present in an identifiable/partially digested stage for about 4 - 5 hours after consumption could not be ruled out.
No Histo pathological tests were conducted on the deceased. It was further denied by her that no pre-death pathological conditions of deceased were noted nor any medical record of his deceases was checked during his postmortem. Though, she was stated to have asked the IO to submit every kind of relevant circumstantial details including the medical record pertaining to the deceased but IO had not provided the same to her during initial and subsequent stages.
She was specifically asked about internal postmortem findings in case of myocardial infarction, to which FIR No: 219/2017 Page 61 of 158 she had replied that usually in cases of MI, on internal examination the lungs were edematous and congested. The findings of the heart had varied depending upon the coronary arteries and the branches involved such as occlusion of the said branches of the arteries by atherosclerotic plaque or other thrombus, there could also be associated hemorrhages within the myocardium, left ventricular hypertrophy, multiple petechae over the epicardial surface of heart. There might have been valvular atrophy/calcifications, there might have been other arterial disorders like myocardial bridging phenomenon and the weight of the heart might have been more than the average weight and there might be associated findings of conduction system defect or any patent sinuses in between the chambers of the heart and the other organs might have remained uneffected sometimes in long standing cases of chronic heart disease kidneys might have shown findings like contraction etc. She had refused to answer a question that a person aged more than 40 years, who was also obese and non- vegetarian, alcoholic and smoker was prone to heart attack as it was stated to be a hypothetical question. It was also stated by her that it was not necessary to go for histo pathological examination though sometime it might have been necessary. She had further refused to answer the question that the consumption of heroine, cocaine and alcohol could have increased the risk of death manifold, citing it to be a hypothetical question. She had also FIR No: 219/2017 Page 62 of 158 denied the suggestion that she was giving evasive replies by citing hypothetical questions being put to her.
The viscera was stated to have been sent for chemical examination to rule out the possibility of any poisonous, or other substance in the system of the deceased and to a specific question regarding consumption of anti depressants, anti psychotics and alcohol leading to respiratory failure, she had replied that such possibility could not be ruled out. Again she had declined to reply that a person who snored heavily and consumed alcohol might have died suddenly due to asphyxia caused on account of sleep apnoea citing it to be a hypothetical question.
The fact that the deceased was having anti depressants and anti psychotics as he was undergoing treatment for depression was not brought to her notice by IO or anybody else. Temperature of the body of the deceased was not noted down as it was brought from cold chambers. She had further stated that in case of death by postural asphyxia, the deceased might have lied down in an almost inverted position which had allowed the abdominal viscera to push up the diaphragm, such possibility could not have been ruled out. Similarly, it was also stated that in case of an obese person, the chances of death as a result of postural asphyxia being higher could not be ruled out.
As far as her knowledge was concerned, in most parts of the world including India, bio-markers were not needed FIR No: 219/2017 Page 63 of 158 and used to differentiate between ante-morterm and postmortem injuries.
She had denied the suggestion that the opinion dated 16.11.2017 which was given subsequently in response to the queries raised by the IO, were incorrect and were given in order to suit the case of the prosecution or that for that very reason, no such notings or observations had existed in the previous reports dated 05.07.2017 or 12.10.2017. It was further denied by her that the findings were constantly altered at the behest of IO as well as family members of the deceased to suit the case of the prosecution or that after having given a conclusive finding on 05.07.2017 about the time of death to be about 12 hours before conducting postmortem, they had given a subsequent opinion to defeat the defence of the accused and the facts which had emerged during the investigation. However, it was admitted by her as correct that accused Nitin Sabharwal had left his house at 11.00 PM on 04.07.2017, which fact came to her notice after perusing the documents submitted with her by the police. However, she had denied the suggestion that the factum of variation of time in a subsequent report was introduced by her to plug in the loop holes in the case of the prosecution or that the PM report dated 05.07.2017 & 12.10.2017 were based on erroneous findings which were contrary to the medical literature.
The medical literature put to this witness during course of her cross-examination was collectively marked as FIR No: 219/2017 Page 64 of 158 mark-A running into 83 pages appended with a certificate u/s 65- B of the Indian Evidence Act.
In her further cross-examination conducted on 12.07.2018, by Ld. Counsel Sh. Sandeep Sehgal, for the accused Tazim Khan, she had stated that asphyxia could not have been caused by the over dose of alcohol or by asthmatic attack as the over dose of alcohol or drugs could not have even caused as asthmatic attack. The blood was taken from heart for the purpose of viscera and was not taken from peripheral area as same was not necessary. She was stated to be aware of postmortem drug re- distribution which was absorption of the contents of the stomach and the blood and admitted that such drug re-distribution was due to the movement of liquid in the stomach after the death.
The possibility of higher concentration of any particular element in blood taken from heart could not be ruled out, only if blood was analyzed, however, routinely not only blood but other organs of the body were also preserved for viscera. To a suggestion put to her that a block removal of neck structures might have produced artefacts in the neck tissues which resembled bruises, she had replied that it would depend if proper postmortem procedure was not followed i.e., if cranial cavity, thoracic cavity, abdominal cavity were opened respectively in that order and neck dissection was done at the end, then it would not produce postmortem artefacts. She had denied the suggestion that she was overtly influenced by the FIR No: 219/2017 Page 65 of 158 family members of the deceased and IO during the course of postmortem or that her opinion could have gone wrong at anytime as those contusions on the neck as mentioned in the PM Report were insignificant and could not have caused death of the deceased.
In her further cross-examination conducted by Sh. M. C. Kashyap, Ld. Counsel for accused Pritam Singh, she had stated that she started conducting medico-legal postmortems since the days of her Junior Residency in 2012 and she was posted in AIIMS since February, 2016. She had also conducted postmortems during her MD i.e. from 2012-2015. It was admitted by her that the inquest papers contained brief facts of the case, statements and other inquest proceedings papers and reading or study of inquest papers was very much necessary before conducting the postmortem, as it constituted a part of the postmortem proceedings. The clarifications were also taken from IO, if the same were required. IO was stated to have briefed her in this case as well but police presence was not allowed during the course of postmortem. Temperature of the body of deceased was stated to have the least role to play in determining the time of death. Time since death was always stated to be given in range and the possibility could not have been ruled out about colouring of lips and nails turning bluish due to drug and poisonous substance. The objective findings were stated to be given in her PM Report and also mentioned in the column pertaining to cause of death. She had denied the suggestion that she had not given FIR No: 219/2017 Page 66 of 158 any conclusive findings regarding manual strangulation as being the cause of death in her PM Report dated 05.07.2017 and that those two contusions marks to be noted on the neck were insignificant to cause death due to manual strangulation and that is why she had kept the opinion regarding the cause of death of the deceased pending on that day. She had not sought any opinion from her seniors after conducting postmortem to conclusively ascertain the cause of death as same was not considered necessary by her. The postmortem was stated to be conducted under the supervision of HOD of department, however, no forensic photographer in the Department used to take photographs. She could not recollect as to whether photographs in this case were taken by a Forensic Photographer or not. She had also taken photographs herself in this case with a digital camera which were also placed on record by her. The Camera and the Memory Card used by her were stated to be the departmental properties which were used for academic and research purposes and they used to take photographs regularly of almost all interesting postmortem cases which were perused for academic and research purposes and if needed they were also perused for medico legal purposes and usually such photographs were not handed over to the IOs as they were departmental property and if IO had asked for any particular photograph taken by them during postmortem, then he had to give an application in writing to the department. However, she could not produce the memory card nor it was asked from her by the IO. It was admitted by her that a letter written to department by Inspector FIR No: 219/2017 Page 67 of 158 Ishwar Singh at page no 119 of the court file was undated and did not even bear the date below her signatures. She was stated to be working in the mortuary since 16.11.2017, which was a part of department of FMT and other members were also posted in the said department but she could not recollect the number of times, when the meetings of Board were called by Chairman, i.e., Prof. T Millo. She had again denied that no meeting was called by Chairman or that the document was placed separately before each member for the purpose of obtaining his signatures or that the injuries on the person of deceased were not sufficient to cause his death and he had died a natural death which might have been due to cardiac arrest and further it was denied by her that from the inquest papers placed before her, there was no hint of any foul play and that is why she had kept the cause of death pending on 05.07.2017 or that findings given the PMR qua cause and time of death was under the influence of family members of deceased or that she was deposing falsely.
PW-3 is Dr. T. Millo, Professor Department of Forensic Medicine, AIIMS who had deposed that on receipt of an application mark-A dated 29.09.2017 addressed to the HOD, FMT, AIIMS, a Board of Doctors for providing opinion on cause of death in PM Report No. 907/17 was constituted comprising of himself, Dr. Jay Narayan Pandit, JR, Dr. Antara Deb Barma, SR and Dr. Abhishek Yadav, Assistant Professor as its members and after going through the entire record, it was observed by the members of the board that viscera of the deceased had shown FIR No: 219/2017 Page 68 of 158 consumption of moderate amount of alcohol and there were no other significant injuries other than the neck injury present over any part of his body, hence, it was unanimously opined by the Doctors of the Board that it was a case of asphyxia as a result of manual strangulation. The detailed report of the Board Members was already Ex.PW1/C, bearing his signatures at point-B on Page-1, 2, 3 and at point-D at page-4. While giving subsequent opinion, he had also seen the photographs taken at the time of autopsy which were Ex. P-1 to Ex. P-3.
Another application mark-B dated 16.11.2017 was also received at the department which was marked to him by HOD on the same day and pursuant to said application, he alongwith other Board members had opined that the time since death mentioned in PM Report was an approximation and was affected by many environmental factors and preservation in cold chambers as the said time was mentioned being 12 hours from the time of conducting postmortem which could have varied in a range of 2- 3 hours on either side of 12 hours and in response to the second query, it was opined that asphyxial death in case of strangulation might have been immediate as well as deceased might have remained in gasping stage for sometime before his death. The subsequent opinion dated 16.11.2017 was already Ex.PW1/D on record, bearing his signatures at point-D. In his cross-examination conducted by Ld. Counsel on behalf of accused Nitin Sabharwal, he had admitted that the dead body of deceased was not examined by him and his opinion FIR No: 219/2017 Page 69 of 158 was based upon the documents placed before him prepared by Dr. Antara and forwarded by IO. It was further admitted by him that the documents and findings pertaining to postmortem which were put up before him were based upon the subjective and objective assessment of Dr. Antara and Dr. Jay Narayan Pandit and his own report was also based upon the report so prepared by those doctors and his own individual contribution to the opinion was also subjective as well as objective.
A specific question was put to him regarding his objective opinion/assessment about cause of death, only if he had personally examined the object being the dead body, to which he had replied that he could not give the primary opinion and his secondary opinion was based upon the documents of this case only.
He could not remember the exact number but the members of the board had many meetings with HOD Dr. Sudhir Gupta in connection with this case. However, he could not remember if IO had also participated in those meetings or not. Though it was admitted by him that IO had come few times for briefing about the facts of the case. The family members of the deceased were stated to have never met the members of the medical board. However, sister of deceased was stated to have come to meet HOD only once and since he himself was also present there hence, he had seen her in the office of HOD, but he had no knowledge whether she had any discussion with HOD or not. Family members of the deceased had not met and briefed FIR No: 219/2017 Page 70 of 158 him about anything. It was also denied by him that he was giving an evasive reply as family members of the deceased had come and met him in the presence of other board members.
He was stated to have gone through the inquest papers of the deceased but could not remember as to whether IO had shown him the papers of the case after his first opinion or not. The second subsequent opinion Ex. PW1/D was stated to have been given by him only in connection with the queries raised by the IO and that opinion was not general but specific in nature. The fact mentioned in application mark-B regarding suspects having left the place of occurrence at 11.00 pm and the time of death being mentioned as 02:30-03:30 AM were not brought to their notice at the time of rendering of first opinion by the board. Even the second opinion which was given by the Board was stated to be only an academic opinion based on medical, literature and their experience.
It was also stated by him that gasping stage could have been produced due to effect of asphyxia on the brain which was also known as cerebral hypoxia. In response to a question regarding causes of gasping stage, it was stated by him that it could have been produced by mechanical compression of neck, chocking, toxic gases, certain poisons etc. Cerebral hypoxia was stated to be a general term and there could have been lack of oxygen supply to brain due to mechanical compression of neck, chocking, toxic gases etc. Further he had explained the lack of oxygen in brain as the clinical manifestation of lack of oxygen to FIR No: 219/2017 Page 71 of 158 the brain might be due to confusion, disorientation, headache and later on it might lead to coma and the common postmortem findings in case of lack of oxygen to the brain might be congestion and edema of brain, congestion of conjunctiva, congestion and edema of lungs, generalize congestion of all the internal organs and bluish discoloration of nails, lips etc. In his further cross-examination conducted on 24.07.2018, he had stated that there might or might not be external appearances on the neck due to constricting force applied to the neck in case of death due to manual strangulation by hand or throttling. It was also stated further by the witness that in the MLC of the deceased, it was mentioned that he was brought dead and no external injury was found on his body.
Further to a question that generally in case of death due to throttling, there would have been marks of pressure by thumb and the finger tip on the either side of the wind pipe, he had replied that it might or might not have existed depending upon the manner and method in which the force was applied. The words finger pad bruises or finger nail marks were stated to be not reflected in the PM report and in his opinion, it was not mandatory that a single hand for manual strangulation could have been generally used only in case of weak victims such as children, frail women and a strong robust person could not have been controlled by a single hand.
FIR No: 219/2017 Page 72 of 158He had shown his disagreement to the suggestion put to him that a grip from single hand either right or left from back side would not compress any vital structures and hence, could not kill and never caused homicide. Though he had agreed with the findings given in a textbook of Forensic medicine authored by one Sh. Anil Aggarwal but he had further stated that as per his experience and other standard textbooks, the facts mentioned in the said book were not absolutely true and variations did occur from case to case. He had also agreed that the books authored by Forensic Experts were based upon actual case studies of the events and incidents which were analyzed to give the findings and the views contained in such books and had further stated that Sh. Anil Aggarwal in his book might have used case reports, reported by other Authors or might have been done by himself and used the same for authoring the book. However, as per his experience of 20 years in forensic field, the case reports and the findings varied from case to case and the Forensic Expert had to interpret in totality based on his scientific findings and his expertise interpretations. It was though admitted by him that the objective findings given in the PM Report dated 05.07.2017 remained the same even at the time when the board had given its opinion on 12.10.2017 and there were no fresh objective findings.
