Delhi District Court
State vs . on 11 January, 2012
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 66/10
FIR No. : 72/07
P.S. : Shalimar Bagh
U/s : 302/394/411/34 IPC
Date of registration : 06062007
Reserved for Judgment on: 03112011
Judgment Announced on : 11012012
State
Vs.
1. Salma W/o Mohd. Israfil Ansari
R/o A1/4, PhaseI, Budh Vihar,
Delhi.
2. Sudhir Kumar
S/o Sh. Dev Narayan Yadav,
R/o A1/4, PhaseI, Budh Vihar,
Delhi.
JUDGMENT
1. Briefly stated the facts of the case are that on 30012007, at about 9.00 a.m an information through PCR was received in P.S. Shalimar Bagh about a dead body lying in a park near Vishal Vatika Rukmani Devi Public School. This information Contd....
2was recorded vide DD No. 14 A. On receiving DD No. 14 SI Satender Kumar alongwith constable Jasvinder reached at Vaishali Park near Rukmani Devi Public School, Pitam Pura, where a dead body was found lying on the earth in the groove of trees near an iron bench in half naked condition.
2. The age of the deceased was around 30 years, height was about 5 ft. 5 inches and stout by built. The deceased was wearing a blue colour winsheeter, brown jersy, light green colour shirt, white baniyan and a brown colour underwear. One helmet and a condom were also lying near the dead body. One black colour bag was found on the bench adjacent to the dead body. There were many papers and driving license in the bag which were taken out. Froth had come out of the mouth of the deceased and there were injury marks on his chin and neck. On removing the underwear of the deceased, a pink colour condom was found on the private organ of the deceased. A grey colour pant in two parts having brown colour belt on one part of pant was also found lying near left side of the legs of deceased.
3. Inspector Satinder called the Crime team at the spot, got the scene of crime inspected and photographed. Thereafter he prepared the rukka and got the case registered through constable Contd....
3Rajesh.
4. F.I.R. bearing No. 72/07, was registered at P.S. Shalimar Bagh and investigation went underway. During investigation accused persons were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
5. On 21/11/2007, a charge U/s 302/392/34 IPC was framed against both the accused and charge U/s 411 IPC was also also framed against both the accused separately to which they pleaded not guilty and claimed trial.
6. In order to prove the guilt of the accused, the prosecution examined as many as 31 witnesses.
7. PW 1 SI Manohar Lal is the draftsman. He prepared the scaled site plan and proved the same as Ex. PW 1/A.
8. PW 2 is Rajiv Kumar and the deceased Vivek Aggarwal was the son of his sister Smt. Indu Aggarwal. He deposed that on 30012007, he received a telephone call from his house and he was told that the police had called him at a park near Rukmani Devi Public School. He reached there and identified the dead body as that of Vivek Aggarwal.
Contd....
4
9. He further deposed that deceased Vivek Aggarwal used to have a mobile phone make Nokia having reliance connection. He could not tell the mobile number but deposed that it was something 93124..... He further deposed that Vivek Aggarwal also used to wear a wrist watch of make MAXIMA QUARTZ of golden colour. Neither the mobile phone nor the wrist watch were on the person of Vivek Aggarwal at that time. He identified the dead body of Vivek Aggarwal in the mortuary and proved on record his statement with regard to the same as Ex. PW 2/A. He also identified the driving license of Vivek Aggarwal as Ex. PA, wrist watch as Ex. P1 and mobile phone make Nokia 2112 as Ex. P2 to be the same which belonged to the deceased Vivek Aggarwal.
10. PW 3 ASI Urmila is the duty officer. She registered the FIR and proved on record the carbon copy of the same as Ex. PW 3/A. She also recorded DD No. 9 A regarding registration of the FIR.
11. PW 4 Som Pal deposed that he was working as Mali as well as chowkidar in Vaishali Park, near Rukmani Devi Public School, Pitam Pura and his duty hours as a chowkidar used to be from 5:00 p.m. to 1 a.m. midnight. He further deposed that on Contd....
529012007, he came to Vaishali Park for duty at about 5:00 p.m and was sitting under a shed, constructed in the park as it started drizzling at about 8 or 8:30 p.m. on that day.
12. He further deposed that at about 10:00 a.m two boys with a lady entered the park through a gate. During the course of the arguments, it was submitted by the Ld APP that the time mentioned as 10:00 a.m. in the testimony of this witness should be 10:00 p.m., the time which according to PW 4 accused persons and the deceased came to the park. It is further submitted by the Ld. APP that it appears to be a typographical error. I fully agree with the submissions of the Ld. APP because this witness has stated that on 29012007, he came to the park at about 5:00 p.m and the accused persons came their alongwith the deceased at 10:00 a.m. but this is not possible and the time should have been 10:00 p.m as the incident is of the same day and the mistake of A.M and P.M. is a typographical error. So the time is read as 10:00 p,m.
13. PW 4 further deposed that when they reached near the store, he asked them as to why they have come to the park. They told him that they had come to have a walk. When he told them that it was odd hours, then they left the park and proceeded Contd....
6towards Adharshila School. He identified accused Salma as the same lady out of those three persons and also identified accused Sudhir Kumar as one of the person who had accompanied this lady.
14. He further deposed that at about 12:30 p.m, he went to his house as his wife was not well and on the next morning, when he came to the park, he found that the dead body of a person was lying near a bench in the groove of the trees. He also deposed that the dead body was of same person who had accompanied the two accused persons referred to above. He narrated the entire incident to the IO Inspector Satbir Singh.
