Delhi District Court
State vs . Sandeep Tyagi & Anr. on 29 March, 2016
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWARKA COURTS:DELHI
(Sessions Case No. 62/11)
Unique ID case No.02405R0366032009
State Vs. Sandeep Tyagi & Anr.
FIR No. : 01/2008
U/s : 364A/302/120B IPC
P.S. : Chhawla
State Vs. 1. Sandeep Tyagi
S/o Sh. Chand Singh
R/o Village Rewala Khan Pur,
Najafgarh ,New Delhi.
Also at : Flat No. 807,
Sector16B, Pocket2,
CRPF Flats, Dwarka,
New Delhi.
2. Sri Om Tyagi
S/o Sh. Rohtash Tyagi
R/o Village Rewala Khan Pur,
Najafgarh, New Delhi
Date of institution of case13.02.2009
Date on which, judgment have been reserved10.03.2016
Date of pronouncement of judgment23.3.2016
S.C No. 62/11 1/73
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JUDGEMENT:
In the present case on 01.10.2008, on receipt of DD No. 3A regarding kidnapping, ASI Rajinder alongwith Ct. Balraj reached village Rewala Khan Pur, where complainant Sh. Dharambir Tyagi met them and got recorded his statement.
In his statement, complainant Sh. Dharambir Tyagi stated that he is an agriculturist and on that day i.e. 01.10.2008, his only son namely Sh. Sandeep Tyagi aged about 18 years, as usual, went to D29, Institutional Area, IITM College, Janak Puri, Delhi at about 7:00 AM and on the same day, in the evening at about 6:00 PM, he received a call on his Tata Walky No. 65248206 from mobile no. 9211961725 of his son Sandeep and he heard the voice of an unknown person, who threatened him that they had kidnapped his son Sandeep and if he wanted his wellbeing, a sum of Rs.40 lacs may be arranged. Thereafter, another call was received and the said person told that if he reported the matter to the police, they would kill his son. Complainant further stated that thereafter he inquired from the classfellow of his son namely Amit , who informed him that he had seen Sandeep at IITM Institute till 4:00 PM and thereafter he had also seen him at road in front of PS Hari Nagar at about 4:10 PM. Complainant also stated that his son was of a fair complexion and was 5' 6'' in height and he was wearing a blue jeans and red Tshirt and sports shoes and he believed that his son had been kidnapped for ransom and appropriate action may be taken.
On the basis of the above said statement of the complainant.Dharambir Tyagi, a rukka was prepared by ASI Rajinder and the same was sent to P.S. Chhawla through Ct. Balraj for the registration of the case and accordingly, the present case was registered vide FIR No.01/2008 at P.S Chhawla and the case was assigned to SI Zile Singh, for investigation.
During the investigation, SI Zile Singh got issued WT messages, S.C No. 62/11 2/73 3 informed MPS and got distributed Hue & Cry notices and he also recorded the statements of Sh. A.K. Gupta, Director, IITM, Janak Puri, New Delhi and Amit. On 04.10.2008, 06.10.2008, 07.10.2008, 08.10.2008, 09.10.2008 and 10.10.2008, Dharambir Singh received ransom calls on his Tata WLL No. 65248206 from mobile no. 9211961725 of his son Sandeep and he informed about the same to SI Zile Singh. Thereafter, on 16.10.2008, complainant Sh. Dharambir Singh again informed SI Zile Singh that he had received a threatening call on his Tata WLL No. 65248206 from a land line number 25380046 and that the Caller had demanded a ransom of Rs. 50 lacs in lieu of release of his son. During investigation, it was revealed that said land line number 25380046 was installed in front of PS Dabri and on inquiry from one Sumita Khosla, it was revealed that a boy aged 2530 years of whitish complexion had made a call from the said phone at about 6:00 PM.
Thereafter, the further investigation of the present case was assigned to Insp. Rishi Pal Rana as per the orders of the concerned ACP. During further investigation, complainant Sh. Dharambir Singh informed the IO that on 19.10.2008, he had again received a call on his Tata WLL No. 65248206 from mobile no. 9718644371 and on inquiry, it was revealed that the said mobile phone pertained to one Sh. Shambhu Nath, who was having an STD Booth and said Sh. Shambhu Nath informed the IO that a boy aged about 2526 years of fair complexion had made the said call and he can identify the said boy, if shown to him.
On 23.10.2008, complainant Sh. Dharambir Singh alongwith one Oma Nand came to the PS and informed the IO that he had received a call on his Tata WLL No. 65248206 from mobile no. 9711522743 and he had been threatened to arrange money and from the same mobile number, a call was also received on the mobile no. 9211646271 of Oma Nand and he was asked to talk to the complainant. During investigation, IO obtained the CDR of the said mobile phone no. 9711522743 S.C No. 62/11 3/73 4 and it was revealed that the mobile instrument in which the said SIM was being used, was having IMEI No. 352261016839730 and on inquiry from Vodafone company, it was revealed that prior to August, 2008, the said mobile instrument having IMEI No. 352261016839730 was being used for mobile no. 9873105567 and on investigation, it was revealed that the said mobile number was pertaining to one Ajay Tyagi, who on interrogation, revealed that the said instrument was being used by his younger brother namely Sandeep Tyagi. Thereafter, the said Sandeep Tyagi ( accused herein) was interrogated and he confessed his involvement as well as the involvement of his coaccused Sri Om Tyagi in the kidnapping of victim Sandeep Tyagi @ Sanju s/o Sh. Dharambir Tyagi on 01.10.2008 and he also disclosed that after kidnapping, said victim Sandeep Tyagi @ Sanju was killed by both of them and his dead body was thrown in a well in the field in front of Baba Amar Nath Mandir, Jhatikara Road. Accused Sri Om Tyagi was also arrested in this case and he also confessed his involvement and thereafter both the accused Sandeep Tyagi and Sri Om Tygi got recovered the dead body of Sandeep Tyagi @ Sanju from the above said well in the field.
In brief, case of the prosecution is that on or before 01.10.2008, both accused Sandeep Tyagi and Sri Om Tyagi entered into a criminal conspiracy to abduct Sandeep Tyagi @Sanju to demand ransom from his father Sh. Dharambir Tyagi and in pursuance to the said criminal conspiracy, both the accused Sandeep Tyagi and Sri Om Tyagi abducted victim Sandeep Tyagi @ Sanju on 01.10.2008 at about 6:00 PM from near Uttam Nagar Terminal, Delhi and thereafter they committed murder of the said victim Sandeep Tyagi @ Sanju.
2. On completion of the investigation, the charge sheet was filed. After committal, the arguments on the point of charge were heard and on the basis of the S.C No. 62/11 4/73 5 material on record, charge for committing the offences punishable u/s 120B IPC, u/s 364A r/w Section 120B IPC and u/s 302 r/w Section 120B IPC was framed against both the accused Sandeep Tyagi and Sri Om Tyagi by one of Ld.Predecessors of this court, to which both the said accused persons pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined forty two witnesses i.e PW1 to PW42.