To a specific question he had replied that based upon postmortem examination, it would have been difficult to comment whether throttling was caused by a single hand or double hand and in reply to another specific question he had FIR No: 219/2017 Page 73 of 158 stated that in case of strangulation, asphyxia might have occurred due to compression of larynx and trachea and also hypoxia due to compression of the neck vessels like jugular veins but it was difficult to comment which mechanism had occurred in the process of strangulation like single effect or combined effect. He had agreed to the suggestion that specific injury to trachea, larynx, carotid arteries or jugular veins was not mentioned in the PM Report. However, there was bleeding in the neck muscle layers underlying external injury over the neck. However, he had denied the suggestion that he was giving an evasive reply. He had admitted the suggestion that extravasation of blood on one side and that too without any injuries to suggest any pressure being applied on the larynx was not sufficient to lead to a person's death and hence the injury no. 1 as mentioned in the PM Report by itself was not sufficient to cause death of the deceased. However, it was added further by him that since those injuries were located in the vital part of the body which was a sign of compression of neck.
He had specifically denied the suggestion that the contusion found on the neck as mentioned in the PM Report could have been a result of love bite or hickey. Though he had agreed with the suggestion that a love bite during the sexual play might cause petechial bruising (extravasation of blood) in the finger, cheeks, neck or breast region, which were generally superficial in nature.
FIR No: 219/2017 Page 74 of 158The sister of deceased was stated to have disclosed to the HOD that he was homosexual when she had come to inquire about the case. He had asked Dr. Antra as to whether she had done any examination during postmortem about any sexual act having been committed on or by the deceased around the time of his death and It was admitted by him that in her PM Report, there was no such finding. However, this fact was discussed within the Members of the Board but they had not prepared any document or note sheet regarding the discussions of Members of the Board in relation to the examination of the deceased conducted by Dr. Antra. It was though denied by him that he had deliberately introduced the fact of his having asked Dr. Antra about examination of any sexual act on the deceased.
As per PM report, there were no findings mentioned therein suggesting any of the deceases such as Coronary artery disease, intracranial hemorrhages, pneumonia, bronchial asthma, TB, epilepsy, diabetes mellitus, hypertension, venereal disease, HIV, syncope, dizziness, addiction, etc. As per inquest papers, no information regarding the deceased was being under the care of psychiatrist and taking anti psychotic medicines or anti depression medicines was provided to the doctor by the IO as per inquest papers.
He had agreed to the suggestion that a person, who was conscious and healthy must have generally put up resistance at the time of strangulation and also that in medical terms, injuries sustained by the victim during struggle would be known FIR No: 219/2017 Page 75 of 158 as defensive injuries. To a specific suggestion put to him, he had stated that it was difficult to comment as to whether injury no. 2 and 3 were defensive injuries or otherwise. He had though agreed to the suggestion that the book authored by Lester Edelson titled as " Pathology of Homicide", that a victim of throttling ordinarily presented injuries over and above those indicative his/her fatal cervical compression. Head, face, lips, teeth, arm, breast and hands were commonly injured in assaults which terminated in fatal chocking. However, it was stated further that it was not an absolute fact and the pattern of injuries might have varied from case to case.
In his further cross-examination conducted on 03.08.2018, by Sh. Viraj Datar, representing the same accused, the circle of willis was defined by him as a connection of blood vessels supplying the brain and admitted that the carotid arteries and jugular veins from either side of the neck meet in the circle of willis. A suggestion regarding a pressure being exerted only on one side to the carotid or jugular still continuing the supply to brain from other side was stated to have been possible by him. Further a suggestion was put to him that if a person was asphyxiated but had not died and remained in gasping state, it would have affected the supply of blood to the brain which would have resulted in to damage to the brain in the form of infarct, he had stated that it could have happened and to another suggestion, that in such a case as referred in previous suggestion, there would have been hemorrhage in the brain or other FIR No: 219/2017 Page 76 of 158 manifestations or indications in the brain, again he had stated that it might or might not have happened but admitted that from the objective findings in the PM report, no hemorrhage was found present in the present case. He had refused to comment on the suggestion that during gasping stage, a person would be motion less and would not react to any stimulus or be able to make any sound as it would depend upon the condition of brain and the PM report in the present case was stated to have shown edema and congestion but nothing else in the brain.
He had agreed with the suggestion that in the present case, pressure on neck was shown only on one side with no corresponding marks or injuries on the other side and also the fact that there was no injury or pressure mark on the carotid arteries or jugular veins as per the PM Report and as per literature, cardiac pathology was one of the commonest cause for sudden natural death. As per medical literature, he had also agreed to the suggestion that obesity, smoking, alcohol addictions were some of the risk factors associated with heart diseases which might be commoner in higher age groups. However, he could not comment upon the medication for depression to be also a risk factor for heart diseases or not. Further to another suggestion, he had stated that he could not say if edema and congestion of lungs were non specific signs which might be seen in death due to asphyxia, poisoning, head injury, cardiac failure etc. Petechiae was stated to be a non specific sign for asphyxia. No histological test was stated to have been conducted on the FIR No: 219/2017 Page 77 of 158 heart of the deceased to confirm as to whether he had died due to sudden cardiac arrest or to ascertain the time of his death.
He had refused to comment upon the colour and duration of the injuries as appeared in the photograph of the deceased shown to him even after examining the medical literature written by Dr. R. K. Sharma and further stated that he could only say that there was no mention of colour of bruises in the postmortem report.
He had denied the suggestion that his opinion as head of the medical board regarding cause of death was defective, incorrect, presumptive and wrong or that the findings of the board were contrary to the established medical jurisprudence and were given under pressure from the family of deceased as well as IO to suit a purely speculative theory put up by the prosecution. It was also denied by him that basic tests to ascertain the actual cause of death of deceased were not conducted and the findings of board were given in a hurried manner. It was further stated by him that in a routine manner, they did not preserve the bodies for 2-3 days for further tests and examination unless a specific request was made in this regard by the IO. He had shown his disagreement to a suggestion put to him that the findings given in the PM Report regarding closed eyes and mouth closed, bluish discolouration of lips, nostril and ears showing no findings, tongue not protruding, orifises again showing no findings, was a pointer to the fact that the death was immediate.
FIR No: 219/2017 Page 78 of 158As per medical literature, the condition of food found present in the stomach was stated to have depended upon the type of food consumed and also the condition of the person at that moment. Generally, vegetarian food was stated to be digested within about 2 to 3 hours and non-veg food might have taken 3-4 hours. To a specific suggestion put to him regarding presence of 700 ml of greyish colour fluid and partially digested food as was found in the stomach of deceased, he had stated that if it would have been a vegetarian food, the person could have died within 3 hours of its consumption and the opinion given by the Board regarding variation of 2 - 3 hours on either side of 12 hours as mentioned in their report dated 16.11.2017 was an academic answer in response to the query/letter of the IO, which as per his opinion, the question asked was not related to the case but question was asked by the IO was in relation to the present case alone. Formal suggestions were denied by him as wrong and incorrect.
In his cross-examination conducted by Sh. M. C. Kashyap, Ld. Counsel for accused Pritam Saini, he had deposed that his department followed the procedure mentioned in the standard textbooks of Forensic Medicines, however, he could not remember any circular being issued in that regard and in his department, they used to give PM Report within 1-2 days unless there was some specific ground for delaying the same and had there been any specific reason for delaying the report, it was conveyed to the IO and to HOD or consultant in-charge and FIR No: 219/2017 Page 79 of 158 approval of HOD was also taken to keep the opinion on PM report pending, which approval was usually verbal in nature. Postmortem record was stated to have been maintained by the department in respect of each case and even the file of this case was also maintained in their department, which could have been produced by him in the Court, if so required. HOD used to constitute the Board on the request of the IO as was done in the present case, to answer the queries of the IO by giving the opinion on the cause of death.
Ld. Counsels representing the other accused Tazim Khan had adopted the same cross-examination.
PW 5 Sh. Bhim Singh, S/o Sh. Chuyan Singh Patwal, aged about 52 years, r/o H-213, Sector-4, DDA Janta Flats, near Rithala Metro Station. Rohini, was the domestic servant cum driver of accused Nitin Sabharwal, who had deposed that he had shifted to his current given address only one month ago, prior to which, he was residing in the servant quarter of house number B -439 NFC belonging to accused Nitin Sabharwal only.
On 04.07.2017, he was stated to have come back after taking a round with the pet dog of accused at around 07:30 PM, when deceased met him at the main gate of the house. He had greeted the deceased, who came in the bedroom of accused Nitin at the ground floor, where accused Nitin and Tazim were already sitting. Accused Tazim was stated to be sitting on the FIR No: 219/2017 Page 80 of 158 bedding put on the floor whereas accused Nitin was sitting on chair and deceased had also sat on the corner of the bed and told this witness that he would take red wine, which he had brought one day ago from his house. He also demanded a glass of wine, whereas other accused persons demanded beer. This witness served them drinks as well as namkeen and deceased had also told him to put the beer bottles in fridge, which were to be brought by his driver who was also asked by him to get the food. Accused Sonu @ Pritam was stated to have come around 08:00 PM and also joined all of them. However, he had refused to take any drink being Tuesday and had taken only fruits and vegetable soup. Balam i.e. driver of deceased was stated to have arrived there with beer bottles which were kept in fridge. All of them kept on eating and drinking and after some time, Balam had also brought food. Two more beer bottles were served by him to accuse Nitin and Tazim. Thereafter, deceased had also demanded one hot ceramic plate which was supplied to him by this witness and he came out of the room thereafter, the food brought by Balam was packed in a packet of "Friend's Club". Deceased had asked for Paneer tikka and was accordingly served with the same. Thereafter, he had also served them food including Shami kebabs. Accused persons had closed the door and played music. Thereafter, he again went inside the room on hearing the call and picked the utensils. The ceramic plate was found broken and was cleared by him. At that time, he had also seen accused Tazim torning the vest of deceased Hemant, who was stated to be under influence of liquor. Tazim had also demanded honey from him FIR No: 219/2017 Page 81 of 158 twice and he had served him the honey and also removed the remaining utensils. Thereafter, he again heard a call at call bell at 10:30 PM and when he went inside the room, he had seen deceased lying on bed and his body covered upto neck with a blanket and was snoring (khur-khur). Accused Nitin told him that they were going out and room should be locked from outside and the keys be kept in the box kept on the round table outside the room.
The main gate of the house used to remain open.
Thereafter, all three accused persons had gone out from the main gate after telling him to go to his room after taking food. After he reached his room, he received a call from Nitin at around 11:28 PM, who told him to sleep in his room as deceased had consumed more/excessive liquor. At 12:10 AM, when he went inside the room deceased was sleeping. He had again heard him snoring and he also slept in one corner of the room whereas deceased continued sleeping on the bedding on the floor. At about 04:36 AM, he had received a call from accused Nitin, who had asked him to check if deceased Hemant was all right or not and he had told him on the phone that deceased was all right. To a specific question put to him as to how he came to know that deceased was all right at that hour, which was also objected by Ld. Defence Counsel as being a leading question and deposition of witness already having come on record in that regard.
FIR No: 219/2017 Page 82 of 158The witness had replied that he had told accused Nitin about well being of deceased while continuing his sleep (Maine soye mai bol diya tha). However, objection as taken by Ld. Defence Counsel was baseless as it does not amount to a leading question and it was a fact which needed to be explained by the witness. Hence the question as raised at that stage is hereby now overruled.
At about 04:40 AM, he got up and removed blanket from his face and noticed that no sound was coming from the deceased side. Thereafter, he switched on the tube light and zero watt bulb and immediately called back accused Nitin and apprised him about this fact. He also immediately rushed towards room of the mother of accused Nitin and knocked her door and told her that no sound was coming from the mouth of deceased. Thereafter, both of them reached back to the room where deceased was lying. His phone was still on. Mother of Nitin talked to her son and told him to come back immediately and accordingly, accused Nitin reached back within 10 minutes and went to his room where deceased was lying. There was no movement observed in the body of deceased. Thereafter, accused Nitin had told him to call Panchu and Yashoda and Panchu after checking the deceased had told them that he was no more. In the meantime, accused Tazim had also reached there. Ram, who was driver of Nitin was called by him who also arrived there and accused Tazim had taken one scissor from the kitchen and had cut the vest of deceased Hamant, which he was wearing and FIR No: 219/2017 Page 83 of 158 removed it from his body and threw it in the dustbin. Balam, the driver of deceased Hemant was also called at the instance of accused Nitin, who had also informed police at 100 number, after which police arrived at the spot. The relatives of deceased Hemant had also reached there and ambulance also came at around 10.15-10:30 A.M. and removed the body of deceased to hospital.
Accused Nitin had told Panchu to pack the bedding and to keep it in Fortuner vehicle and thereafter, it was thrown in the dustbin by Panchu and Ram at some other place. This witness was told by accused Nitin to clean the room and accordingly he had cleaned the room as per instructions of accused. His statement Ex. PW5/A was recorded by police during the course of inquiry and his statement under section 164 CrPC was also got recorded during investigation before the Ld. MM which was Ex.PW5/B. He had correctly identified all the accused persons in the court.
During his cross-examination conducted by Ld. Counsel on behalf of accused Nitin Sabharwal, he had deposed that earlier he was not aware that deceased was a good friend of accused Nitin. There was stated to be a party in the house of accused Nitin, in October 2016, where deceased Hemant had also come and thereafter he started coming to the house regularly and was known to him since then. He had admitted that deceased had also come to the house on 03.07.2017 and had stayed overnight.
FIR No: 219/2017 Page 84 of 158He had also brought one bottle of red wine on that day but had consumed whiskey and music was also played. Since the door of room was closed, so the witness could not notice as to whether he had also danced on that day or not.
The clothes of deceased were found in the dustbin on 03.07.2017, but he had no knowledge as to whose clothes were later on worn by deceased when he left the house next morning i.e. 04.07.2017. He had further no knowledge, if deceased had worn the clothes of accused Nitin on 04.07.2017. He was stated to have been called by the crime branch in its office after one month of the incident where his statement was recorded by the police twice. However, he had not visited PS New Friends Colony. He had not told crime branch that in the morning of 04.07.2017, he had seen torn clothes of Hemant including his t-shirt and pajama, which were lying in dustbin of kitchen and when he had asked the accused Nitin about same, he was informed that same were deceased's clothes, which got torn last evening and hence deceased had borrowed his clothes (Nitin's clothes) before leaving. He was also confronted in this regard with his statement Ex. PW5/DA, where it was found so recorded. It was also stated by him that he had told the police about having seen Tazim torning the vest of deceased Hemant but further volunteered that accused Nitin had directed him not to tell this fact to police. He was stated to have been called number of times at the office of Crime branch during the course of inquiry FIR No: 219/2017 Page 85 of 158 for four months but he could not recollect the exact number of his visits to office of Crime branch.