15. PW 5 Sh. Naveen Chander Aggarwal is the father of deceased Vivek Aggarwal. He identified the dead of his son. He proved on record his statement regarding identification of the dead body as Ex. PW 5/A.
16. PW 6 Jai Parkash deposed that he was running a shop in the name of JP Telecom and sold mobiles, its accessories, recharge coupons and SIM Cards. He proved on record the bill issued by him as Ex. P1 vide which he sold the mobile phone NOKIA 2310 blue colour for a sum of Rs. 2950/. He identified accused Salma and Sudhir as the same persons who came to his Contd....
7shop on 30012007 and purchased the above said mobile hand set.
17. PW 7 Rajender Arora deposed that in the month of February, 2007, Inspector Satbir Singh came to his Service Centre at AJ 48A, Shalimar Bagh, Delhi. He supplied the details of one mobile phone handset Nokia 2112 with its ESNHEX and asked to get the RSN number on this mobile handset Nokia. He searched on the computer and found out the RSN Number of that handset and supplied the computer generated printout of the same. He proved on record the search result view bearing the ESNHEX No. 218ea796, Sl. No. RNK GEC490155, SPL449616 as Ex. PW 7/A. He further deposed that on this RSN number RNK GEC490155 phone No. MDN 9312436820 was activated. This MDN 9312436820 was the Reliance Number.
18. PW 8 Constable Jaswinder deposed that on 30012007, he was posted at PS Shalimar Bagh and on that day, he received DD No. 14 at PP Pitam Pura and he alongwith SI Satender Kumar went to Vaishali Park, Near Rukmini Devi Public School. There in the park, in the bunches of trees, there was one iron bench and near it on the ground one male dead body half naked was found. He further deposed that IO prepared an application Contd....
8for preserving the dead body at the Mortuary. He took the dead body to Mortuary, BJRM Hospital and deposited the same at the mortuary at 1:30 p.m vide token No. 38. The dead body remained in his custody till postmortem.
19. PW 9 is constable Rajesh Kumar who on 30012007, alongwith SI Satya Prakash went to Vaishali Park near Rukmini Devi Public School, Pitam Pura, Delhi where one male dead body was found. PW 9 further deposed that at the spot, SI Satender Kumar was also present who conducted necessary investigation and made endorsement on DD No. 14 and handed over to him Rukka at 11:30 a.m. PW 9 further deposed that he went to PS Shalimar Bagh for registration of FIR and came back with the copy of FIR and original rukka and presented the same to Inspector Satya Bir Singh for further investigation.
20. PW 10 H.C. Lala Ram is the MHC(M) he deposed about the depositing of exhibits, sealed parcels and the seizure memos of the instant case by Inspector Satvir Singh in the malkhana on 30012007, 01022007 and 02022007 and the entries made by him regarding the same in register No. 19. He proved on record the entries made by him in register No. 19 at S.No. 3157 as Ex. PW 10/A, entry at S. No. 3158 as Ex. PW 10/B, entry at S. No. Contd....
93162 as Ex. PW 10/C, entry at S. No. 3164 as Ex. PW 10/D.
21. He also deposed that on 09022007, aforesaid sealed parcels, sample seals, forwarding letter etc. were sent for analysis to FSL Rohini through constable Neeraj Kumar vide RC No. 23/12/07. He proved on record the copy of the RC as Ex. PW 10/E. He further deposed that on 07062007, expert opinion was received at PS alongwith concerned parcels. As per register the endorsement was made. He proved on record the copy of endorsement as Ex. PW 10/F.
22. PW 11 is Constable Neeraj Rana who on 09022007 had taken eight sealed parcels alongwith sample seals and forwarding letters from the custody of MHC(M) to FSL, Rohini for analysis vide RC No. 23/21. He had deposited some sealed parcels there but one viscera box alongwith sample seal could not be deposited on that day. On 20022007, he had again taken two viscera box alongwith sample seal vide RC No. 28/21 for analysis to FSL but it could not be deposited and he further deposed that on 27022007, aforesaid viscera box and sample seals were deposited vide RC No. 32. He delivered the receipt to the MHC(M).
23. PW 12 is H.C. Surender Singh who on 31012007, Contd....
10alongwith the IO went to BJRM Mortuary where IO seized four sealed parcel duly sealed with the seal of mortuary alongwith sample seal vide seizure memo which he proved as Ex. PW 12/A. He also deposed that the aforesaid parcels had been taken by him from the doctor and he had delivered the same to the IO.
24. PW 13 W/HC Asha Rani remained associated with the IO during the investigation of the case. She narrated the sequence of investigation done by the IO. In her presence both the accused persons were apprehended on the pointing out of the secret informer while they were sitting on one cycle rickshaw. She further deposed that both the accused were arrested and their personal search was taken by the IO vide arrest memos and personal search memos which she proved as Ex. PW 13/A, Ex. PW 13/B, Ex. PW 13/C and Ex. PW 13/D. She deposed that she had taken the personal search of accused Salma on the direction of IO. She also proved on record the disclosure statement of accused Salma as Ex. PW 13/E. She deposed that both the accused led the police party to the place of murder in pursuance of their disclosure statements. She further proved on record seizure memo of shoes of accused Salma as Ex. PW 13/F. She also proved on record the seizure memo as Ex. PW 13/G Contd....
11vide which shoes of accused Sudhir were taken into possession.