PW1 ASI Suraj Bhan has recorded the formal FIR No. 01/2008 in this case on 01.10.2008 at PS Chhawla and he has proved carbon copy of the said FIR as Ex. PW1/A and his endorsement on the rukka as Ex. PW1/B. PW1 has also proved the true copy of DD No. 3A dated 01.10.2008 as Ex. PW1/C. PW2 Ct. Hardeep Singh has prepared the scaled site plan at the instance of the IO and he has proved the said scaled site plan as Ex. PW2/A. PW3 Rajita, Branch Incharge Muthoot Finance deposed that on 14.07.2008, Sri Om Tyagi had taken a loan Rs. 79,600/ from the bank against pledge of gold jewelery and PW3 has proved the loan documents in this regard as Ex. PW3/1 to Ex. PW3/3 and stated that the said documents were seized by the police vide memo Ex. PW3/A. PW3 also stated that Sri Om Tyagi had not repaid the said loan amount as yet.
PW4 Sh. A.K. Gupta, Director IITM College, Janak Puri deposed that deceased Sandeep Tyagi S/o Sh. Dharambir Tyagi was studying at IITM in BBA Ist Year, Section 1D and on 02.10.2008, they came to know that he had been kidnapped and after verifying, he issued the letter Ex. PW4/A certifying that Sandeep Tyagi was present in the institute and attended the classes from 10:00 AM to 4:00 PM on 01.10.2008.
S.C No. 62/11 5/73 6PW5 Ms. Sumita Khosla has been running an STD Booth at Dabri Mor from where accused Sandeep Tyagi is alleged to have made a call and prosecution is relying upon her testimony to prove its case on record.
PW6 Sh. Vidya Bhushan deposed that car bearing no. DL 9 CS 2813 was registered in his name and the said car was released to him on Superdari by the orders of the Court.
PW7 Ct. Balraj deposed that on 01.10.2008, on receipt of DD No. 3, he alongwith ASI Rajinder Singh reached village Rewala Khan Pur, where complainant Sh. Dharambir Singh met them and his statement was recorded and ASI Rajinder Singh handed over to him the rukka for registration of the FIR and he got the present FIR registered at PS and came back to the spot and handed over the same to the abovesaid ASI.
PW8 Amit deposed that he was studying at IITM, Janak Puri and on 01.10.2008 after the classes were over at 4:00 PM, he went to his friends and Sandeep Tyagi had left earlier. He further deposed that when he reached the bus stand, Sandeep Tyagi was already present there and he boarded the bus route no. 879, while Sandeep Tyagi remained at the bus stand. PW8 deposed that in the night he received a phone call from the father of Sandeep and told him that Sandeep had attended the college and had left the college at 4:00 PM. He also stated that the name of the father of Sandeep was Sh. Dharambir.
PW9 Sh. Shambhu Nath has been running a PCO at Mahavir Enclave from where accused Sandeep Tyagi is alleged to have made a call and prosecution is relying upon his testimony to prove its case on record.
PW10 Sh. Surender has resiled from his earlier statement and does not support the case of the prosecution.
PW11 Sh. Oma Nand deposed that the number of his mobile phone was S.C No. 62/11 6/73 7 9211646271 and on 23.10.2008 he received a phone call from a mobile number, the number whereof he does not remember, at about 8:45 AM and he was asked whether he knew Dharambir or not and he replied that he knew him and no other talk took place. He further stated that he received 5 or 6 calls one after the another from the same mobile. Thereafter, this witness i.e PW11 was declared hostile and was cross examined by the Ld. Addl. PP.
PW12 Sh. Ravinder Tyagi deposed that the number of his mobile phone was 9211642197 and on 23.10.2008 he received a phone call between 8:00 and 9:00 PM from a number, which he does not remember and he volunteered to state that the number was mentioned in the report lodged by him with the police and the phone was received to the effect that Caller wanted to talk to Dharambir and he told him that he cannot call Dharambir at that time and thereafter phone was disconnected. PW12 further deposed that he received the phone call for the second time and was again asked to call Dharambir and he again told the same thing and the phone was disconnected and thereafter he switched off his telephone and went to sleep. Thereafter, this witness i.e PW12 was declared hostile and was cross examined by the Ld. Addl. PP.
PW13 Sh. Siya Nand Tyagi deposed that on 25.10.2008, he identified the dead body of Sanju and reference thereto is in form no. 25.35 and the same was Mark13/A. PW13 further deposed that he also identified the dead body of Sanju at mortuary vide memo Ex. PW13/B and after postmortem, the dead body was handed over to him and Dharambir vide memo Ex. PW13/C. PW14 Sh. Sonu had recorded the voice of accused Sandeep during investigation and prosecution is relying upon his testimony to prove its case on record.
PW15 Sh. Sushil Tyagi is the nephew of the complainant and the S.C No. 62/11 7/73 8 prosecution is also relying upon his testimony to prove its case on record.
PW16 Sh. Brijesh Tyagi is a witness to the recovery of the dead body of deceased Sandeep @ Sanju from a well in the field near Jhatikara Road and prosecution is relying upon his testimony to prove its case on record.
PW17 Sh. Dharambir Tyagi is the complainant in this case and prosecution is also relying upon his testimony to prove its case on record.
PW18 Sh. Yogesh Tyagi deposed that he knew Dharambir Tyagi, who is a resident of their village and he had a son by the name of Sandeep Tyagi, who was kidnapped on 01.10.2008. PW18 further deposed that Dharambir was possessing a Tata Mobile phone no. 9211967125 on which he had also talked to him. PW18 also deposed that both the accused present in the court were known to him as they belonged to his village.
PW19 Sh. Rajesh Tyagi deposed that he knew Dharambir, who is a resident of their village and he had three children out of which one was son Sandeep, who was kidnapped on 01.10.2008. PW19 further deposed that Dharambir was having a mobile phone no. 9211967125. PW19 also deposed that he knew both the accused persons present in the court, being from their village and he also stated that both the accused persons mostly used to remain together and were friends.
PW20 Ct. Dinesh Kumar deposed that on 26.10.2008 on the instructions of the IO, he went to DDU hospital, where postmortem on the dead body of deceased Sandeep was conducted and after postmortem, two sealed pullandas alongwith two sample seals were seized by the IO vide memo Ex. PW20/1. He further deposed that after postmortem, dead body of deceased was handed over to his father vide receipt Ex. PW13/C. PW20 deposed that on 04.12.2008, he had taken samples to the FSL and after depositing the same, he brought receipt and handed over the same to MHC (M) and he has proved the forwarding letters as Ex. PW20/2 and Ex.
S.C No. 62/11 8/73 9PW20/3. PW20 also deposed that on 11.12.2008, one Sonu came from Najafgarh with one mini digital cassette and two CDs to the police station and the same were seized by the IO vide memo Ex. PW14/A. PW21 Sh. Naresh Kumar, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi had examined the vehicle bearing registration no. DL 9 CS 2813 ( WagonR) on 14.11.2008 at the request of the IO and he has proved his report in this regard as Ex. PW21/A and stated that the said report was sent vide forwarding letter Ex. PW21/B. PW22 Ct. Praveen Kumar deposed that on 25.10.2008, he alongwith crime team reached near Baba Amar Dass Temple, Jhatikara Road, where Insp. Rishipal met him and two persons in muffled face were in his custody and at that time, a body of the deceased was taken out from the well and the photographs were taken by him. He has also taken photographs of two muffled face persons and he has proved the said 21 photographs as Ex. PW22/1 to Ex. PW22/21 and the negative thereof as Ex. PW22/A. PW23 Sh. Bindeshwari, Record Keeper from Dabri Telephone Exchange produced the summoned record and has proved copy of the application received in the office pertaining to shifting of telephone no. 5519603 from the residence of Rajeev Khosla to Dabri Mor as Ex. PW23/A and has also proved copy of another handwritten application as Ex. PW23/B. PW23 further deposed that the changed and shifted telephone number as per record was 5040027 installed at Dabri Mor and documents regarding the same were Ex. PW22/C. PW23 deposed that due to change of technology and cut over, the said number got changed to 25380046. PW23 has also proved copy of agreement between Rajeev Khosla and MTNL as Ex. PW23/D. PW24 Sh. Rajesh Kumar Goyal, Ld. ACMM, Dwarka Courts deposed S.C No. 62/11 9/73 10 that on 31.10.2008, an application was moved for TIP of accused Sandeep Tyagi and the said application was Ex. PW24/A and he recorded TIP proceedings in respect of accused Sandeep Tyagi, which were Ex. PW24/B and therein accused Sandeep Tyagi made a statement that he did not want to participate in the TIP proceedings as he had been seen by the witnesses at PS. PW25 HC Anil Kumar had joined the investigation in this case alongwith IO Insp. Rana while both the accused Sandeep and Sri Om Tyagi were arrested and he was also present at the time of recovery of dead body from the well in the field at Jhatikara Road at the instance of the accused persons. PW25 has also joined the investigation at the time of other recoveries at the instance of accused persons and the prosecution is also relying upon his testimony to prove its case on record.