He had denied the suggestion that he was slapped by police and was directed to remove his belt and to narrate the incidents otherwise he would be sent to jail. He was also produced before one judge in between July 2017 and February 2018 by the police, where his statement was recorded by the judge. He was also stated to have been made to sit in the office of Crime Branch from morning till evening as enquiries were going on and the Crime Branch officials also used to enquire from him about the incident. However, he had not told at any forum that Nitin had asked him not to disclose the fact that Tazim had torn the vest of deceased Hemant.
A suggestion put to him that he had introduced this fact on the date of his deposition only was denied by him as wrong and incorrect. He had further denied that he was tutored by the IO to testify against the accused persons or that he had made substantial improvements in his statement before the Ld. MM at the instance of IO to suit the case of prosecution or that he had made that statement under compulsion from the police.
It was though admitted by him that on 05.07.2017, police person had arrived at the spot but he could not recollect their exact number. Police officials had gone inside the room where dead body was lying. However, he had not seen if relatives FIR No: 219/2017 Page 86 of 158 of deceased had also gone inside that room in his presence as he was in the kitchen serving water and had no knowledge whether police had visited any other room of the house or not. Police was stated to be not present when the bedding of deceased was packed by Panchu. He had not told anything to the police, but had voluntarily stated that he had told accused Nitin that he would tell the police about removal of bedding from the room and denied the suggestion that he had introduced the said fact to falsely frame the accused in the present case, at the instance of IO. It was admitted by him that he, along with deceased Hamant was inside the room and no other person was present there between 12.00 night till 04:40 AM. Accused Nitin and others had left the house at around 11:10 PM, after leaving deceased in the room. He had also mentioned about his mobile number being 9871843288 and number of accused was 9810055499 from which he had also received a call on his mobile and told him that deceased was all right. However, he had no knowledge about accused Nitin having called the ambulance in the morning and further he had no knowledge as to whether relatives of deceased had also met police or not. But it was admitted by him that relatives of the deceased as well as police had arrived in the morning at around 07.00-07.30 AM.
In his further cross-examination recorded in the post lunch session of the same day, he was stated to have not told the Ld. MM that he had been instructed by accused Nitin that he should not have disclosed about accused Tazim having torned the FIR No: 219/2017 Page 87 of 158 vest of deceased. Nor he had filed any complaint against accused Nitin before any forum regarding his telling him to divulge the facts of this case. He had no knowledge, if he had told the Magistrate about deceased's snoring and was also confronted with portion A to A of his statement Ex. PW5/B, where it was found so recorded. He could not remember if accused Nitin himself had called the police and was further confronted with portion B to B, where it was found so recorded. Similarly, he was also confronted with portion C to C regarding accused Nitin having called the ambulance and police but he had denied having any knowledge about this fact before the court.
Police was stated to have also seized bottle lying in the terrace of the house but had not seized anything from the room in which dead body of deceased was lying, in his presence. Police had not asked anybody in his presence not to touch anything in the room, where dead body was lying. He could not recollect whether the dead body was lifted by persons from the ambulance or by the police officials or by anyone else, however, same was lifted in the presence of police officials only. Police had not sealed the room where dead body was lying nor had even asked him to leave the room or kitchen as they wanted to search the same. He had no knowledge, if Police officials had asked any family members about leaving the place. Site plan was not prepared by police in his presence and he could not remember the duration of time for which police officials had remained present in the house on 05.07.2017. Similarly, he could not recollect, if FIR No: 219/2017 Page 88 of 158 dead body of deceased was taken at 11.00 AM by police and was again confronted with portion D to D of his statement Ex. PW5/DA, where it was found so recorded. Police was stated to have remained in the house for about 4 ½ hours but he did not know if they had called anyone from the neighbourhood or not. Somebody had also clicked the photographs but he did not know whether he was a police official or not. However, no dog Squad was brought at the spot, nor his fingerprints were taken by the police. He did not know the area of house from where photographs were taken. The police had not seized any article from the house or room in his presence. His wife was also stated to be residing with him in the servant quarter. However, he had no knowledge, if police had also recorded her statement on 05.07.2017 or not but it was admitted further that she was called at the office of Crime Branch and both of them were also subjected to lie detection Test after sending accused Nitin to Jail.
He had denied the suggestion that he along with his wife was a prime suspect and that is why, he was repeatedly called for investigation and also made to undergo Lie Detector Test or that he had made a tailored statement before the Ld. MM at the instance of IO to suit the story of the prosecution. It was also denied by him that he had introduced new facts in his statement recorded before the Ld. MM. He was stated to have left the servant quarter as well as job of the accused Nitin Sabharwal in September, 2018. He had denied the suggestion that he had FIR No: 219/2017 Page 89 of 158 been won over by the complainant and that is why, he was deposing falsely against the accused persons.
In his further cross-examination conducted by Ld. Counsel for accused Tazim Khan, he had deposed that accused Tazim was also present at the spot on 03.07.2017. He was stated to have seen deceased Hemant in the company of accused Nitin and Tazim on number of occasions prior to the date of incident. He was stated to be in the employment of accused Nitin in his house since 1995-96. He had denied the suggestion that accused Tazim had never asked for the scissors nor had cut the vest of deceased or put it in the dustbin.
In his further cross-examination conducted on behalf of accused Sonu @ Pritam Saini, he had stated that he had not met the said accused prior to date of incident but had seen him in the house for about last one month and his employer had told him not to disclose the name of accused Sonu @ Pritam to anyone. He had denied the suggestion that he had disclosed the name of Pritam @ Sonu at the instance of police and complainant.
PW8 is Sh. Balwant @ Balam, s/o Late Sh. Bir Singh, aged about 39 years, r/o C-684, New Friends Colony, New Delhi, he was stated to be knowing deceased as he was working as Clerk with his father namely Sh. Randhir Chawla, after whose death, he started working with deceased as driver.
FIR No: 219/2017 Page 90 of 158On 04.07.2017, in the evening at about 06:00- 06:30 pm, deceased came down stairs from his flat and asked him to take him to Gym Khana Club. They proceeded towards Gym Khana Club in a car driven by him and when they reached the Gumbad of Nizamuddin and he was supposed to take left turn, deceased had asked him not to take a left turn and to drive the vehicle straight as there was lesser traffic on the way as told by him. When they reached near Hotel Taj Maan Singh at Prithviraj Road, deceased told him that he had received a call from accused Nitin, who had asked him to reach his house at B-439, New Friends Colony. Accused was already known to him since 24.12.2016 as he had attended the birthday party of deceased. On 03.07.2017 as well, he had taken the deceased to the house of accused, when he was also asked by deceased to bring red wine and accordingly he had brought the same and handed over to Bhim Singh, who was stated to be working in the house of accused Nitin Sabharwal. Deceased had stayed in the house of accused Nitin overnight. When he had gone to deliver the red wine bottle to deceased on 03.07.2017, he was also asked by deceased to bring beer bottles for Nitin Sabharwal and accordingly he had also brought beer bottles and had given the same to Bhim Singh. He had also delivered some food on that night at the house of Nitin on directions of deceased, which he had brought from his house and thereafter he returned to his home. In the next morning, i.e. on 04.07.2017, he had gone to the house of accused Nitin to bring back deceased after receiving his call at about 09:45 AM and after returning home, deceased had FIR No: 219/2017 Page 91 of 158 gone to his bedroom and slept there and woke up at around 02:30 P.M, when he ate his food and came downstairs at 06:30 PM. On 04.07.2017, deceased after attending the call had asked him to take him to the house of accused Nitin and when he questioned the deceased about earlier going towards Gym Khana club and thereafter cancelling the trip, he was told by him that he had been informed by accused Nitin Sabharwal that Bhim Singh, who was his servant had suffered a heart attack and thus from there, they straight away went to his house.
In his further examination-in-chief recorded on 18.12.2018, he had further deposed that after getting down from the car at the house of accused Nitin, deceased had gone inside and he himself had also gone inside and saw Bhim Singh at the main gate of the house walking towards the main entrance along with a dog. Since he was just following deceased, he had heard him enquiring about the health of Bhim Singh, to which Bhim Singh had replied that he was alright. Deceased had also told Bhim Singh that he was informed by Nitin that he had suffered a heart attack to which Bhim Singh had replied that nothing of such type had happened and he had only suffered loose motions. They were stated to have reached at the house of Nitin Sabarwal at about 07:30 PM after which he was asked by deceased to bring beer for accused Nitin. He had gone to bring the same and had handed over the same to Bhim Singh and thereafter returned to the house of deceased. Thereafter, he had received a call from deceased about ordering food from Friend's Club and asked him FIR No: 219/2017 Page 92 of 158 to pick up the order and to deliver the same at the house of Nitin. He had told deceased that he was not having any money to pay for the order to which he had told him to go there and sign on his behalf and bring the food and they would hand over him the packet. Accordingly, he had gone to Friend's Club and picked up the food and delivered the same at the house of accused Nitin to Bhim Singh at around 09.15 PM. After delivering the food, he had also tried to inform deceased over the phone but he did not pick up the call. At that time, he had also heard the sound of loud music being played in the room adjacent to the kitchen from which the dead body of the deceased was later on recovered. Thereafter, this witness returned to the house of deceased, where he was residing and later on received a call from deceased, who had enquired about his call to which he had replied that he had made the call to inform him about the delivery of food. After waiting for deceased for sometime, he had gone to sleep. Next day in the morning, at about 05.30-05.45 AM, the security guard of deceased knocked the main door of the house and told him that driver of Nitin Sabharwal had come to take him to bring the deceased back home. Then he came out and saw Ram Bachan, driver of accused Nitin Sabharwal was standing at the main gate of the house of deceased. When this witness asked Ram Bachan to have dropped the deceased in his car, he did not give any reply and asked him to come on his motorcycle. Thereafter, they had gone to the house of accused Nitin in a car and when he reached outside the house, he made a call from his mobile phone to the phone of deceased, which was answered by accused Nitin FIR No: 219/2017 Page 93 of 158 Sabharwal and witness had asked him to come out but accused Nitin told him to come inside the house. Thereafter, he disconnected the call. He went inside the house, in the meanwhile accused Nitin also came outside and met him at the entrance gate, where he was told by Nitin Sabarwal about demise of deceased (tere sahaib to chale gaye). When he asked him as to where his employer had gone, to which accused Nitin had replied about his being dead ("mar gaye"). Thereafter, he again asked accused Nitin as to where was Hemant Chawla, then the accused took him to one room of his house where he had seen deceased was lying on the floor of the room and his body was covered with blanket upto his neck and there was a pillow under his neck. He moved his hand around his nose but he could not notice any breath. The stomach of deceased was lying swollen at that time which was visible. He immediately made a call to Ms. Neena Chawla, mother of deceased on her mobile phone who was stated to be in London and was in a dilemma as to how to inform her about the death of her son, hence, he had asked her to give the phone to Shivani Ahluwalia her daughter, however, she was not available, so her husband took up the phone, to whom he had informed about the death of deceased. He asked this witness to call Ambulance immediately and he further asked him about his location to which he had replied that he was present at the house of accused Nitin Sabarwal and on the directions of husband of daughter of Nina Chawla, he had handed over the phone to Nitin Sabharwal and they had spoken to each other, when he heard accused Nitin Sabharwal telling on phone that he had tried to FIR No: 219/2017 Page 94 of 158 give mouth to mouth resuscitation after which he had also asked to call ambulance. Thereafter, accused Nitin Sabarwal made a call for ambulance telling them about death ("mar gaya hai"). Thereafter, the caller told Nitin Sabharwal to call police instead of calling ambulance when the person had already expired. Thereafter, Nitin Sabharwal had disconnected the phone and asked him about where to call police. Then he told Nitin to call at 100 number. This entire conversation had taken place while they were standing on the driveway of the house. Thereafter, he also received a call from Mandeep Ahluwalia, who is the husband of Ms. Shivani Ahluwalia, who had asked him to bring Aman Vadhera from A-9, New Friends Colony, who was cousin brother of deceased and accordingly, he had gone to bring Aman Vadhera and returned back with Aman Vadhera and his wife Ruchi Vadhera. In the meantime, police had also reached there. Accused Nitin had asked him to take out the golden bangle (kara) from the hands of deceased but he had told accused Nitin that he would not touch the body or remove the said bangle (kara). Many other persons had also gathered there. Forensic persons had also reached there for taking the photographs. By that time, his statement had already been recorded and in his statement one line was written by police "Maut heart attack se pratit hoti hai " which was never told by him to them. Police had enquired, if he was illiterate, then he had told them that he was literate. He had also gone through his statement recorded by the police and found the above line regarding the death of Hemant Chawla by heart attack being incorrect and not stated by him. However, the police FIR No: 219/2017 Page 95 of 158 official perhaps, one Darpan Singh started shouting on him like shall I take to hospital (le chalu hospital- le chalu hospital). Thereafter, he was made to sign the said statement. He had also placed on record the said statement as Ex.PW8/A, bearing his signatures at point- A, where it was written from point A to A "jinki maut heart attack se honi pratit hoti hai " which was never so stated by him and was incorrectly recorded by the police but despite that, he was made to sign the same under duress and pressure. Thereafter, he had gone inside the room, where dead body of deceased was found lying and he had noticed that buttons of the shirt of deceased were unevenly buttoned (upar niche kar rakhe the). There was no t-shirt on his body, which he always used to wear under his shirt. Deceased had never buttoned his shirt and used to keep it open. There were socks on his feet however, he had never worn socks. Thereafter, he came out. He was having cordial relations with deceased as he had never harassed anyone. His statement was also recorded by the police at NFC and later on at the office of Crime Branch at R. K. Puram, New Delhi. When they had left for Gym Khana Club on 04.07.2017, deceased was stated to be wearing dark grey colour lower (paijma), dark grey colour t-shirt, blue colour printed shirt and black shoes.