25. PW 13 further deposed that both the accused persons led them to their tenanted house i.e A1/4, PhaseI, Budh Vihar, Delhi. IO had prepared the pointing out memo of the place of occurrence. She proved on record the pointing out memo as Ex. PW 13/H. PW 13 further proved on record seizure memo as Ex. PW 13I vide which IO took into possession NOKIA 2112, grey and white colour, and seizure memo as Ex. PW 13/J vide which IO took into possession one woolen scarf of red, green and yellow colour which was allegedly used by the accused persons to commit the murder of deceased. She further proved on record seizure memo as Ex. PW 13/K vide which one mobile phone NOKIA 2112 of grey and white colour was taken into possession which was taken out by accused Salma from Almirah. She also proved on record seizure memo as Ex. PW 13/L vide which IO took into possession one wrist watch from the possession of accused Sudhir. PW 13 further deposed that IO had seized the rikshaw vide seizure memo as Ex. PW 13/M. PW 13 identified the accused persons and the case property.
26. PW 14 is H.C. Joginder. This witness was given up by the Ld. Addl. PP for the State as on the same facts W/HC Asha Contd....
12Rani has already been examined.
27. PW 14 constable Ashok is the DD writer. He proved on record DD No. 14 as Ex. PW 14/A vide which he recorded the information regarding lying of a dead body in the park near Vishal Vatika, Rokmini Devi Public School.
28. PW 15 H.C. Charan is the special messenger, who on 30012007, delivered the copy of FIR of the instant case to Ld. MM, DCP NW and Joint CP.
29. PW 16W/HC Seema recorded the information regarding lying of a dead body in the park near D.A.V. Public School, Vishal Vatika, Pitam Pura, in the log book at S. No. 3. She proved on record the copy of the said entry as Ex. PW 16/A.
30. PW 17 constable Ramesh Chander is the photographer who on 30012007, took the photographs of the scene of crime at the instance of IO. He proved on record the photographs as Ex. PW 17/A (1 to 20) and the negatives thereof as Ex. PW 17/B (121).
31. PW 18 is Ct. Karambir Singh who recorded the information in the PCR form on 30012007, regarding a dead body lying in the park near Rukmani Devi School, Vaishali Vatika, Pitam Pura. He proved on record the photocopy of the Contd....
13PCR form as Ex. PW 18/A.
32. PW 19 is retired ASI Kabool Singh who on 30012007, was incharge PCR Van, Commander 29 and. And on that day at about 8.56 a.m on receiving the information from control room about one male dead body ling in the Vaishali Park, Near Rukmani Devi School, made the entry in the call book and alongwith the staff reached the spot and found one male dead body lying near the iron bench inside the park.
33. He informed the control room and the local and senior police officials came at the spot. They inspected the dead body and near by place. One black colour shoe was lying near the dead body, one black colour jacket was noticed on the dead body, only one leg of the dead body was having pant, socks and one shoe were also noticed on the dead body. He made entry in his call book and left the spot. The photographs already Ex. PW 17/A (420) available on judicial file were shown to this witness and on seeing the same he told that these are depicting the park and dead body pertaining to this case.
34. PW 20 is Naresh Kumar Kadian. He informed to the police at 100 number by his phone no. 9811256824.
35. PW 21 Sanjeev Lakra is the Nodal Officer, Reliance Contd....
14Communication. He proved on record the computer generated CDR (call details) of phone No. 9312215780 from the period 28012007 to 30012007 and of mobile phone No. 9312436820 for the period 29012007 to 30012007 as Ex. PW 21/A and Ex. PW 21/B respectively. He also proved on record the Cell ID Chart as Ex. PW 21/C and certificate U/s 65 A & B of Evidence Act as Ex. PW 21/D in connection with the aforesaid two mobile phones.
36. PW 22 Abdul Rauf deposed that he is permanent resident of Faizabad (Ambedkar Nagar), U.P. and in the year 2007, he was doing the job at Mayur Tent House at Multani Mohalla, Rani Bagh, Delhi. He further deposed that accused Salma present in the Court is known to him as she was residing in his neighbourhood earlier in Budh Vihar, Delhi. Jaith of accused Salma is also the resident of Budh Vihar. He had visiting term with him.
37. PW 22 further deposed that he has Reliance phone connection number 9312215780 for the last 67 years and on 30012007, at about 8:30 a.m, he received telephone call of Salma on his aforesaid mobile phone when he was going for his work. He talked with her on phone. Accused Salma had requested him to send his wife at her house to prepare food as Contd....
15she was ill. He declined for the same. Salma talked to him aforesaid facts on his phone for one minutes on that day.
38. PW 23 SI Matadin is the incharge mobile Crime Team. On 30012007, he alongwith the photographer and finger print expert reached at the spot. He inspected the scene of crime in presence of SI Satender and other police officials. He also inspected the dead body lying on the bench between groove inside the park. He prepared the crime report and handed over the same to the IO at the spot itself. He proved on record the scene of crime report as Ex. PW 23/A.
39. PW 24 Shri Harinder Singh is the director marketing Springwell Matress private Ltd. He deposed that on 30012007, he was posted as Director Marketing and on that day he joined police proceedings as per request of the IO as the matter pertained to death of one Vivek Aggarwal, the sales representative of their company.
40. Thereafter he reached the place of occurrence i.e Vaishali Park, Pitam Pura, Delhi where he saw the dead body of Vivek Aggarwal lying in between the trees near the iron bench. On the iron bench one rexine hand bag was also lying and the bag contained some documents related to the company business Contd....