PW26 Sh. S.K. Sahni deposed that he was having a repairing shop of electronic items at Tilak Nagar and on 23.10.2008, one Sandeep Tyagi purchased a SIM card of Vodafone bearing no. 9711522743 and stated that he cannot identify the said Sandeep Tyagi as considerable period has lapsed. PW26 further deposed that police officials inquired from him and he told the aforesaid facts to them and police officials prepared a document which was PW26/1 PW27 Dr. B.N. Mishra has conducted the postmortem on the dead body of deceased Sandeep Tyagi s/o Sh. Dharambir Tyagi and has proved the detailed postmortem report in this regard as Ex. PW27/5. PW27 also deposed that pair of shoes Ex. PW17/A2, red colour Tshirt Ex. PW17/A3 and blue colour jeans Ex. PW17/A4 were the same which were found with the dead body.
PW28 Sh. M.N. Vijayan, Nodal Officer, Tata Tele Services Ltd produced the original Customer Application Form No. 9211961725 and stated that the said connection was issued in the name of one Heera Lal on 14.02.2008 and he S.C No. 62/11 10/73 11 has proved the said CAF application alongwith photocopy of the ID as Ex. PW28/1. PW28 has further proved the call detail record of mobile phone no. 9211961725 for the period from 25.09.2008 to 23.01.2009 as Ex. PW28/2 and he has also proved the Cell ID chart covering all the towers as Ex. PW28/3. PW28 deposed that land line wireless telephone no. 55248206 was registered in the name of Dharambir of Rewala Khan Pur, Delhi and he has proved the copy of the original application alogwith ID proof pertaining to the same vide Ex. PW28/4. He also stated that the initial digit of the above said number was changed from 5 to 6 and thus it was 65248206 in the year 2006. PW28 has further proved the call detail record of the said telephone phone no. 01165248206 for the period from 01.09.2008 to 24.01.2008 as Ex. PW28/5 and he has also proved the certificate u/s 65B of Indian Evidence Act in respect of both the aforesaid telephones i.e. 9211961725 and 01165248206 as Ex. PW28/6.
PW29 Ct. Jasbir Budhwal deposed that on 25.11.2008, Insp. Rishipal Rana gave him a letter to go to FSL, Rohini and to collect report from there and accordingly he collected the said report and handed over the same to Insp. Rishipal Rana.
PW30 SI Kishore Pandey deposed that on 14.11.2008, he alongwith Insp. Rishipal Singh, IO had taken out vehicle no. DL 9 CS 2813 make WaganR from malkhana and went in the said vehicle to FSL, Rohini, where it was examined by Sh. Naresh Kumar Scientific Officer and blood stained piece of carpet was seized as well as blood found between driver and rear seat at three places were lifted and all these articles were taken into possession vide memo Ex. PW30/1. PW30 further deposed that on 04.12.2008, he alongwith Insp. Rishipal had again gone to FSL, Delhi, where complainant Dharambir and his wife Smt. Munesh Devi were called for the purpose of obtaining blood samples for DNA testing and the said samples were taken and were retained by the FSL for purpose of DNA testing.
S.C No. 62/11 11/73 12PW31 Sh.R.K. Singh, Nodal Officer, Bharti Airtel Ltd produced the summoned record regarding mobile no. 9871045770 and deposed that the said mobile was registered in the name of Sri Om Tyagi and C.A Form in this regard as well as copy of DL attached therewith were Ex. PW31/1 and Ex. PW31/2. PW31 further deposed that the said mobile phone number was activated on 25.02.2007 as mentioned in the internal mail communication and he has proved the copies thereof as Ex. PW31/3. PW31 has proved the call detail report in respect of the above said mobile phone no. 9871045770, its Cell ID chart and the certificate u/s 65B of Indian Evidence Act as Ex. PW31/4, Ex. PW31/5 and Ex. PW31/6.
PW32 Sh. Surender Kumar, Asstt. Nodal Officer, Idea Cellular Ltd produced the original Customer Application Form in respect of mobile no. 9718644371 and deposed that the said mobile connection was issued in the name of one Sh. Shambhu Nath and he has proved the Customer Application Form alongwith copy of the ID in respect thereof as Ex. PW32/1.
PW33 SI Rajinder Singh deposed that on 01.10.2008 on receipt of DD No. 3A, he alongwith Ct. Balraj went to the spot, where he recorded the statement of Sh. Dharambir Tyagi which was Ex. PW17/1 and prepared a rukka and sent the same to the PS through Ct. Balraj for registration of FIR. He also deposed that case related to PS Chhawla and on that day PS Chhawla and PS Najafgarh were operating from the same premises/building and PS Chhawla had started functioning on that day i.e. 01.10.2008.
PW34 HC Ajmer Singh was posted as MHC (M) at PS Chhawla and he deposed that on 24.10.2008, various articles mentioned in the seizure memo were deposited in the malkhana vide entry no. 14/16/17/43/72 in register no. 18 and he has proved the copy of the said entry as Ex. PW34/1. He further deposed that on 25.10.2008, WaganR car bearing no. DL 9 CS 2813 and motorcycle no. DL 4 SBK S.C No. 62/11 12/73 13 7066 and another motorcycle bearing no. DL 4 S AQ 8517 were deposited in the malkhana vide entries no. 16//14/17/43 in register no. 18 and he has proved the copy of the said entries as Ex. PW34/2, Ex. PW34/3 and Ex. PW34/4 respectively. PW34 deposed that on the same day i.e. 25.10.2008, earth control, blood soaked earth, two mobile phones make Nokia 2600 C2 and Tata Indicom 2905, personal search articles of Sri Om Tyagi and Sandeep Tyagi , one bag and its articles were deposited in the malkhana vide entry no. 16//14/17/43 in register no. 18 and he has proved the copy of the said entries as Ex. PW34/5 to Ex. PW34/11 respectively. PW34 further deposed that on 26.10.2008, three sealed pullandas and two sample seals, cloth pullanda and sternum bone pullanda were deposited in the malkhana vide entry no. 17/16/14/43 in register no. 18 and he has proved the copy of the said entry as Ex. PW34/12. PW34 deposed that on 14.11.2008 and 11.12.2008, a sealed pullanda having blood stained carpet and blood gauze cloth taken from Wagan R car and two mini digital cassettes and CDs were deposited in the malkhana vide entry no. 43/14/16/17/72 and 72/14/16/17/43 in register no. 18 and he has proved the copy of the said entries as Ex. PW34/13 and Ex. PW34/14 respectively. He has also proved the above said register as Ex. PW34/15. PW34 further deposed that on 18.12.2008, the mobile charger and the memory card were sent to CFSL, CBI CGO Complex vide RC No. 12/21/08 and he has proved the copy of the RC as Ex. PW34/16. PW34 deposed that on 14.11.2008, Wagon R car bearing no. DL 9 CS 2813 was sent to FSL, Rohini vide RC No.2/21/08 and he has proved the copy of the RC as Ex. PW34/17. PW34 also deposed that motorcycles no. DL 4 SBK 7066 and DL 4 SAQ 8517 were released on Superdari by order of the court.