In his cross-examination conducted by Ld. Counsel for the accused Nitin Sabharwal, he was stated to be working with the family of deceased since 1995, however, he had left the job in year 2002 and again resumed his work there in the year FIR No: 219/2017 Page 96 of 158 2013 till the date of his deposition. He was not having any house of his own and used to stay in the house of deceased. He was stated to have visited PS New Friends Colony only once after 05.07.2017, where his statement was recorded. However, he had not made any complaint against the police officials regarding his claim as made during his examination-in-chief about Ex.PW8/A from point-A to A being wrongly recorded. His statement was stated to have been probably recorded by the Crime Branch on 05.08.2017, who were different police officials then the ones who had visited the spot on 05.07.2017. He had told the Crime Branch officials about addition having been made by local police in his statement Ex PW8/A, however, when he was confronted with his statement Ex.PW8/DA, no such fact was found recorded there.
He had denied the suggestion that he had deliberately introduced the said fact for the first time during his deposition before the court to suit the case of prosecution or that he was a trained or tutored witness of the complainant and IO. It was also denied by him that the facts mentioned in Ex. PW8/A were stated by him voluntarily. After going through Ex. PW8/DA, he had admitted the fact that he had not mentioned about the fact in his statement that blanket covered the body of deceased upto his neck was removed by him or by anybody else and had denied the suggestion that he had made false statement during his examination-in-chief regarding uneven buttoning of the shirt of deceased Hemant and about absence of his T-shirt underneath his shirt. It was also denied by him that all the claims FIR No: 219/2017 Page 97 of 158 made by him during his examination-in-chief were falsified and contradictory. Other suggestions were denied by him as wrong and incorrect. However, it was admitted by him that deceased used to frequently visit the house of accused Nitin Sabharwal being his friend and had further volunteered that he had never stayed at the house of accused in the night except for 03.07.2017 and 04.07.2017. Though he had claimed to have told the police that while driving towards Gym Khana Club, his employer had received a call from accused Nitin that his servant had suffered a heart attack. However, no such fact was found recorded in his statement Ex. PW8/DA.
In his further cross-examination conducted on 11.03.2019, he had stated that he had not come across any police official when he reached at the house of accused Nitin in the morning of 05.07.2017. He was stated to have called up the deceased on his mobile which was picked up by accused Nitin. However, this fact was not disclosed by him to the police on the same day and he had no knowledge if police had seized the CDR of number of deceased or not.
A suggestion put to him regarding adding a new fact during his deposition was denied by him as incorrect. However, when he was confronted with his statement Ex. PW8/DA, no such fact was found recorded therein. Initially, two police officials had reached at the spot after accused Nitin Sabharwal had called police at his instance. However, he did not know if the FIR No: 219/2017 Page 98 of 158 said police officials were from PCR or local police station. He was stated to have reached the spot at around 05.45- 06.00 AM and had stayed there for about 15 minutes, after which he had left the spot to bring Aman and Ruchi Vadhera, who were stated to be close relatives of deceased. However, after bringing those persons, he had not gone inside the house and remained outside on the road itself. He had also brought one other relative of deceased, namely Renu Sehgal. SHO was stated to have reached the spot in his Gypsy in plain clothes. However, he did not know the number of police officials accompanying him and he had walked inside only when he was called by someone, otherwise, he had remained outside the house. The body of deceased was also picked up by SHO along with other police officials and kept in an ambulance for taking him to hospital and he along with relatives of deceased had followed the said ambulance on his way to hospital at about 10.30-11.00 AM. However, he could not tell the number of police officials who had remained at the spot or had visited there in his absence after he had left for the hospital. At the time when he was waiting at the spot, photographer had also reached there along with some other police officials, but he could not tell if they were from Crime Branch or Forensic Department, nor he was aware of the nature of search and investigation conducted by those police officials at the spot. Statements of Ruchi and Aman were also stated to have been recorded in his presence. However, he had not disclosed any of the facts deposed during his examination-in-chief pertaining to the events of 04.07.2017 and 05.07.2017, either to Aman or FIR No: 219/2017 Page 99 of 158 Ruchi or Renu Sahgal. He had denied the suggestion that he had manufactured or fabricated wrong facts in his testimony regarding the incidents and events of the said date to falsely implicate accused Nitin.
He was further confronted with his statement Ex. PW8/DA regarding his having called the deceased on his phone which was not picked up by him at the time of delivering of food to Bhim Singh. However, this fact was also not found mentioned therein, but he had denied the suggestion that this fact was introduced by him later on only to falsely implicate the accused persons. Similarly, he was also confronted regarding his deposition of having received a call from deceased for which again he was confronted. Similarly, he was confronted with his other portions of deposition before the court with his statement Ex. PW8/DA and it was found that none of such depositions find their mention in his statement recorded by police.
The mother of deceased, namely Smt. Neena Chawla was stated to have arrived from London on 05.07.2017 in the evening and he himself had gone to airport to pick her but had never taken her to PS nor she had ever asked him to take her to PS. Ruchi and Aman Vadhera were stated to have stayed at the house of deceased on the said day and might have met Neena. However, he did not know when they had visited the police station for the first time. Dead body of deceased was stated to have been received by them in the evening of 06.07.2017, but his FIR No: 219/2017 Page 100 of 158 mother was not present there at that point of time. He was stated to have remained employed with Chawla family even after 05.07.2017 and police had also arrived at their house only once in his presence after 05.07.2017. He had no knowledge about deceased having consumed food brought from the Club on 03.07.2017 and had further volunteered that he had taken homemade chicken which was delivered by him at the house of accused Nitin. Deceased was stated to have stayed overnight at the house of accused Nitin on 03.07.2017 only and lastly, he had denied the suggestion that he had deposed falsely during his examination-in-chief by introducing new facts to implicate the accused persons falsely in this case being an employee with the mother of deceased.
He was not cross-examined by the Ld. Counsel representing other accused persons.
PW 19 is SI Darpan Singh, who was the first police official to have visited the spot and had deposed that on 05.07.2017, he was posted as SI at PS New Friends Colony, when upon receipt of DD No. 7A, at about 06:20 AM, regarding death of a person at house number B-439 NFC, he along with Ct. Madan had reached at the spot, where in one of the rooms at ground floor, body of a person was lying on the floor in unconscious condition whose identity was disclosed as Hemant Chawla. Several distant relatives and friends of deceased and accused Nitin Sabharwal were also present at the spot along with FIR No: 219/2017 Page 101 of 158 one Balwant Singh, S. Panchu, Bhim Singh, accused Md. Tazim, Aman Vadhera, Ruchi Vadhera, Renu Sehgal and others were stated to be present there along with accused Nitin. During enquiries, he came to know that deceased had come to the spot in the evening of 04.07.2017 with his driver Balwant Singh at about 06.30 PM and at about 09.30 PM, he had ordered food from New Friends Club through his driver Balwant Singh. He also came to know that at about 10:30 PM, deceased had consumed liquor with Nitin Sabharwal and Mohd. Tazim, who had beers and at about 11.00 PM, deceased had his dinner and went to sleep at about 11:30 PM, after which accused Nitin Sabhawal and Tazim went outside in their car and returned at about 04:15 A.M, when they had noticed that deceased was lying on the floor with his body being cold and thereafter, they had intimated this fact to his relatives and friends telephonically and also to their servants. The witness had also checked the body of deceased who was appearing to be dead as his body was lying cold. However, he had not noticed any mark of any external injury on his body. He had also enquired and recorded the statements of the persons present there which were Ex. PW19/A to Ex. PW19/D and Ex. PW8/A respectively bearing his signatures at point 'X'.
However, the exhibition of statements of accused Nitin and Md. Tazim by the Ld. Defence Counsel was objected to on the ground that contents of the said statements could not be exhibited. I failed to understand as to why this objection was taken because at the time when those statements were recorded, FIR No: 219/2017 Page 102 of 158 no one was suspected in this case. Hence, I do not find any force in this objection.
Upon further enquiry about blood relatives of deceased, he came to know that his mother, sister and brother-in- law were in London. Thereafter, all the facts were disclosed by him to SHO and he had also requested him to arrange and send Crime Team at the spot. During inspection, he also found one empty bottle of Sula wine lying in the room in which body of deceased was found. Then, SHO Inspector Sushil along with other staff also reached the spot and someone from the crowd had made a video call to the mother of deceased to whom he had also spoken and he was directed by her, that after getting the postmortem of deceased conducted, his body should have been handed over to her friend Renu Sehgal. After some time, Renu Sahgal also handed over him printout of an email sent by Ms. Neena Chawla regarding her authorization to receive dead body of Hamant on her behalf. In the meantime, Crime Team was also stated to have arrived, who had inspected the spot and had taken photographs of the room and body and after preparing their report, same was handed over to him. He had seized the wine bottle lying in the room vide memo Ex. PW19/E and got the body shifted to AIIMS Hospital through Ct. Madan, where Hamant was declared brought dead. Thereafter, he also got conducted postmortem of deceased vide request letter already Ex. PW1/A, bearing his signatures at point B and also filled form number 25.35 (1) (b) Ex. PW 19/F and also got the body FIR No: 219/2017 Page 103 of 158 identified through one Ms. Gita Rajpal and Ms. Renu Sehgal vide memos Ex. PW19/G and Ex. PW19/H respectively. All bearing his signatures at point 'A'. After conducting postmortem, the body was handed over to Ms. Renu Sehgal.
On 06.07.2017, he had again examined and recorded the statements of accused Nitin Sabharwal, S. Pancho and Bhim Singh, which were already Ex. PW19/I, Ex. PW4/A and Ex. PW5/A respectively.
Again this exhibition was objected to by Ld. Defence Counsel, however, no basis was cited.
On 12.07.2017, he had examined Neena Chawla, Timpi Sabharwal and Mohd. Tazim and recorded their statements Ex. PW9/B, Ex. PW19/J and Ex. PW19/K respectively all bearing his signatures at point X. On 14.07.2017, HC Ramphal was stated to have brought the postmortem report from AIIMS Hospital and had handed over the same to him. Ct. Madan Singh was also stated to have handed over him sealed viscera of deceased along with sample seal of Department of Forensic Medicine AIIMS on 05.07.2017 itself, which was seized by him vide memo Ex. PW19/L. On 17.07.2017, the said viscera was sent by him to FSL, Rohini through Ct. Harichand for its examination. On 19.07.2017, Smt. Neena Chawla, mother of deceased was stated to have visited the police station along with a complaint and handed over the same to SHO Sushil Kumar, FIR No: 219/2017 Page 104 of 158 who had endorsed the same, prepared tehrir and got the present case registered. Thereafter, he along with IO reached the spot where IO had prepared site plan at his instance Ex. PW19/M and then they returned to PS where they met Mandeep Ahluwalia, who had handed over them one black color mobile phone of deceased which was seized by IO vide memo Ex. PW16/A bearing his signatures at point B. IO had also recorded his statement along with that of Mandeep Ahluwalia. On 15.01.2018, he was stated to have joined the investigation of this case again at the request of IO Inspector Ishwar Singh along with Inspector Mahesh and other staff and had reached the spot where at his instance, the measurements of the spot were taken by Inspector Mahesh. IO had also recorded his statement in that regard. He had also identified the case property as Ex. PW19/X (sula wine bottle) and Apple iPhone having Airtel SIM card belonging to deceased as Ex. PW19/Y. In his cross-examination conducted by Ld. Defence Counsel for accused Nitin Sabharwal on 07.09.2019, he was stated to have reached the spot first after receiving the information from the Duty Officer and after his arrival, SHO had also reached there along with other staff who were stated to be about 6 in number. Though crime team had tried to pick some fingerprints from the room, where body of deceased was lying but no chance print was found. The door of the room where deceased was lying was found open at the time when he had reached there and many persons were already present, when he FIR No: 219/2017 Page 105 of 158 had reached the spot. However, he did not know if Sh. Aman Vadhera and his wife Ruchi Vadhera were known to deceased or his family or not, but he had examined both of them and had also recorded their statements. It was admitted by him that both the said persons had stated that death of Hamant Chawla had occurred due to a heart attack/natural death and there was nothing suspicious about it and they did not want any legal action to be taken in this matter. It was also admitted by him that the said persons had also disclosed to him that they had reached the spot after receiving a phone call from Mandeep Ahluwalia i.e. brother-in-law of deceased. The team comprising of 5-6 police officials had conducted the inspection of the room as well as adjoining area. It was also admitted by him that he himself had recorded the statements of the persons in his own handwriting and it was mentioned in the 2nd line of Ex. PW19/A that deceased was cousin of Aman Vadhera. It was also admitted by him that when he had entered inside the room where dead body was lying, nothing was found disturbed (koi uthal puthal nahi payi gayi ). The deceased was stated to be lying on a mattress on the floor with a pillow beneath his head. He himself had touched the body of the deceased to ascertain whether he was alive or not and it was further admitted that he had found the body to be cold and hence arrived at the conclusion that he was already dead. It was further admitted by him that upon examination of deceased, he could not find any external injury on his body. Deceased was stated to be a healthy person having a belly. However, he could not remember, if the attendants of the ambulance had entered FIR No: 219/2017 Page 106 of 158 inside the room where dead body was lying or not. However, the dead body was lifted by many persons but he could not tell their exact number. He had not noticed if any extra efforts were also put in to lift the dead body due to its heavy weight and he had not seen when the said body was taken out from the room and was kept in the ambulance as he was busy in conducting other proceedings. He could not even tell whether any stretcher was used or not. The room was not sealed after taking out the dead body nor the mattresses or pillows were taken into possession and it was further volunteered by him that only the wine bottle was taken. No police official was left in the room to keep a watch after removal of dead body to hospital. It was further admitted by him that even SDM was not called as nothing unusual was found by him at the spot and he had also written in inquest papers that deceased had died due to cardiac attack and it was a natural death. About 20-25 persons were stated to be present at the spot, at the time of his arrival. He had also met mother of accused Nitin Sabharwal and 4-5 servants in his house and had recorded their statements. However, statement of mother of Nitin was not recorded on that day as there was no suspicion and her statement was recorded later on. All the servants were present in the house in the intervening of night of 04/05.07.2017 and nothing suspicious was found in their statements as well. He was stated to have met doctors only once between 04.07.2017 to 14.07.2017, when PM report was received by him. The cause of death was told to him as suspicious during the course of his discussion with the doctor, however, it was kept pending. SHO FIR No: 219/2017 Page 107 of 158 had also advised him to wait for the opinion regarding cause of death and thus he had not registered any case on the same day itself. He had no knowledge as at whose instance, the investigation of this case was transferred to Crime Branch. However, Crime Branch had made enquiries from him on 15.01.2018 but he was not aware if accused were in custody on that day or not. He was stated to have remained associated with the investigation of this case on 19.07.2017 and had approximately met mother of deceased 2-3 times. He had recorded the statement of mother of deceased. However, though enquiries were also made by him from sister and brother-in-law of deceased but their statements were not recorded by him.