16and he also identified the bag as that of Vivek Aggarwal which was given to him by the company for official work. He further deposed that company had also given one mobile phone make Nokia to him but that was not found there. At that time police had told him that no cash amount was recovered from the person of deceased.
41. He further deposed that on 29012007, Vivek Aggarwal had come to him and requested him to sanction a loan as his wife was pregnant and he was to get his wife medically examined. He had given him Rs. 3000/ as loan. As far as he remembered two currency notes were of denomination of Rs. 500/ but he do not recollect the denomination of remaining currency notes.
42. He further deposed that on 07022007, he had handed over one letter on behalf of the company as per request of the IO which he proved as Ex. PW 24/A. He had also handed over the copy of Reliance mobile bill which he proved as Ex. PW 24/B which he had handed over to the IO. He identified the bag as Ex. P1 as the same which was given to deceased by the company. He also identified the mobile phone Nokia 2122 as Ex. P2 to be the same which was given to the deceased by the company.
43. PW 25 is inspector Satya Prakash and on 01022007, Contd....
17he was posted as SI at PP Pitam Pura, PS Shalimar Bagh. He remained associated with the IO during the investigation of this case and narrated the sequence of investigation done by the IO. He is the witness of arrest of the accused persons and in his presence the personal search of the accused persons was conducted and they also made their disclosure statement and IO had seized the various exhibits of the instant case in the presence of this witness. This witness deposed more or less on the same lines as deposed by PW 13 W/HC Asha Rani who also remained associated with the IO during the investigation. PW 25 proved on record the disclosure statement of accused Sudhir Kumar as Ex. PW 25/A and pointing out memo prepared by the IO at the instance of accused Sudhir as Ex. PW 25/B. He identified the accused and the case property.
44. PW 26 is Inspector Satyavir Singh he is the second IO of the case. He unfolded the sequence of investigation done by him. He proved on record the seizure memo as Ex. PW 26/B vide which he took into possession the rexine bag and driving license of the deceased, seizure memo of Helmet, black colour shoe of right foot, grey colour pant, key ring having four keys, small pocket diary, one purse containing some visiting cards, one pen Contd....
18belonging to deceased as Ex. PW 26/C, seizure memo of pink colour condom as Ex. PW 26/D, seizure memo of earth control as Ex. PW 26/E, seizure memo of motorcycle and article kept in dickey as Ex. PW 26/F, inquest proceedings as Ex. PW 26/G, and seizure memo of one sealed parcel and one sample seal of the hospital which was handed over by SI Satinder Kumar after the medical examination of accused persons as Ex. PW 26/H. After the completion of investigation, PW 26 prepared the charge sheet and filed the same in the court for trial of accused persons. He identified the accused and the case property.
45. PW 27 is Shri Prashant Kumar, CCJ/ARC, Rohini Courts, Delhi. He conducted the TIP. He proved on record the statement of the IO recorded by him as Ex. PW 27/A, TIP proceedings as Ex. PW 27/B, certificate regarding correctness of the proceedings as Ex. PW 27/C and application moved by the IO for supply of copy of TIP proceedings as Ex. PW 27/D.
46. PW 28 is Shri Parshu Ram Singh, Senior scientific Officer, Physics FSL Rohini. He examined the exhibits of the instant case i.e earth control, a pair of sports shoes having soil adhering to it and an other pair of shoes having soil adhering to it. He proved on record his detailed report as Ex. PW 28/A. Contd....
19
47. PW 29 Shri V. Shankra Narayanan, Senior Scientific Assistant FSL, Rohini. He also examined the exhibits of this case as mentioned in his report and he proved his report as Ex. PW 29/A. He also proved on record his serological report as Ex. PW 29/B.
48. PW 30 Inspector Satinder is the initial IO of the case. He disclosed the sequence of investigation done by him. He prepared the rukka and made his endorsement on the same and got the present case registered through constable Rajesh. He proved on record his endorsement on the rukka as Ex. PW 30/A. After the registration of the case, as per the directions of senior officers further investigation of the case was taken up by Inspector Satyavir Singh Preet.
49. PW 31 is Dr. Upender Kishore, Associate Professor, V.M.M.C and Safdarjung Hospital. He conducted the postmortem on the dead body of Vivek Aggarwal (deceased). He proved on record his postmortem report as Ex. PW 31/A in which he opined that the cause of death in this case was axphyxia as a result of antemortem strangulation by ligature. He also deposed that he gave subsequent opinion regarding ligature material i.e scarf/muffler but he further deposed that it may be possible that Contd....
20the scarf was informally produced before him by the IO for seeking the verbal opinion. He identified the scarf Ex. P4 as the same which was shown to him by the IO and he had given his opinion.
50. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and incriminating evidence was put to them. Both the accused denied the same and stated that they are innocent and have been falsely implicated in this case. No evidence in defence was led by the accused persons.
51. I have heard Ld. APP for the state, Ms. Bindiya Malhotra, Ld. Amicus Curiae for the accused persons and have also gone through the records of the case.
52. It is submitted by the Ld. APP for the state that the case is based on circumstantial evidence and on the basis of the evidence recorded and the material on record, the prosecution has been able to prove the case against the accused persons, so the accused persons be convicted.
53. On the other hand, it is urged by the Ld. Amicus Curiae for the accused persons that both the accused have been falsely implicated. She further urged that the recoveries have been Contd....