PW35 Sh. Deepak, Nodal Officer, Vodafone Mobile Services Ltd produced the summoned record pertaining to vodafone mobile phone no. 9873105567 issued in the name of Ajay Tyagi and has proved its customer application form, call S.C No. 62/11 13/73 14 detail record for the period from 01.08.2008 to 24.10.2008, certificate u/s 65B of Indian Evidence Act and Cell ID chart in respect thereof as Ex. PW35/1, Ex. PW35/2, Ex. PW35/3 and Ex. PW35/4 respectively. PW35 has also produced the summoned record pertaining to vodafone mobile phone no. 9711522743 issued in the name of one Rajbir and has proved its customer application form, call detail record for the period from 01.09.2008 to 24.10.2008 and certificate u/s 65B of Indian Evidence Act in respect thereof as Ex. PW35/5, Ex. PW35/6 and Ex. PW35/7 respectively.
PW36 ASI Jagbir had joined the investigation in this case alongwith IO Insp. Rana while both accused Sandeep and Sri Om Tyagi were arrested and he was also present at the time of recovery of dead body from the well in the field at Jhatikara Road at the instance of the accused persons. PW36 has also joined the investigation at the time of other recoveries at the instance of accused persons and the prosecution is relying upon his testimony to prove its case on record.
PW37 SI (Retd.) Zile Singh was the initial IO and he carried out the investigation in this case till the time, the further investigation of the case was assigned to Insp. Rishipal Singh and he handed over all the documents, statements of witnesses and case diary of this case to Insp. Rishipal Singh on 16.10.2008 and stated that thereafter he was not associated with the investigation of this case.
PW38 Dr. Rajinder Singh, Principal Scientific Officer, CFSL, New Delhi had examined the specimen voice sample of accused Sandeep Tyagi with the questioned voice recording seized in this case and he has proved the transcript of specimen voice available in the judicial file as Ex. PW38/B and the transcript of questioned voice copy as Ex. PW38/C and stated that Ex. PW38/C is not the complete transcript of the conversation contained in the memory card Ex. PW15/2. PW38 has also proved his report prepared in the laboratory after examination as Ex.
S.C No. 62/11 14/73 15PW38//D. PW39 Ct. Satyavir deposed that on 01.11.2008, he alongwith Ct. Anil and Insp. Rishipal Singh took accused Sandeep Tyagi and Sri Om Tyagi from lockup at PS Najafgarh to Kakrola Mor Ganda Nala, where both accused pointed out the place, where they threw the SIM card and mobile phone belonging to the deceased vide pointing out memo Ex. PW25/C1.
PW40 SI Gyanender deposed that 25.10.2008 he was posted in Mobile Crime Team and on that day, he reached a field near Jhatikara Road and there was a Mandir nearby and he found Insp. Rishipal, two accused in muffled face and other police staff there and at the spot he prepared the crime report which was Ex. PW40/1.
PW41 Sh. A.K. Srivastava, Dy. Director (Biology), FSL deposed that he compared the forensic sample deposited in this case at FSL with the blood sample of Sh. Dharambir and Smt. Munesh Devi for DNA profiling and he has proved his report in this regard as Ex. PW41/1 and annexure A to the said report as Ex. PW41/2. PW41 has also proved his report bearing no. 2008/B4703 dated 26.03.2009 as well as the serological report dated 26.03.2009 as Ex. PW41/3 and Ex. PW41/4 respectively.
PW42 Insp. Rishipal Singh is the IO and he carried out most of the investigation in this case and stated that after completion of the investigation, he filed the charge sheet in the court.
4. After recording of prosecution evidence, statement of both the accused Sandeep Tyagi and Sri Om Tyagi u/s 313 Cr. P.C were recorded by the Ld.Predecessor of this court, wherein all the incriminating evidence was put to the accused persons, which they denied as incorrect. Both accused claimed to be innocent S.C No. 62/11 15/73 16 and stated that they have been falsely implicated in this case. They also stated that they wanted to lead evidence in their defence.
5. In their DE, accused persons have examined DW1 Ms. Anju and DW2 Sh. Mulesh Tyagi.
6. I have heard the arguments at length put forward by Ld. Spl. PP and Ld. defence counsels for the accused persons and have carefully gone through the record of the case.
7. It has been submitted by Ld. Spl. PP that in view of the evidence and material brought on record, the prosecution has been successful in proving on record the guilt of both the accused beyond the reasonable doubt. It is further submitted that the land of the complainantSh. Dharambir Singh was sold for a consideration of Rs.7.7 crores and this fact was known to entire villagers including both the accused and hence the accused persons entered into a criminal conspiracy to kidnap the son of the complainant for ransom as they were under the financial burden on account of loans availed by them and as well as vehicles purchased by them. It is submitted that the complainant has received the ransom calls from the kidnappers in this case and those calls were recorded and during the investigation, voice in the said recorded calls was found to be that of accusedSandeep Tyagi and the making of the said calls is also reflected from the Call Details Record of mobiles of accused persons. It is further submitted that the calls regarding kidnapping of son of the complainant were also received by PW11 Oma Nand Tyagi and PW12 Ravinder Tyagi and they also informed in this regard to the complainant as well as to the IO and from the Call Details Record of the said PW11 & PW12, it is evident that the said calls were also S.C No. 62/11 16/73 17 made by the accused. It is submitted that the above said recorded voice of the kidnappers were got compared with the specimen voice of accused Sandeep Tyagi and in this respect, PW38 Dr. Rajinder Singh, Principal Scientific Officer, CFSL, New Delhi has given his report that both the voices i.e. question voice and specimen voice were of the same person.