He had denied the suggestion that all the relatives of deceased were pressurizing him and SHO to register a case. He had also examined accused Nitin and Tazim twice between 05.07.2017-19.07.2017 and it was also admitted by him that accused Nitin remained available at his house during that time and during enquiry, he had already found that accused had gone out of his house in the intervening night of the incident. However, he had not seized the CDR of the said period of accused persons nor he had made any enquiry from any person regarding the locations visited by the accused in the intervening night of the incident nor he had made any queries in this regard from the neighbors. He did not know about total number of floors in the house in question as only Crime Team had taken the photographs of the room and he had no knowledge, if SHO and FIR No: 219/2017 Page 108 of 158 other police officials had inspected the entire house or not. However, it was admitted by him that there was a servant quarter in the house but no search of servant quarter was conducted. He had not called any doctor on the spot to check the deceased. Rather no one had called the doctor in his presence on the spot including Aman and Ruchi. Spot was stated to have been visited by him 3-4 times before registration of FIR but he had inspected the same only twice. No crime team was called by him subsequently for inspection of the spot or to accompany him to the spot. Statements of servants were recorded by him after going to the house. However, no suspicious circumstance was found during the recording of statements by him after 05.07.2017. Senior police officials including DCP were stated to have been duly intimated and informed about the investigation done in the present case. No written instructions were stated to have been received by him from Senior Police Officials to arrest the accused or to register any case.
In his further cross-examination conducted on 13.09.2019, by the Ld. Counsel for the same accused, he was stated to have not prepared any memorandum/note of proceedings which he had conducted at the spot. It was further admitted by him that nowhere, he had mentioned in any of the seizure memos or any of the statements recorded by him at the spot that at the time of his visit, either he or SHO had asked or directed the members of the house, including accused Nitin Sabharwal not to touch any article or to let it remain as it was. He FIR No: 219/2017 Page 109 of 158 had also not asked any of the members of the Crime Team to take photographs of the area outside the room where deceased was found lying. Even the Crime Team itself had also not taken any photographs of any area outside the room. Site plan was stated to have been prepared by SHO in his presence and some of the things mentioned therein were mentioned by this witness to SHO and others were noted by the SHO himself from his own observations. This witness had not checked the pockets of the trousers or the shirt worn by deceased to check if it contained anything or not and further, it was admitted by him that as per the site plan, the dead body was lying on the floor of the room. It was also admitted that they had inspected the drawing room, verandah, kitchen, store and two other rooms and it was only thereafter, that the rough site plan Ex. PW19/M was prepared by the SHO. At the time of their inspection of the house, they had not seized any clothes. After watching the photographs Ex. PA1 to Ex. PA4, witness had replied that there was neither any bedding nor any mattress found near or beneath the deceased, who was lying on a carpet with a blanket lying near him. However, he had not noticed any bloodstains either on the floor or on the pillows on which the deceased was lying. Neither he nor the IO or members of the Crime Team had made any efforts to seize either the blanket, pillows or carpet on which deceased was lying nor he had noticed any portion of the clothes worn by deceased being torn. It was further admitted by him that nowhere he had mentioned that either the shirt or trouser worn by deceased was either torn or any button was found broken. It was FIR No: 219/2017 Page 110 of 158 again admitted by him that he had nowhere mentioned about having personally checked the deceased. However, he could not remember as to whether at the time when he had examined the room where deceased was lying, he found any music system or tape recorder present there or not. However, neither he nor SHO had seized any music player or tape recorder from anywhere in the room nor there was any mention of presence of any dustbin in the site plan and the dustbin was not even seen in the photographs being placed near the body of deceased nor any such dustbin was seized. The room where deceased was lying was stated to be having two doors. However, he could not recollect about the number of windows. He couldn't tell if any scissors, knife or any other instrument was found during the search of the room or adjoining area by him or by any of other team members. It was admitted by him that if anybody had to scream or shout from inside the room where deceased was lying, it would have been easily heard outside the room. However, during investigation nobody had alleged about having heard any screaming or shouting from inside the room. It was further admitted by him that on 05.07.2017, he had recorded the statement of Balam @ Balwant but he was not again examined by him till he remained the Investigation Officer of this case and Balam had also never disclosed to him that accused Nitin Sabharwal had asked Hemant Chawla to come to his house or that deceased was going towards Gym Khana Club. He was stated to have also examined Panchu and Bhim Singh and admitted that word mattress or bedding did not find reflection in FIR No: 219/2017 Page 111 of 158 their statements recorded by him. Crime scene report was stated to have been prepared in his presence.
However, he had denied the suggestions that he had shared the details of PM report with the complainant before registration of FIR. He was stated to be not present at the time of preparation of rukka by the SHO and was present in the PS when FIR was registered but he had not seen the complaint which formed basis of FIR. Smt. Neena Chawla with some other persons was stated to have visited the Police Station to give the complaint but she had never visited Police Station in his presence between 05.07.2017 till 19.07.2017.
Formal suggestions put to him were also denied by him as wrong and incorrect.
The same cross of this witness was adopted by Ld. Counsel for accused Tazim.
During his cross-examination conducted by Ld. Counsel for accused Pritam Saini, the head of deceased was stated to be lying towards East side and the body was cold and lying on the floor with its face towards the ceiling. However, he had not touched the neck of the deceased. No fresh injury was noticed by him on the dead body, the photographs of which were taken at the spot in his presence.
FIR No: 219/2017 Page 112 of 158PW32 is Inspector Sushil Kumar No. D-I 821, RI District Lines, South East District, who was stated to be posted as SHO at PS NFC on 05.07.2017, when at about 07:00 AM, he had received a telephonic call from SI Darpan informing him about a person's death after which he himself had also reached at house number B-439 NFC and found one boy lying dead on the ground floor whose name was revealed to him as Hemant Chawla. Many other persons were also present there. He had made enquiries from Nitin Sabharwal, who was stated to be the owner of the said house and some other persons and also instructed SI Darpan for conducting the inquest proceedings and thereafter left the spot. At that particular point of time, no clue about commission of any murder was found at the spot. On 14.07.2017, postmortem report of deceased was stated to have been received by him and thereafter on 18.07.2017, a complaint was received at Police Station from the mother of deceased which was already Ex. PW9/A. After examining the said complaint as well as postmortem report, on 19.07.2017, he had made an endorsement Ex. PW32/A on the complaint after which the FIR in the present case was registered. After registration of the FIR, he had gone to the spot and on the pointing out of SI Darpan Singh, he prepared site plan Ex. PW19/M bearing his signatures at point B. On the same day, brother-in-law of deceased namely Mandeep Ahluwalia also visited the Police Station and handed over the mobile phone of the deceased to him which was seized by him vide memo Ex. PW16/A bearing his signature at point A. On 21.07.2017, he had visited the office of mobile Crime team and FIR No: 219/2017 Page 113 of 158 collected the negatives of photographs and also recorded the statements of officials of crime team and other witnesses and thereafter investigation of this case was transferred to Crime Branch and hence matter was sent to Crime Branch for further investigation.
During his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, he was stated to have reached the spot at around 07.00 - 07.15 AM. SI Darpan was stated to have called the Crime Team. However, he did not remember the time of arrival of the Crime Team at the spot. He himself was stated to have remained at spot for about half an hour and thereafter left the same. He had also entered inside the room where deceased Hemant Chawla was lying on the floor. However, he could not remember whether any mattresses/ beddings were also lying on the floor or not but there were three pillows beneath the head of deceased Hemant Chawla. However, he had not seized any item lying in the room nor he had called any photographer at that time when he was present at the spot.
It was though admitted by him that some close relatives of deceased had come to the spot and also met him. However, none of those close friends or relatives had visited the room where deceased was lying in his presence. He had not conducted inspection of the whole house and had only visited the room adjoining room of the said house. Personally, he had not recorded statement of any person present at the spot. SI Darpan FIR No: 219/2017 Page 114 of 158 Singh was stated to have conducted the inquest proceedings and had recorded the statements of occupants of the house. During his presence, SI Darpan Singh had also received a call from one of the relative of deceased from abroad regarding handing over of the dead body of deceased after its postmortem but he himself had not spoken to the said relative and only SI Darpan had talked to him. No investigation was stated to have been conducted by him between 05.07.2017 to 19.07.2017 and only SI Darpan had conducted enquiries during the aforesaid period. Similarly, no complaint was received by him in this case between 05.07.2017 till 19.07.2017 from any of the family members of the deceased.
On 05.07.2017, while leaving the spot, he had not asked any police official to seal the room nor he had asked any police official to seize any articles and prepare their seizure memos. It was though admitted by him that when he had entered the room, he did not find anything to suggest that there was any sign of struggle or quarrel having taken place in the room and he himself had also examined the dead body of Hamant but had not called for any medical expert at that point of time.
During his further cross-examination conducted on 21.12.2021, it was admitted by him that in such kind of cases, the proceedings u/s 174 CrPC were mandatory but he had not requested any SDM to visit the spot and conduct such proceedings nor he had prepared any memorandum of the investigation conducted by him regarding the duration of the FIR No: 219/2017 Page 115 of 158 period when he remained present at the spot. It was also admitted by him that he had personally recorded the statements of the witnesses during such time, however (seems the word "not" is missing before the word "recorded" in this suggestion). It was also admitted by him that during the enquiry in relation to the case, Nitin Sabharwal might have been called to join the enquiry conducted by SI Darpan under his supervision. However, after registration of FIR, he had not called accused Nitin for investigation and till such time the matter remained with the police station NFC before its transfer, he had not come across any incriminating material to arrest accused Nitin Sabharwal and he did not know if Nitin Sabharwal was out of the said house between 11.00/11.15 PM till 04.30 AM in the intervening night of 04/.05.07.2017.
A suggestion that he was giving an evasive reply in respect of the said fact was denied by him as wrong as well as the fact that he had come across ample material during his investigation to establish that Nitin Sabharwal was not in the house during the aforesaid period was also denied by him as wrong.
However, it was admitted by him that he had visited the doctor who had conducted the postmortem at AIIMS after the incident on 05.07.2017 only once before registration of FIR. It was though denied by him that he had visited AIIMS postmortem doctor many times after registration of the FIR or that family FIR No: 219/2017 Page 116 of 158 members of the deceased had also accompanied him all those times of his visits to the concerned Doctor. Dead body of deceased was stated to have shifted to hospital after he himself had left the spot, hence, he did not know as to who had called the ambulance and who had lifted the body for the purpose of its shifting to AIIMS. He had not made any enquiries from the driver of deceased while he remained present at the spot. At the time when investigation was handed over by him to Crime Branch, Crime Branch team had not made any enquiries from him. He had never asked accused Nitin to join any lie detection proceedings. He could not remember if any Aman Vadhera or his wife Ruchi Vadhera had also arrived at the spot during his presence or not but he had not recorded any statement of the said individuals when the investigation was pending with him. He had denied the suggestion that he had not conducted the investigation properly as long as it remained with him or that he had not followed the mandatory procedures which were to be followed in such cases by calling the SDM to conduct an enquiry.
During his cross-examination on behalf of accused Pritan Saini, he had deposed that investigation of this case was taken over by him only on 19.07.2017, however, he had not collected the copy of DD entry regarding registration of FIR. SI Darpan was stated to have informed the concerned SDM about the incident. At the time of registration of FIR, he had not conducted any previous proceedings and during his investigation of this case, he had recorded the statements of witnesses on FIR No: 219/2017 Page 117 of 158 19.07.2017 as well as 21.07.2017 and had prepared seizure memo of mobile phone of deceased, which was handed over to him by his brother-in-law but he had not conducted any proceedings to find out the name of service provider and the owner of SIM card nor he had collected the CDR of the said phone. He had not asked about the possession of mobile phone till 19.07.2017 nor about its user. First of all, the case file of this case was stated to have been sent to record and thereafter sent to DCP Crime after transfer of investigation to Crime Branch. However, no DD entry was made by him personally in this regard. It was lastly admitted by him that he had not recorded the statement of any witness who could have been a material witness of last seen or an eyewitness in this case.
During his cross-examination conducted by Ld. Counsel for accused Tazim Khan, he had deposed that when he reached the spot, he found the dead body lying on the floor in straight position with its face in upward position. He had not seen any rope or any suspicious item in the room. He had not visited the kitchen of the house and no suspected person was found by him in the house. Only one empty wine bottle was lying in the room which was seized by SI Darpan Singh and he could not tell if accused Tazim was present at the spot during his stay there or not.
PW33 Inspector Ishwar Singh is second IO of this case, No. DI/544, Special Staff Rohini, who was stated to be FIR No: 219/2017 Page 118 of 158 posted in Crime Branch SER at R.K. Puram on 01.08.2017, when the investigation of the present case was transferred to Crime Branch, after which he had visited the place of occurrence where some persons were found present and cursory enquiries were also made from them after inspection of the spot. On 05.08.2017, four persons had visited his office, who were investigated and he had also recorded their statements under section 161 CrPC. He also collected CDRs of suspects and on 08.08.2017, two suspects, namely Tazim and Nitin Sabharwal were called at the office of Crime Branch and their interrogation was recorded Ex. PW33/A and Ex. PW33/B respectively. After their interrogation, their CDRs were again perused and it was revealed that mobile number of one more suspect, Pritam Saini, and his presence was also found at the spot at the relevant point of time, though his name had not been disclosed by any of the suspects during their interrogation.