21planted and it is further urged that PW 4 Sompal who is the witness of last seen is not trustworthy. It is further urged that no public witness has been joined by the IO at the time of recoveries.
54. The case of the prosecution is based on circumstantial evidence. The first circumstances on which the prosecution has relied upon is that the deceased and the accused persons were lastly seen in the MCD park by PW 4 Sompal who was working as Mali in the said park.
55. PW 4 Sompal has deposed that he was working as mali with the MCD and his duty hours were from 5:00 p.m to 1:00 a.m midnight. He further deposed that on 29012007, he came to the place of occurrence i.e the MCD park Vaishali at about 5:00 p.m and was sitting under the shed as its started drizzling at about 8 or 8:30 p.m. He further deposed that at about 10:00 p.m two boys with a lady entered the park and when he asked them the reason for their coming, they told him that they had come for a walk. He further deposed that when he told them it was odd hours then they left the park and proceeded towards Adharsheela school.
56. He further deposed that at about 12:30 a.m. he went to Contd....
22his house as his wife was not well and when he came to park he found the dead body of a person lying near the bench in the groove of the trees. He identified the dead body as that of the same person who had accompanied the accused persons. He had identified both the accused persons.
57. This witness was cross examined by the Ld. Amicus curiae for the accused and in his cross examination he stated that there was light in the shed where he was sitting. He confirmed in his cross examination that the accused persons alongwith the deceased came around 10 p.m. He further stated in his cross examination that on his objection accused persons and the deceased left the park. He further stated that they had stayed in the park for about 25 minutes and did not return in the park till 12:30 a.m. In his cross examination he stated that he had left the park at about 10:30 p.m whereas in his examination in chief he stated that he had left the park at about 12:30 a.m . The testimony of this witness is to the effect that he had seen the accused persons and the deceased together in the park at about 10:00 a.m and he has stood his ground in the cross examination to this effect. So the discrepancy in the time of his leaving the park is not of much relevance. In his cross examination he has Contd....
23further stated that he had reached the park at about 11:00 a.m in the next morning.
58. As per the testimony of PW 31 Dr. Upender Kishore who had conducted the postmortem on the dead body the time since death was 1/ ½ days. In the present case the dead body was found at about 9:00 a.m in Vaishali park and the postmortem was conducted on 31012007 at about 10:15 a.m. So if we go by the estimation of time given by the autopsy performing doctor, the death occurred some time in the night intervening 29012007 and 30012007.
59. As already discussed hereinabove, the deceased and the two accused were sighted by PW 4 at about 10:00 p.m and as per the postmortem report also the death has occurred in the intervening of 29012007 and 30012007. The police has seized the shoes of both the accused persons vide seizure memo Ex. PW 13/F and Ex. PW 13/G. The mud from the shoes was preserved and sent to FSL alongwith earth control taken from the Vaishali Park. The FSL result is Ex. PW 28/A and as per the FSL report exhibit 3 which is a pair of sports shoes having soil adhering to it and exhibit 4 which is a pair of other shoes having soil adhering to it matched with the exhibit 2 which is the Contd....
24earth control. So from this report it is clear that both the accused persons were present there in the park as stated by PW
4.
60. According to the case of the prosecution, victim Vivek Aggarwal was with the accused persons as he desired to have paid sex with the accused Salma. The perusal of the postmortem report which is Ex. PW 31/A shows that PW 31 Dr. Upemder Kishore who had conducted the postmortem handed over one condom which was found on the body of deceased to the police for examination. The examination report of the condom shows the presence of semen.
61. The crime team which had come at the spot had taken the photographs of the deceased and the perusal of the photographs exhibit PW 17/A 14, A13, A12, A10 shows that the deceased was lying in the half naked condition and the photograph Ex. PW 17/A 14 shows the accused wearing a condom which fact gets verified from the postmortem report which is Ex. PW 31/A.
62. Now the presence of the accused persons and the deceased in the park has been fortified by the testimony of PW 4 who has categorically stated that they all had come around 10:00 Contd....
25p.m. FSL report also confirms the presence of the accused persons in the park. As per the case of the prosecution, the deceased wanted to have paid sex with accused Salma and for this they were searching a place and they went inside the park and the photographs mentioned hereinabove clearly shows the presence of the deceased in the park with the preparation to have sex. So all the circumstances and the testimony of PW 4 which cannot be disbelieved clearly shows that both the accused persons and the deceased were together in the park before the death of Vivek Aggarwal and the condition in which the dead body was found lying rules out the possibility of anybody else coming in contact with deceased between 10:00 p.m and the time when the Vivek Aggarwal was killed. So in my opinion the prosecution has been able to prove that the deceased was lastly seen in the company of the accused persons.
63. The next circumstance against the accused persons is the recovery of the robbed articles of the deceased. According to the prosecution the deceased was robbed by accused Sudhir of his wrist watch make "Maxima Quartz" with golden chain and dial which he got recovered and he also got recovered one phone make NOKIA model 2310 with IMEI No. 354543012163433 which Contd....
26was purchased by accused Sudhir Kumar from J.P Telecom on 300120097 out of the amount of Rs. 3000/ which was robbed by him from the deceased.
64. Accused Salma has been charged for retaining the mobile phone make NOKIA model 2112 type RH 57ESN033/09349014 Cod 0517521IM2552, ESNHEX218EA796 belonging to deceased Vivek Aggarwal which she got recovered. Both the accused persons when arrested they made disclosure statements and got recovered the said articles.