It has been further submitted that the perusal of print out of the mobile no. 9873105567 Ex. PW35/2 shows that eleven calls were made between the mobile number of accused Sri Om Tyagi bearing no. 9250448209 and accused Sandeep Tyagi bearing mobile no. 9873105567 on 01.10.2008 i.e. on the day of incident. It is submitted that out of which eight calls were outgoing from the mobile of accused Sandeep Tyagi and three calls were incoming from the mobile of Sri Om Tyagi mentioned above. It is further submitted that on 01.10.2008 between 14:24:27 to 17:45:49, seven outgoing calls were made by accused Sandeep Tyagi and after 17:45:49 there was one outgoing call at 18:19:36 from this mobile number of accused Sandeep Tyagi and this call between both the accused persons was after first ransom call on 01.10.2008 by the kidnapper to the complainant and the time of kidnapping and murder was between 17:45:49 and 18:19:36. It is submitted that the first ransom call at TATA Walky number of Sh. Dharambir Tyagi was made from the mobile of his son at 6:11 PM on 01.10.2008 and perusal of print out of mobile no. 9873105567 Ex. PW35/2 shows that from 01.10.2008 to 06.10.2008, frequency of calls was higher than the other date (s) i.e. between 06.10.2008 to 23.10.2008 because the police became more alert and according to the conversation on record, the kidnapper was aware about the contact of the complainant (PW17) with the police and also about the alertness of police and since 06.10.2008 accused Sri Om Tyagi minimized the use of his mobile SIM No. 9250448209 and started using another SIM no. 9871045770. It is further submitted that as from 06.10.2008, PW15 started S.C No. 62/11 17/73 18 recording of ransom calls made by the complainant and it also transpired from the print out that the incoming calls of Sri Om Tyagi in Ex. PW35/2 at the mobile of accused Sandeep Tyagi were reduced after 06.10.2008 and it was because Sri Om Tyagi was residing in the village of the complainant and he was aware of day to day progress of the case by the police or inmates of the deceased. It is further submitted that it transpired from the print out that from 16.10.2008 when accused Sandeep Tyagi started calling from PCO (Sambhu and Sumita Khosla on 16.10.2008 and 19.10.2008), accused Sri Om Tyagi minimized his calls to accused Sandeep Tyagi as he was aware about the alertness of the police and the complainant.
It has been submitted that one of the important circumstance, which connects the accused persons with the crime is the fact that they got recovered the dead body of deceased Sandeep @ Sanju from a well in the fields near Jhatikara Road near Baba Amar Dass Mandir and in addition to this, accused persons also got recovered a bag, Icard, three library cards, wallet with papers, register, broken scale, two pens and gum stick of the deceased and recovery of the above said dead body as well as other articles of the deceased at the instance of the accused persons clearly shows the implication of the accused persons in the commission of offence in this case. It is further submitted that the case of the prosecution is based upon the circumstantial evidence and all the circumstances brought on record by the prosecution were incriminating qua the accused persons and the said circumstances as well as recovery at the instance of accused persons do not leave any element of doubt regarding the involvement of the accused in the commission of the crime in this case. It is submitted that the circumstantial evidence brought on record by the prosecution was of conclusive nature and the chain of the circumstances was complete and it did not leave any doubt that the offences in this case were committed by the accused persons. It is further submitted that from material on record, it has S.C No. 62/11 18/73 19 been established by the prosecution that murder of son of the complainant was committed by the accused persons for the purpose of ransom as they were in dire need of money on account of their financial burden due to loans availed by them as well as the vehicles purchased by them. It is submitted that prosecution has been successful in proving on record that on or before 01.10.2008, both accused Sandeep Tyagi and Sri Om Tyagi entered into a criminal conspiracy to abduct Sandeep Tyagi @Sanju to demand ransom from his father Sh. Dharambir Tyagi and in pursuance to the said criminal conspiracy, both accused Sandeep Tyagi and Sri Om Tyagi abducted victim Sandeep Tyagi @ Sanju on 01.10.2008 at about 6:00 PM from near Uttam Nagar Terminal, Delhi and thereafter they committed murder of the said victim Sandeep Tyagi @ Sanju. Ld. Spl. PP also submitted that in view of the evidence and material brought on record by the prosecution, the guilt of both the accused have been proved beyond the reasonable doubts and he prayed that both the accused Sandeep Tyagi and Sri Om Tyagi may be convicted of the charged offences.
In support of his contentions, Ld. Spl. PP for the State has relied upon the case law cited as 1981 Crl. L.J. 714, 1998 Crl.L.J.1553 , (2005) II SCC 600, 2009 Crl. L.J.410, 2007 Crl.L.J 1792, 1968 Crl.L.J. 1378, AIR 1972 SC 975, 2012 (2) JCC 935, IV (1999) CCR 344 (SC), 1978 Crl.L.J. 766, 1977 Crl. L.J 410, III (2014) CCR 98 (SC), AIR 1979 SC 1234, 1996 Crl.L.J 2448, V(2001) SLT 860, 1968 Crl.L.J 103, AIR 1973 SC 2407 and III(2015)CCR 254 (SC).
8. On the other hand, it has been submitted by the Ld. defence counsel for accused Sandeep Tyagi that the prosecution has miserably failed to prove the guilt of the accused beyond the reasonable doubts. It is further submitted that accused was innocent and have been falsely implicated in this case, although he has nothing to do S.C No. 62/11 19/73 20 with the offences alleged in the instant case. It is submitted that the present case is based solely on circumstantial evidence and chain of circumstances alongwith motive are required to be proved by the prosecution beyond reasonable doubt, however the prosecution has failed to do so. It is further submitted that in a case based on circumstantial evidence, motive plays a vital role and the prosecution as per the charge sheet, motive behind the commission of offence was that accused Sandeep Tyagi have availed loan from his relatives and friends at the time of marriage and also purchased one car in the name of his uncle Vidya Bhushan and one motorcycle in the name of his another uncle Krishan and the said relatives and friends were putting pressure upon the accused to return the loan for which he committed the present offence. It is submitted that the prosecution was required to prove the said motive on record, however except filing documents of loan of accused Sri Om Tyagi, the prosecution has not led any evidence to prove the said motive and the investigating agency did not even try to investigate qua the same, which is clearly reflecting in the charge sheet which is totally silent about the same. It is further submitted that while leading the evidence in the court, the prosecution has tried to portray a totally different picture by bringing in a story that the complainant had sold land for crores and the accused were having the knowledge about the same and for the said reason they committed the present offence, however in the statement of the complainant u/s 161 Cr. PC, there is no mentioning about the sale of any land which clearly shows that the prosecution has tried to bring the motive into picture after filing of the charge sheet which is a after thought and as such the prosecution has miserably failed to prove any motive for committing of the alleged offence by the accused in this case.
It has been further submitted on behalf of accused Sandeep Tyagi that accused persons were apprehended in the night intervening of 24/25.10.2008 at S.C No. 62/11 20/73 21 3:00 PM and the arrest memo Ex. PW25/A qua accused Sandeep Tyagi shows that he was arrested on 25.10.2008 at 3:00 PM and the said arrest of accused has been shown after the recovery of the dead body allegedly at his instance in pursuance of the disclosure statement made by him. It is submitted that the said alleged disclosure statement was recorded by the IO prior to the arrest of accused and accordingly the same was inadmissible and no recovery effected on the basis of such disclosure statement can be treated as legally admissible. It is further submitted that the DD No. 9 was got recorded by the IO at 9:25 AM but the same does not find mention of the name of either of the accused persons which clearly shows that they were not with police till that time and police have fabricated the whole story later on and created evidence to falsely implicate them and the said DD entry also do not find mention of the names of two important witnesses i.e. PW25 Ct. Anil and PW36 ASI Jagbir which again creates doubt about the story being concocted by the prosecution. It is submitted that the prosecution is trying to connect the accused on the basis of his call details with the phone installed at the house of the deceased and the coaccused, however none of the CDR of mobile number of the accused Sandeep Tyagi is showing that he was ever present at the place of alleged abduction or at the place of recovery of the dead body as none of the relevant Nodal Officers have been examined to prove the same. It is further submitted that the prosecution has failed to explain as to why both accused talked to each other on phone when according to the case of the prosecution, both the accused persons were present together while committing the alleged offence. It is also submitted that call details record and other documents got proved by the prosecution by the Nodal Officers were inadmissible as the provisions of section 65B of Indian Evidence Act were not complied with in this case. It is also submitted that duration of the call details in the CDR's is not matching with the duration of the recorded conversation which were sent to FSL for comparison and S.C No. 62/11 21/73 22 this also create doubt in the case of the prosecution.