On 11.08.2017, accused Pritam Saini was also called for his interrogation, in which he had admitted his presence in the company of deceased and other two suspects, and his interrogation was recorded as Ex. PW33/C. On 12.08.2017, again all the three suspects were examined by him vide interrogation memos Ex. PW33/D and Ex. PW33/E respectively. After comparison of the previous statements and interrogatory statements, he found various inconsistencies and contradictions in the same. Viscera report was collected from FSL, however, since the opinion regarding cause of death of deceased was kept FIR No: 219/2017 Page 119 of 158 pending by the doctor, so on his request, a Board of doctors was constituted at AIIMS and PM report along with viscera report of deceased were sent to the Board of Doctors for their opinion regarding the cause of death. The Board had put some queries and sent back the documents for clarification. The said queries were placed on record as Ex. PW33/F and in accordance with the queries, viscera of deceased was again sent to FSL and its report was collected. Thereafter, the PM report along with both viscera reports, were sent to the Board of Doctors for opinion vide its letter Ex. PW33/G, on which doctors had opined about cause of death being due to manual strangulation, vide their opinion already Ex. PW1/C. A subsequent opinion was also sought by him on 16.11.2017 vide request Ex. PW33/H, which was answered by the board vide Ex. PW1/D. He had also collected PCR form containing first information sent to police at 100 number as well as the call at ambulance vide letter Ex. PW33/J. During investigation, draftsman was also taken by him to the spot, who had taken measurements and prepared scaled site plan. The photographs were also collected by him which were already Ex. PA1 to Ex. PA4 with their negatives Ex. PA5.
On 03.12.2017, accused Tazim Khan and Pritam Saini were arrested by him vide memos already exhibited on record and their personal searches were also conducted and their disclosures were also recorded. Thereafter, both of them were produced before area magistrate and were taken on one day PC remand. On 04.12.2017, accused Nitin Sabharwal was also FIR No: 219/2017 Page 120 of 158 arrested by him and his personal search was also conducted and disclosure was recorded by him vide memos already exhibited on record. He was also produced before the Magistrate and all the accused persons were thereafter remanded to judicial custody. Thereafter, he had further deposed about the investigations conducted by him regarding seizure of mobile phones etc. including CDRs and had identified the case properties as Ex. PW33/X1 and Ex. PW33/X2 being the mobile phones of accused Pritam Saini and Nitin Sabharwal.
During his cross-examination conducted by Ld. Counsel for accused Pritam Saini, he had stated that case file of this case was received by him through Reader of his ACP and there was no DD entry made regarding the receipt of file. Case was stated to have been transferred to Crime Branch by an official letter. He could have told about the presence of any witness corroborating the last seen theory only after going through the police file and after going through the same, he had replied that no such witness was examined u/s 161 CrPC till the file was handed over to him.
It was also admitted by him that only 1 photograph of deceased was available in the file when the same was handed over to him. However, again after going through the court file, he had deposed that there were 3 photographs available in the file when the same was handed over to him which were placed on record as mark PW33/A1, Ex. PW33/A2 and Ex. PW33/A3.
FIR No: 219/2017 Page 121 of 158However, no memo was available on record, showing the source of generation of those photographs.
To a specific question, he had admitted that even after the postmortem and receipt of FSL report of viscera, no exact cause of death could have been ascertained by him and it was ascertained only after the final opinion was given by the Board of Doctors. It was also admitted by him that postmortem doctors had not provided him the photographs of dead body along with the postmortem report. Since the doctor who had conducted the postmortem was also a member of Board of Doctors, hence, they might have put the photographs taken during the postmortem along with the report and their final opinion which was provided to him. It was though denied by him that he came to know about the injury on the neck of deceased only after receiving the final opinion of the cause of death and further stated that he came to know about the said fact just after receiving the postmortem report as it was mentioned therein. However, he had not obtained any opinion of the postmortem doctor regarding the existence of those injuries on the neck of deceased before taking the final opinion.
No investigation was stated to have been conducted by him regarding the accused persons as to whose palm signs had appeared on the neck of deceased for the purpose of strangulation. No DD number was stated to have been mentioned in the judicial record regarding his arrival and departure entries FIR No: 219/2017 Page 122 of 158 to the spot in connection with the investigation of this case. However, it was denied by him that till the arrest of accused Pritam Saini, there was no evidence against him except his mobile location and further stated that there were statements of various witnesses showing complicity of accused Pritam Saini in the present case.
Other formal suggestions were denied by him as wrong and incorrect.
In his cross-examination conducted by Ld. Counsel for accused Nitin Sabharwal, he was stated to have not recorded any statement of the Dr. Antara Deb Barma, who had conducted the postmortem asking her opinion about the two contusions mentioned as injury number one in the said report and had no knowledge, if the said doctor herself was unclear about the cause of death at the time of conducting postmortem.
In his further cross-examination conducted on 20.04.2022, on behalf of same accused, number 9810055499 was stated to be belonging to accused Nitin Sabharwal and had admitted further that as per investigation conducted by him, it was accused Nitin Sabharwal, who had made calls to ambulance as well as PCR at about 06:00 AM, in the morning. It was also admitted by him that till recording of interrogatory statement dated 08.08.2017, he was not having any sufficient evidence to arrest accused Nitin and Tazim in the present case. Despite that, FIR No: 219/2017 Page 123 of 158 Nitin Sabharwal had visited the office of Crime Branch several times to join the investigation as and when he was so called upon and no polygraphic test of said accused was got conducted by him.
It was though admitted by him that he had got polygraphic tests conducted on some of the persons during investigation, who according to him, were acquainted with the facts of the case and the events in the intervening night of 04/05.07.2017. It was also admitted by him that despite conducting polygraphic tests of the persons acquainted with the happenings and events of the intervening night, he had not come across any incriminating material against accused Nitin Sabharwal in relation to the present case. It was further admitted by him that the said polygraphic test was got conducted by him only in respect of the incidents which had occurred in the intervening night of 4th and 5th July. It was though denied by him that since said polygraphic test was not conducted primarily to ascertain the exact sequence of the events and the role of accused Nitin Sabharwal in the said incident.
He had never asked the previous IO about the reason for not having sealed the room and the portion of premises of the said house. He had also not come across any direction of previous IO issued to any subordinate officer regarding seizure of any articles lying there in the room, in which the dead body of FIR No: 219/2017 Page 124 of 158 Hemant was lying including any instructions for sealing of the property.
It was stated to be a matter of record that only a wine bottle was seized from the room where deceased was found. It was admitted by him that mother and sister of deceased were meeting him off and on as long as the investigation had remained pending with him.
In his further cross-examination dated 27.04.2022, it was admitted by him that complainant had made an allegation about deceased helping accused and his family in respect of some land deal, but the said allegation was not found substantiated during the investigation. It was also admitted by him that as per the CDR seized by him, accused Nitin and other accused persons were not present within the vicinity of house number B-439 NFC after 11:00 PM till 04:30 AM in the intervening night and as per the tower locations, Nitin was roaming from one place to another after 11:00 PM for some time and thereafter his location became static in New Friends Colony area only but at a different place, which was away from the spot. It was also admitted by him that he had examined some individuals to ascertain the places visited by Nitin Sabharwal in the intervening night between 11:00 PM till 04:30 AM but statements of those persons were not made part of charge-sheet by him. However, they had ascertained the fact that Nitin had spent considerable time with a woman, who was a sex worker while remaining out of his house between 11:00 PM FIR No: 219/2017 Page 125 of 158 to 04:30 AM in the intervening night of the incident but he had not visited the roadside vendors, food stall owners at whose shop Nitin had visited in the intervening night nor he could remember if the tower locations had reflected the location of accused Nitin at Sundar Nagar, Sher Shah Road, Nizamuddin, etc. It was further admitted by him that he had not recorded statement of any witness to the effect that accused Nitin Sabharwal had visited his house between 11:00 PM to 04:30 AM and though his presence was shown somewhere in the New Friends Colony between 01:00 AM till 03:30 AM but it did not specifically reflect his location at his house and during investigation, they had already found that Nitin Sabharwal and other accused persons had called a sex worker at house number No. A-168 New Friends Colony but he could not tell, if location of Nitin had remained static between 01.00 AM till 04.41 AM as no calls were received or made between the said duration. Though it was admitted by him that in Para 16.29.2 of the charge-sheet, he had mentioned about the static location of accused Nitin between 01.00 AM to 04.41 AM, which was at Flat Number A-168 New Friends Colony, where accused had arranged a call girl. However, it was denied by him that the sex worker examined by him had revealed to him that Nitin Sabharwal had spent close to 2 ½ - 3 hours with her at the aforesaid location of A-168 or that he had deliberately withheld the statement of aforesaid sex worker as it would have falsified the case of the prosecution or that he had deliberately introduced FIR No: 219/2017 Page 126 of 158 the voluntary portion of his statement regarding absence of calls between 02:00 AM to 04:00 AM to create a prejudice against accused Nitin.
In his further cross-examination conducted on 29.07.2022, by Ld. Counsel for same accused, it was further admitted by him that as per investigation conducted earlier, it had come to the notice that deceased had consumed wine and some drugs in the intervening night of 04/05.07.2017 and said fact was also mentioned in the document Ex. PW33/F. However, the said document was stated to be the interrogation memo of the witness Bhim Singh. He himself had not conducted any enquiries or investigation with regard to queries put up by Dr. Antra Deb Barma as she had not raised any doubt regarding cause of death. It was stated to be a decision taken after consultation of the Senior Officers to constitute a Medical Board to ascertain the exact cause of death as there was no clarity forthcoming in relation to the cause of death. However, he had denied the suggestion that even Dr. Antra Deb Barma had some major doubts and queries with regard to cause of death and it was for that reason that an opinion from the Medical Board was sought or that he had not conducted any independent investigation with regard to ascertaining the cause of death as it would have falsified the allegations made by the complainant and weakened the case of prosecution against the accused. It was though admitted by him that between the time period Dr. Antra Deb Barma had prepared the report and they had received second FIR No: 219/2017 Page 127 of 158 opinion from Medical Board, the accused persons had continued to join the investigation as and when they were called upon to do so. However, it was denied by him that he had not arrested the accused till receipt of second opinion as he had no other incriminating material against them to justify their arrest. It was though admitted by him that he himself had interrogated and examined Bhim Singh, servant who was cited as a witness in the present case, during which he had disclosed that deceased Hemant Chawla was lying next to him in the room at the premises after accused Nitin Sabharwal had left the said premises and he was breathing and snoring also. It was also admitted further by him that it was on this account that they had approached the medical board for seeking second opinion.
Dr. Sudhir Gupta was not the head of the medical board rather he was the head of Forensic Department. He could not comment as to whether the members of the board were juniors to Dr. Sudhir Gupta and were reporting to him or not as he himself had never met the said doctor during investigation of this case. It was though denied by him that he was deliberately concealing the fact from the notice of the court regarding his meeting with Dr. Sudhir Gupta during investigation or that being head of the Forensics Department at AIIMS, Dr. Sudhir Gupta was supervising the steps taken by the medical team and was the overall in charge of the same. He did not know if the reports of said doctor were also found to be unreliable in some other cases. After watching these reports, Ex. PW1/C and Ex. PW1/D, FIR No: 219/2017 Page 128 of 158 witness had admitted that those reports were forwarded by Dr. Sudhir Gupta only. He had however denied that Dr. Sudhir Gupta was overseeing the process of giving opinion by medical board about cause of death of deceased and complainant was also in regular touch with the said doctor or that he in consultation with Dr. Sudhir Gupta and the complainant, got prepared a false report in respect of cause of death of the deceased in the present case. Other formal suggestions were also denied by him as wrong.
It was further deposed by him that paragraphs 16.44 to 16.51 of the charge sheet, wherein he had cited some case laws did not form part of this charge-sheet, as relied upon documents but denied the suggestion that the said paragraphs were dictated by the prosecutor to frame a false case against the accused persons. The said case law was stated to have been cited by him to substantiate the case of prosecution after searching the same on internet. However, he was not aware of the name of prosecutor who had made him aware of the said case laws.
It was also admitted by him that it had already come to his notice during investigation that the person who was lastly seen in proximity with the deceased was none other than servant Bhim Singh. However, it was denied by him that he had deliberately not made him an accused in the present case to falsely implicate accused Nitin Sabharwal and others despite the fact that no incrementing material against them was available with him.
FIR No: 219/2017 Page 129 of 158It was also admitted by him that it had come to his notice during investigation of the case that deceased was a homosexual and he had also conducted investigation with regard to his sexual partners, but could not find any such person. It was further admitted by him that complainant had also made some insinuations against Mrs. Timpi Sabharwal, Arti Sabharwal and their servants with regard to their involvement in this case but he did not find any evidence showing their involvement in this case as Mrs. Timpi Sabharwal and couple of other servants were though present inside the house at the time of incident but in their respective rooms. It was also admitted by him that servant Bhim Singh had later on slept next to deceased in the room where he was found dead and that Timpi Sabharwal had also given a statement regarding the incident but he had not made her a witness in this case as she would have falsified the claims of the prosecution.
It was also admitted by the witness that during entire investigation, he could not find any motive for committing murder of deceased by the accused persons which fact was also mentioned by him in para number 16.39 of the charge-sheet. However, it was denied by him that a case of natural death was got converted by him into a case of manual strangulation on the basis of false and manipulated report or that he had deliberately incorporated the provisions related to last seen evidence in consultation with prosecutors to create a prejudice against FIR No: 219/2017 Page 130 of 158 accused Nitin Sabharwal and others despite the fact that there was no incriminating material to justify their prosecution.
Other formal suggestions were also denied by him as wrong and incorrect.
8. Thereafter, prosecution evidence was closed.
9. After conclusion of prosecution evidence, the statements of accused persons were recorded under Section 313 CrPC, wherein, all the incriminating circumstances and evidence as appearing against them on record were put to them to which except for the specific questions which were either admitted to be correct by them or were purely and essentially a matter of record, rest of them were denied by them as wrong and incorrect.
10. In his defence, it has been stated by accused Tazim Khan that at the time, when they had left the place, deceased was alive and only Bhim Singh would have been aware as to what was the actual cause of his death as he was seen lastly with the deceased.
Accused Nitin Sabharwal had deposed that the deceased was his childhood friend but he was falsely implicated in this case because his family could not come to terms with his death and they had also tried to even frame his mother Timpi FIR No: 219/2017 Page 131 of 158 Sabharwal and his sister Aarti Sabharwal by naming them in the complaint and cited it to be a false case.
Accused Pritam Saini had also claimed his innocence and had stated that it was he, who had made a call to HC Vinod on 06.08.2017 and told him that he could have told him something about Hemant Chawla murder case but the said police official had asked him to call next day and ultimately he met the said official on 09.08.2017, when he was introduced to the ACP as well as IO of this case who had again asked him to visit them next morning and next morning, he had informed them that he was also present in the house of accused Nitin on the day of incident from 08.30 to 10:40 PM and nothing had happened in his presence and deceased was seen fit and alive till the time he remained at the spot. Since IO was pressurizing him to give a statement against accused Nitin Sabharwal and Tazim which he had declined, hence he was also roped in the present case.