65. PW 2 is Sh. Rajiv Kumar Goel, he has deposed that the deceased used to wear one wrist watch make Maxima Quartz of golden colour. He further deposed that neither the wrist watch nor the mobile phone was on the person of Vivek Aggarwal when the dead body was found. He had identified the wrist watch of Vivek Aggarwal in TIP proceedings which is Ex.P1. He also identified the mobile phone make NOKIA 2112 belonging to the deceased as Ex. P2.
66. He was cross examined and in his cross examination he stated that he does not have personal knowledge about the case. No other question was asked from this witness nor it was suggested to him that Ex. P1 and P2 did not belong to the Contd....
27deceased. So it has been established that the wrist watch of golden colour and Nokia 2112 mobile belonged to the deceased.
67. It is the case of the prosecution that the deceased was robbed of Rs. 3000/ and from this amount accused persons had purchased one mobile phone for a sum of Rs. 2950/ from PW 6. PW 6 has categorically stated that he had sold NOKIA 2310 for a sum of Rs. 2950/ and he had identified both the accused persons as the same persons who had purchased the mobile from his shop on 30012007. This witness also deposed that the purchaser had given him cash amount in denomination of Rs. 500/ (2 notes), Rs. 100/ (20 notes) amounting to Rs. 3000/ and he returned the balance amount of Rs. 50/ to the customer.
68. This part of his testimony has gone unrebutted and unchallenged. A suggestion has been given that they had not visited the shop and they had not purchased any mobile. So there is no reason to disbelieve this witness regarding the purchase of Nokia mobile phone by the accused persons on 30012007 for a sum of Rs. 2950/.
69. The accused persons were arrested on 122007, vide arrest memo Ex. PW 13/A and Ex. PW 13/B and their personal search was conducted vide personal search memo Ex. PW 13/C Contd....
28and Ex. PW 13/D. After the arrest, accused persons made their disclosure statements which are Ex. PW 13/E and Ex. PW 25/A. The witnesses of arrest, recoveries and recording of disclosure statements are PW 13, PW 25, and PW 30.
70. According to PW 13 on 122007, the police party consisting of SI Satya Prakash, SI Satender Dhull, ASI Gyan Veer, H.C. Joginder, Ct. Neeraj, Driver Ct. Rishi Raj, Inspector Preet Singh and herself reached Depali chowk at about 6:00 p.m. Secret informer met the IO and passed on some information to him. This witness has further deposed that the secret informer took them near red light of power house bus stand and on his instance one lady and one boy who were sitting on a rickshaw were apprehended. She correctly identified the apprehended persons as accused Salma and accused Sudhir. She further deposed that their disclosure statements were recorded. She further deposed that the IO had taken into possession the shoes of accused Salma and accused Sudhir vide seizure memo Ex. PW 13/F and Ex. PW 13/G.
71. She further deposed that IO had taken into possession one wrist watch from accused Sudhir vide seizure memo Ex. PW 13/L. She further deposed that accused Sudhir took out one Contd....
29mobile phone make NOKIA 2112 grey and white colour from the iron almirah lying in his tenanted room which was seized vide memo Ex. PW 13/I. She further deposed that one mobile phone NOKIA of grey and white colour was taken out by accused Salma from the almirah and she handed over the same to the IO which was seized by the IO vide memo Ex. PW 13/K.
72. She also deposed that one scarf was also produced by accused Sudhir which was seized by the IO vide seizure memo Ex. PW 13/J. This witness correctly identified the scarf and both the mobile phones. She also identified one pair of canvas shoes to be that of accused Salma. However, during the course of her examination in chief she has mentioned two mobile phones make NOKIA 2112 however she correctly identified both the mobile phones when they were shown to her but one of the mobile phone was make NOKIA 2310. To my mind this error of mentioning the same model Nos. of the mobile phones does not in any manner render her testimony doubtful.
73. This witness was cross examined by the Ld amicus curiae for the accused persons and she stated in her cross examination that in her presence IO had not asked any person to join the proceedings but she agreed to the preparation of Contd....
30documents and signing on them. She was cross examined at length by the Ld amicus curiae. In her cross examination she stated that the wrist watch was taken from the wrist of accused Salma whereas the case of the prosecution is that the wrist watch was in the hand of accused Sudhir Kumar who handed over the same to the IO. To my mind this omission on the part of this witness is not sufficient to discredit her entire testimony.
74. The other witness of arrest and recording of disclosure statement is PW 25 Inspector Satya Prakash. He also deposed on the lines of PW 13. According to this witness also at about 6 p.m secret informer had pointed towards the accused persons who were sitting in a rickshaw and they both were apprehended and arrested. He further deposed that the IO had taken into possession the shoes of accused Salma which she was wearing vide seizure memo Ex. PW 13/F. He further deposed that accused Sudhir had handed over a wrist watch stating it to be that of deceased Vivek which he got by committing his murder. This wrist watch was taken into possession vide memo Ex. PW 13/L. He has also deposed that accused Salma got recovered one mobile phone make NOKIA 2112 from her almirah and accused Sudhir got recovered one mobile phone make NOKIA Contd....
312310 stating to be purchased by him for Rs. 2950/ out of the looted amount of Rs. 3000/. He further deposed that accused Salma got recovered one scarf used in the murder of Vivek which was seized vide memo Ex. PW 13/J. He also deposed that the accused persons were taken to their room one by one and then they got the recoveries effected.