It has been further submitted that the disclosure statement of accused recorded in the present case were not in conformity with the law of the land as the same have been admittedly recorded prior to the arrest of the accused and it has been stated by the IO during his evidence that at the time of the recording the said disclosure statement, accused was only suspect and it has not been explained by the prosecution as to what was the need for recording of the disclosure statement, when the accused persons were only suspect in the case at the relevant time and in the absence of recording of the disclosure statement in accordance with the law of the land, any recovery effected on the basis of the same, cannot be taken into consideration. It is further submitted that admittedly during recording of the disclosure statement, public persons were present including the complainant, however they were not made witnesses to the same which again make the alleged disclosure statement by the accused doubtful. It is submitted that as per case of the prosecution, car bearing no. DL 9 SC 2813 WagonR was allegedly used in the commission of crime and owner of the said car namely Sh. Vidya Bhushan was examined as PW6 by the prosecution and the said witness has not supported the case of the prosecution that the car was in possession of accused Sandeep Tyagi during the relevant period and the Ld. Spl. PP also chose not to cross examine the witness on this material aspect, which again is fatal to the case of the prosecution. It is further submitted that the pieces of the carpet of the above said car were seized and were sent for detection of blood to the FSL but no blood was detected on the carpet of the car.
It has been submitted that as per prosecution case, the driving licence of accused Sandeep Tyagi and DTC bus pass of the deceased were allegedly recovered at the instance of accused Sri Om Tyagi were not sealed by the IO either at the spot or thereafter, although all other articles recovered alongwith them were S.C No. 62/11 22/73 23 sealed and this clearly shows the manipulation and implies that the same have been planted so as to connect the accused with the alleged commission of offence in this case. It is further submitted that the condition of the DTC bus pass and driving licence which are available on record in unsealed condition reflects that the same have never remained in open condition as their texture and shine have not changed, although as per prosecution case, they remained in open for many days and there should have been the signs of the effect of weather upon the same. It is submitted that the comparison of the sample voice of accused Sandeep Tyagi with the alleged voice of the kidnapper recorded by the father of the deceased was illegal as no permission was taken prior to getting the sample voice of accused recorded. It is further submitted that at the time of alleged recording of the voice sample, accused Sandeep Tyagi was kept in a muffled face during the period of videography done by PW14 Sonu and as such it could not ascertained whether he was speaking anything during the video recording or not. It is submitted that FSL report regarding the voice sample is not of much use to the prosecution as the concerned witness i.e PW38 Dr. Rajinder Singh, Principal Scientific Officer, who compared the specimen and questioned voice, has opined in his report that the specimen voice and the questioned voice were probably of the same person i.e. accused Sandeep Tyagi which implies that even according to him, there was no complete/ positive identification of the voice sample with the alleged recording of the voice of kidnapper. It has been submitted that the prosecution has failed to prove its case on record beyond the reasonable doubts and it has been prayed that accusedSandeep Tyagi may be acquitted of the charged offences.
9. Further, it has been submitted by the Ld. Defence counsel for accused Sri Om Tyagi that the prosecution has miserably failed to connect the said accused S.C No. 62/11 23/73 24 with the commission of offences in this case. It is further submitted that undisputedly there was no demand of ransom amount from the side of the accused Sri Om Tygi in this case and it has nowhere been alleged by the prosecution that at any stage during the relevant period, there was any desire from the side of the accused Sri Om Tyagi for taking any amount from the complainant. It is submitted that no evidence or material have been brought on record by the prosecution to show that accused Sri Om Tyagi was ever seen in the company of coaccused Sandeep Tyagi during the relevant period i.e. from 01.10.2008 to 25.10.2008 and even on the alleged date of incident i.e. 01.10.2008, none has seen these two accused together and the prosecution has not brought on record any material/ evidence to show that accused Sri Om Tyagi was ever seen in the company of accused Sandeep Tyagi, when he was allegedly making ransom call to the complainant. It is further submitted that prosecution has miserably failed to bring on record any evidence or material to prove that any meeting of mind for doing a wrongful act between two accused or for that matter, they were ever seen in the company of each other during relevant period. It is submitted that from perusal of the prosecution evidence , it becomes absolutely clear that the investigating agency came to know about availability of dead body of deceased before they talked to Sri Om Tyagi and that being the position, the statement of accused Sri Om Tyagi to the police and his alleged disclosure statement on certain facts will be of no value in the eyes of law. It is further submitted that as far as the recovery of dead body is concerned, the statement of PW25 Sh. Anil Kumar reveals that first of all the accused Sandeep Tyagi pointed out towards the well from where the dead body was recovered and that being the position by no stretch of imagination, it can be concluded that the dead body was allegedly recovered at the pointing out of accused Sri Om Tyagi. It is submitted that the investigating agency with a view to bring on record the complicity of the accused Sri S.C No. 62/11 24/73 25 Om Tyagi with other accused have wrongly and falsely introduced a story that the papers relating to Muthoot Finance Company were got recovered from the house of Sandeep Tyagi and the investigating agency has also tried to show the complicity of the accused Sri Om Tyagi by alleging that the recovery of bus pass belonging to the deceased Sandeep Tyagi @ Sanju was effected at the instance of accused Sandeep Tyagi, however the above said story was totally false and baseless as there was no evidence of complainant on record, wherein he has mentioned that the deceased was carrying the bus pass which admittedly was not valid on the day i.e. on 01.10.2008 in as much as it had already expired on 28.09.2008. It is further submitted that there was unexplained and inordinate delay in the preparation of inquest documents and there is also unexplained delay in getting the postmortem conducted on the dead body of the deceased and delay is suggestive that the investigating agency was gaining time with a view to concoct facts and frame a false story against the accused.
It has been further submitted on behalf of accused Sri Om Tyagi that the present case is solely based on circumstantial evidence and as such the prosecution was required to prove proper and clear motive so as to make accused liable for the commission of crime. It is further submitted that admittedly there is no eye witness in the present case and even the story which has been concocted by the complainant also with the help of the prosecution at the start of the trial was totally new and fabricated and the complainant in his examinationinchief has introduced certain facts for the first time in his deposition in the court and an unsuccessful attempt has been made to bring some evidence for the proof of motive and even in the lengthy chargesheet, no material or evidence has been mentioned to show that any of the accused had any motive for the alleged commission of crime in this case. It is submitted that the complainant in this case is an interested witness and as such extreme caution and great scrutiny is required to appreciate his evidence as S.C No. 62/11 25/73 26 undisputedly entire case of the prosecution is based either on the statements of family members of deceased or on the statements of officials of the Police Department. It is further submitted that story of the prosecution regarding the arrest of accused Sri Om Tyagi was totally contradictory, baseless and inconsistent. It is submitted that investigating agency has mischievously and deliberately withheld and failed to associate the most important and relevant witnesses in the investigation of this case as no attempt was made by the investigating agency to find out the owner of the land or the tube well which was adjacent to the well from where the dead body was allegedly recovered and as such an adverse inference was required to be drawn against the prosecution.