11. All the accused persons had also preferred to lead evidence in their defence.
DW1 Ms. Priyanka, D/o Sh. Raj Kumar, R/o H.No. NLP-53, Saharanpur, U.P, had stated that there was a birthday of her cousin Ansh Saini, who was son of her mama Pritam Saini, so she had come one day before the birthday, which was on 27.07.2017, and they had celebrated the birthday on 27.07.2017 and had plans to go out in the evening but in the meanwhile, her FIR No: 219/2017 Page 132 of 158 mama had received a call, so he told all of them to be ready and he would be back by evening. However, he did not return timely after which, all of them had slept around 10.00-10.30 PM.
Next morning at about 08.30 AM, when he woke up he was fine but he saw few missed calls on his mobile phone, then he called back on the said number and after talking to the said person, he started looking in tension. Her mammi Poonam Saini was also present there and asked him as to what was the matter, then her mama told that some mishappening had occurred with his friend's friend and further stated that though the person was not his direct friend but humanity required him to go there and after that he had left. Thereafter, her mama had returned late in the evening on the same day and though they had plans to go out to temple but since he had come late, hence by that time they had slept.
This witness was not cross-examined by the Ld. Prosecutor as she had referred to some incident of 27.07.2017, whereas the incident in the present case had taken place in the intervening night of 04/05.07.2017, hence her testimony is of no use and relevance to the defence.
DW2 Sh. Deepak Saini, S/o Sh. Raj Kumar, R/o H.No. NLP-53, Saharanpur, U.P, who is the brother of DW1 Priyanka Saini and he had also cited the incident dated 26/27.07.2017 which is not relevant. Hence, examination of this witness had also not caused any benefit to the accused persons.
FIR No: 219/2017 Page 133 of 158DW3 is Dr. L.C. Gupta, S/o Sh. Budha Ram Gupta, aged about 60 years, r/o B-12/13, Chhatarpur Extn, New Delhi, who was posted at Aruna Asaf Ali Hospital mortuary on the date of his deposition. In his examination-in-chief, he was stated to be a postgraduate in forensic medicine and technology for last 32 years and remained posted at various places including hospitals and mortuaries and was currently posted at Aruna Asaf Ali Hospital Mortuary and had also worked as HOD at Department of Forensic Medicines in various hospitals.
Witness was shown the postmortem report, inquest papers and photographs taken by the autopsy surgeon and was put specific questions during which he had stated that after going through the findings mentioned in the documents, no specific opinion about the cause of death or mode of death could have been ascertained by him being specialist of forensic medicine and working as autopsy surgeon as in such type of cases, complete postmortem examination along with samples of microscopic examination as well as chemical analysis, report were required to rule out concomitant poison was necessary. Hence, an opinion could have been drawn only after receipt of such reports.
It was further deposed by him that as per his considered and scientific opinion, cause of death in this case could not have been asphyxia due to manual strangulation as postmortem findings mentioned in the report clearly depicted that trachea was NAD (no abnormality detected) and major vessels of both side neck i.e. carotid arteries and jugular veins were found FIR No: 219/2017 Page 134 of 158 intact and further muscle underneath the injury number 1 was found not contused, rather there should have been injuries to both the parties victim as well assailants because of struggle between them in case of asphyxia and even in this case, taking samples of the fingernails, scrappings, nail clippings and organs for histopathological examination were necessary and FSL Delhi had also conducted lab tests to detect ethyl alcohol, barbiturats, benzodizepines, amphetamines, cannabinodies, diaecetylmorphine, morphine, codeine, cocaine, lysergic acid and LSD and none others. There were thousand types of poisons available, hence complete toxicological examination was required to be taken up, which was however not taken up by the lab.
There were stated to be three stages of asphyxia, i.e. stage of dyspnoea, stage of convulsions and stage of exhaustion. All these three stages should have got completed and had lasted for maximum about three to five minutes. Gasping was stated to be a stage which was part and parcel of the stage of exhaustion which was stated to be the last stage of asphyxia and could have resulted within three to five minutes before the death.
As per this witness, there was nothing mentioned about the characteristics and colors of injury number 1, 2 and 3 in the postmortem report, hence it could not be held that those injuries were antimortum in nature. Again he had retreated that death would have occurred just within 3-5 minutes after the stage of gasping and he had totally denied the fact that the injuries FIR No: 219/2017 Page 135 of 158 mentioned in PM report over the neck of the dead body could have been caused because of application of violent force during manual strangulation.
In reply to a court question as to what would have been the cause of marks and injuries mentioned in the PM report in this case, if those were not due to application of violent force due to manual strangulation, he had answered that the injuries could have been caused during shifting of the dead body from the casualty of the AIIMS, as in this case, in the MLC, it was clearly written that external injury not found by the doctor who had prepared the same, however, those injuries might have been caused by blunt force or impact.
It was further deposed that being an Autopsy Surgeon, it was the duty to preserve necessary samples to rule out the chemicals, poisons and existing pathological conditions in the viscera of the dead body along with other trace evidences as per his medico legal knowledge and no request for IO was required for the said purpose. However, if IO had demanded or requested for any special samples from the dead body, then generally those were preserved. It was admitted by him as correct that in case of death due to manual strangulation, cause of death "pure asphyxia" was a rare and exceptional phenomena and occlusion of airway (trachea) played a minor role in causing death. It was further admitted by him that for complete occlusion of lumen/ pipe of trachea would require considerable and substantial FIR No: 219/2017 Page 136 of 158 amount of force/pressure to block jugular and carotid systems as carotided arteries and jugular veins lied over and outer aspect of trachea in the neck.
In his opinion, cause of death in this case was not asphyxia as a result of manual strangulation as it was not scientifically possible. Again he had reiterated that death could have taken place just within three to five minutes of strangulation after the assailant had applied constriction force over the neck of the victim. It was also admitted that in some persons, alcohol had an effect on mayocardium of the heart which would be further predisposing to and producing arrhythmias and could have caused cardio pulmonary arrest and lead to death. In such a situation, no anotomical cause of death would be identified and autopsy findings would be essentially negative.
In his reply to another question, he had mentioned that no finding was mentioned in the PM report suggesting of homosexuality either as active or passive agent and in his opinion, deceased must have died within 2 to 4 hours after having his last meal, but no definite opinion about the cause of death and mode of death could have been given in this case as there was no microscopic and histopathological examination of the organs of deceased was conducted and even possibility of a natural death could also be not ruled out.
FIR No: 219/2017 Page 137 of 158During his cross-examination conducted by Ld. Addl. PP for State, he was stated to have appeared after receiving summons from the court through his Medical Record Department. However, he had no permission to appear as a witness in the court. He was stated to be serving Delhi Government for last 24 years and no departmental enquiry was initiated against him by the department till date. One FIR was though stated to have been registered against him at PS Trilok Puri but he could not remember its number and a case of disproportionate assets was also stated to be pending against him at Rouse Avence Courts. He had expressed his lack of awareness regarding any complaint filed against him by one Dr. A. K Kesar in relation to postmortem report number 986/2006 dated 01.11.2006 and in reply to court portion, he had stated that if any court would summon him to give any scientific opinion, he was bound to abide by the same in his official capacity and duty.
It is interesting to see that no questions regarding his competence and opinions as a medical and forensic expert were put to him by the prosecution during his cross-examination through Addl. PP for State.
12. Thereafter, DE was closed.
13. I have heard the arguments advanced at Bar by Dr. Prayag Dutt Pandey, Ld. Addl. PP for State assisted by Sh. Mohit Mathur, Ld. Senior Advocate along with Sh. Nawab Singh Jaglan FIR No: 219/2017 Page 138 of 158 and Sh. Chetan Anand, ld. Counsels representing the Complainant in this case and have also perused the written submission filed on record by both the sides and scrupulously gone through the entire material on record.
In this regard, ld. Addl. PP for State has placed reliance on the following citations :-
(i) Vinod Kumar v/s State of Punjab, Crl. Appeal No. 554 of 2012, Hon'ble Supreme Court of India, decided on 21.01.2015, wherein, in para no. 29, the Hon'ble Apex Court had held as under :
"29. ......
In Bhagwan Singh V. State of Haryana[24], it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. ......
the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof."
(ii) Ravasaheb @ Ravasaheb Gouda etc v/s State of Karnataka, Hon'ble Supreme Court, Crl. Appeal No. 1109-1110 of 2010, decided on 16.03.2023, wherein, Hon'ble Apex Court had held in para no. 17.1 as under :
"17.1 Evidence of hostile witness:
a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is FIR No: 219/2017 Page 139 of 158 admissible. Merely because there is deviation from the statement in the FIR, the witness's statements cannot be termed totally unreliable;
b) The evidence of a hostile witness can form the basis of conviction.
c) The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses.
[Mrinal Das Vs. State of Tripura (2011) 9 SCC 479]"
In the light of aforesaid law as laid down by Hon'ble Apex Court, it has been argued and submitted by ld. Addl. PP for State, that merely because the witness has not supported the case of prosecution during his cross examination, his testimony cannot be discarded or thrown away in the dustbin at the threshold and that portion which supports the prosecution story can very well be taken into account and conviction can be based up on the same.
Besides this, he had also stated that the fact of their location was exclusively within the knowledge of accused persons hence, as per the provisions of section 106 Indian Evidence Act, the burden lied upon them to have disclosed those facts and had also relied upon the citation of " Wazir Khan Vs. State of Uttarakhand, Crl. Appeal No. 1992-1923/2017" , wherein the honorable Supreme Court had also referred to certain principles:-FIR No: 219/2017 Page 140 of 158
"This Court took note of the provisions of Section 106 of Evidence Act, and laid down the following principles in paragraph 31 to 34 of the report:
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.FIR No: 219/2017 Page 141 of 158
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."
It was further held that in a case based on circumstantial evidence, where no eye witness was available, there was another principle of law which must have been kept in mind that when an incriminating circumstance was put to the accused, to which he had offered no explanation or offered an explanation which was found to be untrue, then it becomes an additional link in the chain of circumstances to make it complete. This view was also taken by Hon'ble Supreme Court in catena of judgments, namely, Nika Ram Vs. State of Himachal Pradesh, AIR 1972 SC 2077, Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 73, and State of U.P. V. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045.
Similarly, it was also held in the said case that in case of "Dharm Das Wadhwani Vs. The State of Uttar Pradesh, AIR 1975 SC 241":-
FIR No: 219/2017 Page 142 of 158"13. The question then is whether the cumulative effect of the guilt pointing circumstances in the present case is such that the court can conclude, not that the accused may be guilty but that he must be guilty. We must here utter a word of caution about this mental sense of 'must' lest it should be confused with exclusion of every contrary possibility. We have in S.S. Bobade v. State of Maharashtra, AIR 1973 SC 2622, explained that proof beyond reasonable doubt cannot be distorted into a doctrine of acquittal when any delicate or remote doubt flits past a feeble mind. These observations are warranted by Frequent acquittals on flimsy possibilities which are not infrequently set aside by the High Courts weakening the credibility of the judicature. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct. At the same time, it may be affirmed, as pointed out by this Court in Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from him". (emphasis supplied).
And on citation of "Sudru Vs. The State of Chattisgarh in Criminal Appeal No. 751/2010 decided on 22.08.2019, in which the earlier view was reiterated by the Hon'ble Supreme Court on the said legal aspect.
In their written submissions filed on record, Ld. Counsel for complainant have referred to the portions of the testimonies of the PWs at specific page numbers to show that the line of defence towed by the accused persons was not at all carried forward by the prosecution witnesses.FIR No: 219/2017 Page 143 of 158
Apart from this, they have also placed on record the list of exhibits relied upon by the prosecution indicating towards incriminating circumstances of this case which are sufficient enough to prove the guilt of accused persons beyond reasonable doubt and to convict them in this case.
In addition, thereto Mr. Mathur, Ld. Sr. Advocate had also drawn my attention towards the conduct of accused Nitin Sabharwal and stated that his conduct was suspicious right from the beginning that despite deceased being in a bad shape under the state of intoxication, he had dared to move out and that too, after locking the room from outside without caring that in case if the deceased had to meet with an emergent medical situation, then how he could have managed to come out of the room to seek assistance. Furthermore, despite coming to know that deceased was not responding, no efforts were made by accused Nitin Sabharal to provide him medical assistance at the earliest to save his life and rather waiting for about one and a half hours before calling his driver is also indicative of his involvement in this case.
Further, despite having his own car and driver, he had not made any arrangement to send the deceased in his car to his home rather had asked his own driver to bring the driver of deceased so that he could take him back is also an incriminating circumstance pointing towards the guilt of accused. It has also been stated that even the servants of accused Nitin Sabharwal FIR No: 219/2017 Page 144 of 158 had deposed against him that they were told not to disclose the name of Pritam Saini to anyone and were also asked to dispose of the belongings lying in the said room at the earliest to destroy the evidence also indicated towards his guilty intention.
On the other hand, Ld. Counsel for accused Tazim Khan as well as Sh. Vishal Gosain, Ld. Counsel for accused Nitin Sabharwal had highlighted the several portions of the testimonies and depositions of the witnesses and highlighted the contradictions appearing therein. Although different kind of defences were sought to have been taken by the accused persons including the homosexuality of deceased and consumption of some drugs by him on the fateful night, however, none of these fancies of accused persons got established on record by the evidence so adduced by the prosecution.