75. This witness was also cross examined but nothing material could be extracted to discredit his testimony. However, he stated in his cross examination that IO had not asked any neighbour to join the investigation. In his cross examination he has reasserted that accused Salma got recovered the mobile phone from the lower second shelf of almirah and accused Sudhir got recovered the mobile phone from the second shelf of almirah. He has corroborated the testimony of PW 13 as far as the recovery of mobile phones are concerned. However, there is some discrepancy in their statement with regard to the recovery of scarf which according to PW 13 was handed over by accused Sudhir and according to this witness it was got recovered by accused Salma. According to PW 13 golden wrist watch was handed over to the IO by accused Salma and according to this witness golden watch was handed over by accused Sudhri. I will Contd....
32be discussing as to whether these two contradictions in the testimony of these two witnesses would have bearing to the effect so as to doubt the recoveries.
76. PW 26 Inspector Satyavir Singh has also deposed on the lines of PW 13 and PW 25 as far as the recoveries of the mobile phones are concerned. So PW 13, PW 25 and PW 26 they all corroborated each other with regard to the recoveries of mobile phones and they have also correctly identified the mobile phones.
77. PW 26 has stated that the wrist watch make maxima quartz was in the possession of accused Sudhir which was seized at the time of arrest of the accused Sudhir. This gets corroboration from PW 25 and also from PW 30. On the point of recovery of Maxima quartz wrist watch, three witnesses PW 25, PW 26 and PW 30 have corroborated each other and they stated in tendom that the wrist watch was handed over by accused Sudhir after his arrest and only PW 13 has stated that the wrist watch was handed over by accused Salma To my mind this is a minor discrepancy on the part of PW 13 and it cannot be the basis to discredit the testimony of the other recovery witnesses.
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33
78. PW 13 has also faulted on the point of recovery of scarf which according to her was handed over by accused Sudhir whereas the other witnesses has stated that the scarf was handed over by accused Salma so it seems that due to some confusion it appears that this witness has inter changed the recovery of scarf and Maxima Quartrz wrist watch. Otherwise there is nothing in the testimony of the recovery witnesses to discredit them. As far as PW 30 is concerned though in his examination in chief he has stated that the mobile phones were got recovered by accused persons from the rooms but in his cross examination he stated that the recoveries were not effected in his presence and he went on to state that he was standing at the ground floor to ensure that the accused persons does not escape because the IO used to take one accused for the purpose of recovery and he had to guard the other accused on the ground floor. So from the examination in chief and cross examination of this witness it is crystal clear that the accused persons were arrested in his presence and there is no discrepancy as far as the arrest and recording of disclosure statement of accused persons is concerned. However, on the recovery point he has corroborated the testimony of other Contd....
34witnesses with regard to the recovery of wrist watch from accused Sudhir and only on the point of recovery of mobile phone it appears he has narrated whatever was going on at the spot of recovery at that time in his presence. Though he has clarified that the actual recoveries did not take place in his presence but since he was there he was aware about each and every fact which he narrated in his examination in chief. I do not find any reason to disbelieve this witness.
79. Accused persons have made their disclosure statements after their arrest. Disclosure statement of accused Salma is Ex. PW 13/E and disclosure statement of accused Sudhir is Ex. PW 25/A. In their disclosure statements they have narrated the entire sequence of crime but as per Section 27 of the Indian Evidence Act so much of the information which distinctly relate to the fact really thereby discovered is admissible. Accused Salma has stated in her disclosure statement Ex. PW 13/E that she had kept the mobile phone NOKIA after shutting it down in an iron alimrah in her room which she can get recovered and she can also get recovered NOKIA phone purchased by accused Sudhir from the iron almirah. Similarly, accused Sudhir Kumar also made a disclosure statement and stated that he purchased Contd....
35mobile phone NOKIA and kept it in an almirah in his room at Budh Vihar which he can get recovered.
80. So true to their disclosure statements both the accused persons got recovered the mobile phones which were identified by the witnesses and mobile phone NOKIA 2112 has also been identified by PW 24 Shri Harinder Singh who has categorically stated that this mobile phone was given by the company to deceased Vivek Aggarwal. As far as the recovery of wrist watch is concerned, the same was handed over by accused Sudhir to the police when he was apprehended and this wrist watch was also identified by PW 2 Sh. Rajiv Kumar Goel to be that of deceased Vivek Aggarwal. So the prosecution has been able to prove the recovery of the articles belonging to the deceased from the possession of accused persons after two days of the incident.
81. The prosecution has also been able to prove that the accused persons have looted an amount of Rs. 3000/ from the deceased from which they purchased a mobile phone make NOKIA 2310 for a sum of Rs. 2950/ which was got recovered by accused Sudhir after his arrest.
82. PW 24 Sh. Harinder Singh also deposed that on 29012007, Vivek Aggarwal (since deceased) had come to him Contd....
36and requested him to sanction a loan as his wife was pregnant and he was to get his wife medically checked. PW 24 further deposed that he had given him Rs. 3000/ as loan.