It has been submitted that story of the prosecution in connection with recording of the disclosure statement of Sri Om Tyagi was totally false, concocted, fabricated and there was no consistency in the basic case of the prosecution in relation to the alleged disclosure of the said accused and as such no reliance can be placed on the socalled disclosure of Sri Om Tyagi and the evidence on record in this respect was totally inadmissible and was liable to be rejected. It is submitted that in view of the loopholes and inconsistency in the case of the prosecution, neither disclosure nor pointing out memo or recovery of dead body allegedly at the instance of accused was admissible u/s 27 of Indian Evidence Act and that being so, the said alleged recoveries were required to be ignored in totality. It is further submitted that alleged recovery of the dead body from the well is bogus, planted and manipulated and is based on concoction of certain facts with a view to frame a false case against the accused. It is submitted that in view of the discrepancies and inconsistency in the evidence of various prosecution witnesses, it is evident that accused was not arrested in the manner as narrated by the prosecution witnesses nor were they brought to the well for the alleged recovery of dead body. It is further submitted that the dead body S.C No. 62/11 26/73 27 has already been noticed/ recovered much earlier as was clear from the crime report filed alongwith chargesheet and as such the story of the prosecution that the dead body was recovered in pursuance to the disclosure of the accused was absolutely false, baseless and concocted. It is submitted that no recovery whatsoever was made at the instance of accused Sri Om Tyagi and all the recoveries allegedly attributed to him have been planted upon him. It is further submitted that the case of the prosecution is that both the accused Sandeep Tyagi and Sri Om Tyagi were together in the car during the period when alleged act of kidnapping and murder took place and they remained together thereafter, however telephone call details filed by the investigating agency in respect of the telephone used by accused Sandeep Tyagi shows that the said accused Sandeep Tyagi and Sri Om Tyagi talked to each other on their mobile telephone continuously during the said period which implies that both accused did not remain together during the crucial period and that being the position, the prosecution case is bound to fail. It is submitted that investigating officer has deliberately and intentionally not made any attempt to collect the certified call details record of telephone no. 9250448209 of Sri Om Tyagi as that would have depicted the clear picture regarding the presence of accused during the relevant period and this would have been fatal to the case of the prosecution. It is further submitted that investigating agency has been facing great difficulty from the very beginning to find out any material or evidence to connect the accused Sri Om Tyagi in this case and in view of the said difficulty, the investigating agency decided to fabricate the story and for that reason , they had shown the recovery of important loan documents from the house of accused Sandeep and not from the house of accused Sri Om Tyagi and the prosecution has also failed to explain the inordinate delay in the recovery of the said loan documents as the said fact was allegedly disclosed by the accused persons in their disclosure statement on 25.10.2008 and the alleged recovery have been effected S.C No. 62/11 27/73 28 only on 02.11.2008.
It has been further submitted on behalf of accused Sri Om Tyagi that apart from the facts stated by him in his statement recorded u/s 313 Cr. PC, accused Sri Om Tyagi has examined two witnesses i.e. DW1 Ms. Anju, who is the wife of accused Sri Om Tyagi and her statement was simple, straight and totally reliable and natural in the facts and circumstances of the present case and the same can be safely relied upon. Similarly, DW2 Mulesh Tyagi was also an important witness from the point of view as to when and from where the accused Sri Om Tyagi was picked up and this witness stood to the truth and narrated the facts briefly and the cross examination of this witness conducted on behalf of the prosecution was more helpful to the case of the defence than the case of the prosecution. It is further submitted that there was no material on record to have any doubt in respect of veracity of the statement of these two defence witnesses and they have explained the facts very clearly and specifically and there was nothing material in the cross examination of these witnesses, which could create any doubt about the truthfulness of their statements. It is submitted that the present case is based solely on the circumstantial evidence and the circumstances brought on record by the prosecution were not of conclusive nature and does not show that in all probability, the crime have been committed by the accused and no other person. It is further submitted that what to talk about chain of the circumstances, even one circumstance has not been fully, properly and effectively proved against accused Sri Om Tyagi in this case. It is submitted that accused Sri Om Tyagi was innocent and has been falsely implicated in this case. It has also been submitted that the prosecution was miserably failed to prove the guilt of the accused on record beyond the reasonable doubt and it has been prayed that the accused Sri Om Tyagi may be acquitted of the charge offences.
In support of his contentions, Ld. Defence counsel has relied upon the S.C No. 62/11 28/73 29 case law cited as 1993 JCC 430, AIR 1991 SC 1108, 1999 Crl.L.J 467, 2010 ( Suppl.) Crl. L.R (SC) 458, 1981 Crl.L.J. 484, 2002(2) JCC 1304, 1994) 5 SCC 188,2010 (4)JCC 3040, 1980 Crl.L.J. 1397, AIR 1979 SC 1408, AIR 2011 SC 349, AIR 2011 SC 2302, AIR 1975 SC 1026, 2004 SCC (Crl.) 1893, SLP ( Crl.) 4419 of 2009, Crl. Appeal No. 1410 of 2010 (SC) and 2005 SCC ( Crl. ) 1715.
10. I have carefully considered the submissions made by Ld. Addl. PP for the State and Ld. defence counsels for both the accused and have carefully gone through the record of the case. I have carefully considered the evidence adduced on behalf of the prosecution in support of its case and by the accused persons in their defence. I have also carefully perused the written arguments/submissions and the case law filed /relied upon by the Ld. Spl. PP and Ld. Defence counsels.
11. In the present case, both the accused Sandeep Tyagi and Sri Om Tyagi have been charged for committing the offences punishable u/s 120B IPC, u/s 364A r/w Section 120B IPC and u/s 302 r/w Section 120B IPC by one of Ld. Predecessors of this court, In brief, case of the prosecution is that on or before 01.10.2008, both accused Sandeep Tyagi and Sri Om Tyagi entered into a criminal conspiracy to abduct Sandeep Tyagi @Sanju to demand ransom from his father Sh. Dharambir Tyagi and in pursuance to the said criminal conspiracy, both accused Sandeep Tyagi and Sri Om Tyagi abducted victim Sandeep Tyagi @ Sanju on 01.10.2008 at about 6:00 PM from near Uttam Nagar Terminal, Delhi and thereafter they committed murder of the said victim Sandeep Tyagi @ Sanju..
12. In the instant case, the prosecution is mainly relying upon the S.C No. 62/11 29/73 30 circumstantial evidence to prove its case on record.
The law relating to the circumstantial evidence have been laid down by the Hon'ble Supreme Court of India in case reported as (2008) 8 SCC 456.
In the aforesaid case titled as " Venkatesan Vs. State of Tamil Nadu (reported as (2008) 8 SCC 456)", it has been laid down by the Hon'ble Supreme Court of India that : " It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram V. State of Punjab, it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt".
It has been further laid down in the aforesaid case reported as (2008) 8 SCC 456) that : " Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence ( Chapter VI) lays down the following rules special to be observed in the case of circumstantial evidence (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal S.C No. 62/11 30/73 31 accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation , upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
In view of the above law laid down by the Hon'ble Supreme Court of India, it is clear that in order to convict the accused on the basis of the circumstantial evidence, it is essential that the circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established on record by the prosecution and those circumstances should be of a definite tendency, unerringly pointing towards guilt of the accused and the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
13. In the present case, in order to prove its case on record, the prosecution is mainly relying upon the testimony of PW17 Sh. Dharambir Tyagi, who is the complainant in this case.