In his written submissions filed on record on behalf of accused Nitin Sabharwal, it has been stated that the incident in question was stated to have taken place between 10:30 PM to 04:30 AM, whereas accused Nitin Sabharwal was away from his house from 11:10 AM till 04:00 AM and was also spending time with a sex worker during the said night. The factum of his having remained outside the house had not only been established on record by the record of his mobile phone but was also confirmed by PW 33, who was the IO of the case as well. Besides this, he had also placed on record the several location charts of the mobile phone of accused Nitin Sabharwal and in the light of FIR No: 219/2017 Page 145 of 158 same, it has been contended that accused had returned to his house at about 04.55 AM. It was further stated that PW5 had also stated that when he had informed the accused Nitin that no sound was coming from the mouth of deceased then he immediately came back within ten minutes and PW5 had also admitted in his cross-examination that he was the only person, who had remained present with the deceased in the room from 12 midnight till 04:40 AM, whereas accused persons had already left the said place at around 11:10 PM. It has also been stated that accused Nitin could not have returned to the site of the incident during the night because, as per the CDR, he was roaming at places which were situated far away from the spot and no motive for committing murder of deceased could have been attributed to any of the accused persons, including accused Nitin and even as per the statement of PW5, when he had entered in the room of accused Nitin Sabharwal, where deceased was sleeping, he had heard the sound of gasping (khur-khur), which shows that he was breathing but with difficulty and thus was gasping. Even as per the testimony of SI Darpan, as well as the doctor who had prepared the MLC at AIIMS, no visible external injury was found present on the body of deceased and the entire physical and medical evidence regarding strangulation was completely missing in this case. Further as deposed by PW3, Dr. T. Millo, the subsequent medical opinion was merely an academic opinion based upon the documents of the case. It was also argued that the said opinion was a manipulated false opinion obtained by the family of deceased by putting pressure on the Board Of Doctors.FIR No: 219/2017 Page 146 of 158
It has also been stated that even PW1 Dr. Antra Deb Berma had admitted that no significant injury other than neck injury was found present over any part of the body nor same was noticed and further that she had also admitted that congestion of lungs could have also been due to pneumonia and had further agreed to the suggestion that 33 pounds pressure was required to be applied to choke the trachea completely leading to the death of a person but same thing had not happened in this case.
Similarly, certain portions and extracts of the deposition of PW3 Dr. T. Millo and DW3 Dr. L.C. Gupta have also been reproduced to show that the death in this case was natural or might have been a result of overdose of drugs and alcohol and in this regard cross-examination of PW19 SI Darpan as well as statements Ex. PW19/A and Ex. PW19/B pertaining to Aman and Ruchi Vadhera, statement of PW5 Bhim Singh recorded on 10.10.2018 regarding deceased being under influence of liquor as well as the statement of PW9, his mother regarding her son being under treatment and taking antidepressant tablets etc. were cited as probable causes for his death.
So far as gasping stage undergone by deceased is concerned, it has been submitted that gasping was just an assumption of the medical witnesses because it was not supported by any medical literature and further, it was held by honorable Supreme Court that Courts were not to be guided FIR No: 219/2017 Page 147 of 158 absolutely by the experts, especially if the reports made by them were unsustainable and reference in this regard has been placed upon the citation of "Tomaso Bruno Vs. State of UP (2015) 7SSC 178" paras relied upon 33, 34, and 43 and " State of Haryana Vs. Bhagirath (1999) 5SCC 96 ", para 15. It has also been stated that on the night of alleged incident, the accused and deceased were engaged in drinking and consumption of drugs as deposed by PW4, PW5, PW8 etc. Further, it has been argued that there was no abnormality found between the time slot starting from the arrival of deceased at the house of accused Nitin Sabharwal till Nitin's leaving his house for roaming out and no struggle or sound of screaming was heard by anyone present in the house or around it and deceased was lastly seen in the company of Bhim Singh and that too in proximity and not in the company of either of the accused persons. It has also been argued that sanctity of crime scene was completely disturbed as deposed by PW19 as well as PW28 because the room was never sealed. No fingerprints were stated to have been recovered from the spot nor any SDM was stated to have been called to conduct inquest proceedings under Section 174 of CrPC and thus it has been claimed that accused were falsely implicated in this case.
So far as charge u/s 201 IPC is concerned, it has been stated that PW5 had improvised his version regarding having seen torned clothes of deceased in the dustbin of the FIR No: 219/2017 Page 148 of 158 kitchen in the morning of 04.07.2017 and also having told that fact to the IO but there was no such fact found mentioned in his aforesaid statements.
In the written submissions filed on behalf of accused Pritam Saini, it has been stated that the case of prosecution was solely based upon circumstantial evidence which was required to prove the guilt of accused beyond any reasonable doubt by keeping the chain of circumstances intact and in this regard reliance has been placed upon citation of Hon'ble Supreme Court in "Sharad Birdhi Chand Shardha Vs. State of Maharashtra, AIR, 1984 SC1622 ", wherein Hon'ble Supreme Court had held that the circumstances from which the conclusion of guilt has to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established and the facts so established should be consistent only with the hypothesis of guilt of accused which means that they should not be explainable on the basis of any other hypothesis except that points out towards the guilt of accused and such circumstances should also be of a conclusive nature and tendency and should exclude every possible hypothesis except the one to be proved. Further, it was held that 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.FIR No: 219/2017 Page 149 of 158
Similarly, reliance has also been placed upon case titled as "State of UP vs. Ashok Kumar Srivastava (1992) 2SCC 86, wherein it was held by Hon'ble Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied upon is reasonably capable of two inferences, then one in favor of accused must be accepted.
Secondly, it has been argued that absence of motive weighed in favor of the accused persons and in this regard, reliance has been placed upon citation of "Anwar Ali and Anr. Vs State of Himachal Pradesh (2020) 10 SCC 166".
Thirdly, it has been stated that the provisions of Section 106 of Indian Evidence Act were not to apply in the present case and reliance in this regard has been placed upon citation of "Shambhu Nath Mehra vs. State of Ajmer (1956) 1 SCR 199", wherein it was held that the general rule in a criminal case was that burden of proof was on the prosecution and Section 106 of IEA certainly was not intended to relieve it of that duty. It was held further that if the section was to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case, the burden lies upon the accused to prove that he did not commit the murder because who could know better than him whether he did or did not commit the offence.
It has been further submitted that though prosecution had tried to built up a case of motive against the accused persons FIR No: 219/2017 Page 150 of 158 by stating that accused Nitin Sabharwal was taking help of deceased in a land deal worth 400 crores as alleged in the complaint, however, IO had fairly conceded in his testimony that no such motive could be found.
Fourthly, it has been argued on behalf of this accused that medical evidence and the opinion of experts is only corroborative in nature and cannot replace the substantive evidence. Reliance has also been placed in this regard on the citations of "S. Gopal Reddy vs. State of AP (1996), 4 SCC 596", "State of Himachal Pradesh Vs. Jai Lal and Ors (1999) 7 SCC 280" and "Magan Bihari Lal Vs State of Punjab (1977) 2 SCC 210" and lastly, it has been stated that past and subsequent conduct of accused Pritam Singh Saini was very important and relevant factor to be considered as he had no business dealings or transactions with the deceased nor he was related to deceased or any of the co accused persons. Thus he had no motive or reason to cause his murder and he had also cooperated during the investigation and joined the same as and when so called upon by the IO and none of the witnesses examined by the prosecution had attributed any direct or indirect act or omission on the part of this accused which could have led to a conclusion about his having participated in commission of the offense rather, as per the statement made by accused u/s 313 CrPC, he was stated to have left the premises at around 10.30- 10.40 PM, which was much earlier than the time when other co-accused persons had left the said spot and deceased was admittedly alive at that time FIR No: 219/2017 Page 151 of 158 hence, accused Pitam Saini was entitled for an honorable acquittal from the court.
Reliance has also been placed by Ld. Counsel for accused Nitin Sabharal on the following citation:-
(I) " Babu Lal vs. State of Chhatisgarh 2017 Criminal LJ (NOC 182) 57", wherein it was held that medical evidence by itself is not a conclusive proof unless duly corroborated by other evidence.
(ii). Similarly, in "State of Haryana vs. Bhagirath (1999) 5 SCC 96", it was held that opinion given by a medical witness need not be the last word on the subject and has to be testified by the court. If the opinion was bereft of logic or objectivity, then the court was not obliged to go by that opinion.
(iii) "Tomaso Bruno and Ors. Vs State of UP (2015) 7 SCC 178", it was held that failure to produce CCTV footage and call records and withholding the best evidence which could have clinched the issue would be fatal to the prosecution case. In para 38 of the said judgment, it was mentioned that when there was no injury found in the superior cornu of hyoid bone and no frothy mucous was found in the larynx and trachea, then it could not have been held that it was a case of strangulation or asphyxia.
FIR No: 219/2017 Page 152 of 158(iv) In "Satish Nirankari Vs. State of Rajasthan (2017) 8 SCC 497", in para 38 while relying upon Modi's medical jurisprudence and toxicology, it was held that if the death would have been caused by strangulation, then fracture of larynx and trachea and hyoid bone was a must and there should have been stretches, abrasions and finger nail marks and bruises on the face, neck and other parts of the body. The Hon'ble Supreme Court was pleased to allow the appeal and acquit the appellants from the charges of murder.
Thus, it has been argued that prosecution has miserably failed to prove the guilt of either of the accused persons beyond any reasonable doubt and they deserved honourable acquittal in this case.
14. After hearing both the sides and discussing their respective pleas at length, I am of the considered opinion that it is a case where there is no eye witness but only circumstantial evidence of last seen available with the court, where deceased was lastly seen in the company of accused persons. Although, as discussed in detail in the preceding paras, though PW1 had talked about two contusions having seen on one side of neck of deceased, however, the said injuries were not noted either by the police official or by the doctors, who had prepared the MLC. Further more, she had taken see-saw of stances and had tried to take a vague defence and escape from the specific questions FIR No: 219/2017 Page 153 of 158 having put to her during her cross-examination, wherein despite having agreed to and admitted to the medical jurisprudence, she had taken a general defence of each case being different and varying depending upon its own peculiarities.
So far as, PW3 Dr. T. Millo is concerned, he had already stated that the subsequent opinions were nothing but only having academic value.
However, even for the sake of arguments, the postmortem report as well as subsequent opinions rendered by the medical board are admitted to be correct per say, then also, I have no hesitation in holding that as per prosecution's own case, the postmortem was conducted at 02.30PM and in subsequent opinion given at the instance of IO, the time duration was stated to be varying from 02-03 hours on either side of conducting the postmortem. Even if the maximum permissible stretch of variation of 3 hours is applied to the given facts of this case, then also, I have no hesitation in holding that deceased could not have died at 05.30-06.30 AM, because his death was already detected at 04.30-04.40AM by PW5. Hence, if this variation is applied on earlier side, then the probable time of death could be assumed to be somewhere around 11.30 PM, however, it is the prosecution's own admitted case that the accused persons had left the home at around 11.00-11.10 PM and in the opinion of DW3, who was not cross-examined by the Ld. Prosecutor on this aspect, the stage of gasping being the last stage in case of asphyxia could have lasted FIR No: 219/2017 Page 154 of 158 only for about 3-5 minutes, which essentially means that if a person was seen gasping at about 11.30 PM, then he must have been strangulated around 11.25PM, admittedly when none of the accused persons not even the PW5 was present in the room with the deceased.
Even finger prints or the measurements of their thumbs and fingers of any of the accused persons were also not taken by the IO, so as to match them with the size of contusion found on the neck of deceased so as to arrive at a logical conclusion about the person who had caused those contusion marks. In the absence of any such investigation being done or carried out, the possibilities of deceased getting such contusions during the course of transit of his body from one place to other place, especially from emergency to postmortem house could not be ruled out as was deposed by DW-3 Dr. L.C Gupta.
Further more at 11.30 PM or after that when PW5 had entered in the room to sleep with the deceased on instruction of accused Nitin Sabharwal, he had heard the sound of snoring (khur-khur) of the deceased, which means that he was alive and was breathing but due to his body weight, as he was stated to be heavily built, the sound of snoring was being produced during his breath and by that time, the accused persons had already gone before half an hour of the said incident.
FIR No: 219/2017 Page 155 of 158Hence, though the theory of last seen was there but I have no hesitation in holding that it lacks the proximity in time in terms of last seen and the actual time of death of deceased.
In "Chandrapal Vs. State of Chhatisgarh, 2022 SCC Online SC 705 ", it was held by Hon'ble Apex Court held that conviction could not be based solely on the basis of last seen together theory when possibility of death due to some other reason could not be ruled out.
So far as allegations against accused persons for an offence u/s 201/34 IPC are concerned for causing destruction of evidence. As deposed by PW19 as well as PW32 both police officials that they had not seen anything disturbed or removed from the room when they had entered inside, it could not be held that the room was touched by any external person or agency.
Merely because the blanket and pillows and mattresses if any were thrown away on the instructions of accused Nitin Sabharwal by his servant and driver, it could not be held that they had caused any destruction or disappearance of evidence as it is common tradition in Indian society and culture that the beddings and clothes of deceased persons are not kept in the houses anymore and are removed at the earliest after the cremation or performing last rites of the dead body. Furthermore the prosecution had failed to establish any motive for committing murder of deceased as the alleged deal of 400 crores had not yet FIR No: 219/2017 Page 156 of 158 been concluded. Further more, from the testimony of PW8 Balwant @ Balam, it has become an established fact on record that in order to prove his loyalty towards the family of deceased being their employee, he had exaggerated his version before the court and had come up with an altogether new and improvised version by stating even those facts which were never disclosed by him to anybody earlier. So far as accused Tazim is concerned in respect of allegation u/s 201 IPC, it is not even the case of any of the PWs that he had caused disappearances of mattresses or that he had actually torn the vest of the deceased as no scissors etc. or torned vest was either seen or was recovered by the police from the spot.
Similarly, no role whatsoever has been assigned by the prosecution to accused Pritam Saini besides his mere presence at the spot on that evening.
15. In view of my aforesaid discussion, I have no hesitation in holding that prosecution has miserably failed to link any of the accused persons in any manner whatsoever with the commission of offence alleged to have been committed by them as the accused persons were admittedly not present at the spot from 11.10 PM till 04.45 AM, when the death of deceased had taken place, therefore all the accused persons are acquitted from the charges leveled against them.
FIR No: 219/2017 Page 157 of 15816. Their bail bond surety bounds furnished u/s 437A CrPC shall remain in force for a period of six months from today.
17. They are directed to be released forthwith from the custody if not required to be detained in any other case whatsoever.
18. Case file be consigned to record room after completion of other necessary formalities in this regard.
Digitally signedANNOUNCED IN THE OPEN COURT LOKESH by LOKESH
KUMAR
DATED: 09.11.2023
KUMAR SHARMA
SHARMA Date: 2023.11.09
16:35:12 +0530
(LOKESH KUMAR SHARMA)
ADDL. SESSIONS JUDGE (FTC - 02)
SOUTH EAST DISTRICT
SAKET COURTS : NEW DELHI
FIR No: 219/2017 Page 158 of 158