83. The prosecution has also examined Jai Prakash as PW 6 who deposed that he had sold the mobile phone NOKIA 2310 blue colour for a sum of Rs. 2950/ to the accused persons and had issued cash memo No. 266 dated 30012007. He identified the cash memo and also identified both the accused as the same persons who came to his shop on 30012007 and purchased the above said mobile hand set and on the purchase of the same they had made the above payment. Both the witnesses i.e. PW 6 and PW 24 were cross examined by the Ld. amicus curiae but nothing material could be extracted from their cross examination. So the prosecution has been able to prove that deceased Vivek Aggarwal was having Rs. 3000/ with him on 29012007, i.e. the date of incident which was looted by the accused persons from him and from that amount they purchased a mobile phone make NOKIA 2310 for a sum of Rs. 2950/.
84. It was also argued by the Ld. Amicus Curiae that no public witness was joined by the IO. No doubt it has come in the evidence of the witnesses who are police official that IO had not Contd....
37joined the public witnesses but it is also settled that the testimony of the official witnesses cannot be discarded if they are trustworthy. It is also a matter of common knowledge that the public witnesses seldom join the investigation. The conduct of the IO not asking public witnesses to join the investigation is no doubt a fault on his part but keeping in view the nature of the evidence and the circumstances of this case, it cannot be a ground on which the case of the prosecution can be thrown out.
85. So in view of the discussions hereinabove, I am of the opinion, that the prosecution has been able to prove beyond reasonable doubt that it was the accused persons who were living together committed the murder of deceased Vivek Aggarwal and robbed him of his wrist watch, mobile Phone make Nokia 2112 from him which they got recovered and also robbed Rs. 3000/ from which they purchased a mobile phone make NOKIA 2310 for a sum of Rs. 2950/. Since both the accused persons came together in the Vaishali park with deceased Vivek Aggarwal, committed his murder and robbed him of the above said articles and lateron they were arrested when they were found sitting together on a rickshaw. So it is clear that both the accused had shared common intention to commit the murder of Vivek Contd....
38Aggarwal and in furtherance of their common intention they also robbed him. Accordingly both the accused persons are held guilty and convicted U/s 302/392/34 IPC and also U/s 411 IPC as they both dishonestly retained the articles robbed from deceased Aggarwal knowing or having reason to believe the same to be stolen property obtained in the robbery and lateron also got recovered the same. Put up for arguments on the point of sentence on 180120012.
(Announced in the open Court on 11012012) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Contd....
39 IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE II, OUTER DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 66/10 FIR No. : 72/07 P.S. : Shalimar Bagh U/s : 302/394/411/34 IPC State Vs. 1. Salma W/o Mohd. Israfil Ansari R/o A1/4, PhaseI, Budh Vihar, Delhi. 2. Sudhir Kumar S/o Sh. Dev Narayan Yadav, R/o A1/4, PhaseI, Budh Vihar, Delhi. ORDER ON SENTENCE
1. I have heard Ld. APP for the State and Ms. Bindiya Malhotra, Ld. Amicus Curaie for the convicts on the point of sentence.
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40
2. It is submitted by the Ld. APP that the convicts deserve no leniency and the act of the convict calls for extreme penalty for death.
3. On the other hand, it is urged by Ms. Bindiya Malhotra, Ld. Amicus Curaie for the convicts that both the convicts are young and have a family to support and are the only bread earner in their family. She further urged that the case does not fall within the category of rarest of the rare cases and a lenient view be taken.
4. Convicts Salma and Sudhir Kumar have been convicted by me vide separate judgment dated 11012012, U/s 302/392/34 IPC and also U/s 411 IPC.
5. It is not a rarest of the rare case inviting imposition of capital punishment. I therefore sentence both the convicts namely Salma and Sudhir Kumar to undergo life imprisonment U/s 302/34 IPC and pay a fine of Rs. 5000/ each. They shall undergo Contd....
41rigorous imprisonment for three months each in case of default of payment of fine.
6. I further sentence both the convicts to undergo rigorous imprisonment for five years and pay a fine of Rs. 3000/ each U/s 392/34 IPC. They shall undergo rigorous imprisonment for two months each in case of default of payment of fine.
7. I further sentence both the convicts to undergo simple imprisonment for 3 years U/s 411 IPC.
8. All the sentences to run concurrently. Ordered accordingly. The benefit of section 428 Cr.P.C. be given to convicts. Copy of judgment and order on sentence be given to convicts free of cost. File be consigned to Record Room. (Announced in the open Court on 15022012) RAJNISH BHATNAGAR ADDL. SESSIONS JUDGEII OUTER DISTRICT, ROHINI COURTS, DELHI (Copy attached).
Contd....
42 Sessions Case No. : 66/10 FIR No. : 72/07 P.S. : Shalimar Bagh U/s : 302/394/411/34 IPC 15022012 Present : Ld. APP for the State Both the convicts produced from J.C.
Ms. Bindiya Malhotra, Ld. Amicus Curiae for the convicts. Vide separate order on sentence dictated and announced in the open Court today both the convicts are sentenced to undergo life imprisonment U/s 302/34 IPC and pay a fine of Rs. 5000/ each. They shall undergo rigorous imprisonment for three months each in case of default of payment of fine. Both the convicts are further sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs. 3000/ each U/s 392/34 IPC. They shall undergo rigorous imprisonment for two months each in case of default of payment of fine. Both the convicts are also sentenced to undergo simple imprisonment for 3 years U/s 411 IPC. All the sentences to run concurrently. Benefit of section 428 Cr.P.C be given to convicts. Copy of judgment and order on sentence be given to convicts free of costs. File be consigned to Record Room.
RAJNISH BHATNAGAR ADDL. SESSIONS JUDGEII OUTER DISTRICT, ROHINI COURTS, DELHI Contd....
43Contd....