PW17 Sh. Dharambir Tyagi deposed that he had land at village Revla Khanpur and has sold land measuring 12 bigha 16 biswas for a consideration of 7 crores and 71 lacs to a company named Sunidhi in the month of MarchApril, 2008 and the said land was sold by him and his brotherRajinder and entire amount including his share was received by way of way of cheque and he deposited the said cheque in his account bearing No. 63560 at Syndicate Bank, Chhawla. He further S.C No. 62/11 31/73 32 deposed that all the villagers were knowing that the land has been sold. PW17 further deposed that his share came to Rs.3.85 crores and he had two daughters namely Neelam and Anju and one son Sandeep Tyagi @ Sanju, who was pursuing BBA course in IITM at Janakpuri. PW17 deposed that his son Sandeep was the only son and he used to leave for his institute at about 7:30 AM and would return by around 6:30 PM and he was commuting through a DTC bus from residence to his institute and was having a bus pass. PW17 further deposed that he had a telephone at his residence of Tata having no. 9211961725 (mobile number) and land line no. 65248206 having ID Caller and the said mobile phone was used by him as well as by his son. PW17 deposed that the occurrence was of 01.10.2008, the deceased left at about 7:00 AM and he was 17 years of age at the time and he was wearing red colour Tshirt and blue colour jeans and white sport shoes and he had taken aforesaid mobile also with him and a bag containing his books and on that day, at about 6:00 PM, a telephone from the mobile which he was carrying came to his landline at his home containing a threat that his son Sandeep Tyagi @ Sanju had been kidnapped by the person giving threat and that his further statement should be heard attentively and the Caller further said that he should keep Rs.40 lacs ready by day after that day, in case his son was to be released from their clutches. PW17 deposed that he repeatedly pleaded that he did not possess that much of money but the caller said that he and his brother were having a lot of money as they had received it as sales proceeds of land and the caller was a gent as it appeared from his voice. PW17 further deposed that he again received the call soon after and the caller asked him not to report the matter to the police or to anyone else as in that event, his son would be done away with and he pleaded for mercy as he had no money but he insisted for the ransom.
PW17 further deposed that afterwards his family members and other S.C No. 62/11 32/73 33 persons of the village came to know about that and gathered and he was suggested to contact the police and therefore he rang at no. 100 and within ten minutes, the police (PCR and then local police) came and one Sub Inspector inquired from him and assured him of the action at the same time and he also asked him to make efforts and inquires on his own. PW17 deposed that thereafter his children found out a telephone number of his friend Amit, who was contacted over telephone and he revealed that the deceased was with him upto 4:00 PM and thereafter he left for his house whereas the deceased was waiting for the bus. PW17 further deposed that after sometime, Sub Inspector alongwith Head Constable came and asked him to record the complaint and accordingly he got recorded his complaint which was Ex. PW17/1. PW17 deposed that the bus pass which the deceased was having was Ex. PW17/2 and on the date of occurrence, the said bus pass was possessed by the deceased. PW17 further deposed that the telephone number from which he received a telephonic call in the evening on the date of occurrence was 9211961725 which belonged to his deceased son and its number was displayed in the ID Caller attached to his landline phone. PW17 further deposed that on 4 th October at 10:0010:15 AM, he received a call on his landline number from the kidnapper from phone no. 9211961725, demanding a ransom of Rs.50 lacs and he was instructed to keep that amount ready and he asked the caller of that telephone that he could not arrange Rs.50 lacs and that earlier he was asking for Rs.40 lacs upon which the kidnapper told him that since he had revealed the matter to the police, the amount has gone up and the kidnapper also asked him to arrange for the notes of higher denomination. PW17 deposed that thereafter he was going to report to the police station, when Zile Singh from the police came to him by chance and revealed him everything of the talk with the kidnapper and then he recorded his statement and SI Zile Singh told him that S.C No. 62/11 33/73 34 his investigation so far revealed that somebody from his own village or nearby was involved in the crime and asked him to make an arrangement for recording of the conversation as in case the police was deployed at his residence, the kidnapper would be alerted and no useful purpose will be served and the kidnapper will make no further call and after that he contacted his bhanja Sushil to make any such arrangement but he was having no such mobile which could record the conversation and then he arranged one Chinese mobile instrument from the son of one Naresh of his village and made it available to the said Sushil for recording the conversation on 5th of October. PW17 deposed that the kidnapper called on his landline from the aforesaid telephone mobile no. 9211961725 stating that he should not act clever and involve the police again and again and keep the money ready as he was interested in money only and not his son and asked him not to act smart. PW17 further deposed that the caller talked to him for about 14 to 15 minutes which was recorded on the said mobile phone by Sushil and thereafter he informed the police which came and recorded his statement and police also advised him to further record it as more the recording more help they will have in tracking the kidnapper.
PW17 further deposed that on 7th October again kidnapper called from the said mobile phone on his landline informing him as to whether he had made the arrangement of money and advised him not to involve the police as the kidnapper belong to an expert gang and that he would not come in the grip of police and the said conversation was also recorded. PW17 deposed that on 8 th October again the kidnapper called from the said mobile phone on his landline asking him to arrange for the money in the denomination of Rs.1000/ and Rs.500/ notes in a small bag and keep it ready and should not get in touch with the police as they know that he was contacting the police repeatedly and he was advised that all this was not in his interest S.C No. 62/11 34/73 35 as they were dangerous and on that day the recording could not be done as Sushil was not available and on that day also he went to the PS and got his statement recorded. PW17 further deposed that on 9th of October again kidnapper called from the said mobile phone on his landline which was recorded and he went to the PS and got recorded his statement in this regard and on 10 th of October, again the kidnapper called from the said mobile phone on his landline and asked him to come with money at Panipat Bus Stand (Haryana) the next day in the afternoon with a driver and without informing the police in any manner and the conversation of this date was also recorded. PW17 deposed that on 16th of October again kidnapper called from landline no. 25380046 on his landline again warning him not to disclose anything to the police and keep the money ready at his house and the conversation of this date could not be recorded. PW17 further deposed that on 19 th of October again kidnapper called from mobile no. 9718644371 at his landline which could not be recorded. PW17 also deposed that on 23 rd of October again the kidnapper called from mobile no. 9711522743 on his landline phone asking him to keep the money ready and not to tell and involve the police as they knew that he had been contacting the police repeatedly and he was asked to bring the money at District Centre, Janakpuri and the conversation of this day perhaps could not be recorded despite efforts and he therefore went to the police station and got recorded the statement of that day.
PW17 further deposed that on 23rd of October, a call was received by one Oma Nand of his village regarding which he made a complaint to the police and he told him that the caller was asking him to make him talk to him as he was unable to contact him on telephone and Oma Nand also told him that the caller called upon him from the same mobile number from which he called on him on 23 rd of October S.C No. 62/11 35/73 36 and threatened him that since he was also having a son and he would also be kidnapped in case he did not arrange a talk with him to the kidnapper and on that day he then alongwith Oma Nanad went to the police and got his statement/complaint recorded. PW17 deposed that during the aforesaid period whenever kidnapper called on his landline, he had talked with the kidnapper, his daughter Neelam and his wife also talked with the kidnapper and voice of the kidnapper whenever he talked to him was of the same person and he can identify the recorded voice of the person calling upon him if the same was repeated/played to him. PW17 further deposed that on 24.10.2008, an intimation was received from the police station and accordingly PW15 Sushil went to the PS alongwith mobile phone, charger and memory card and in the evening, Sushil had shown him the receipt / memo issued by the police station in token of having received the aforesaid articles from him. PW17 deposed that he had given photo of his deceased son to the police and the same was Ex. PW17/3 and he also deposed that he knew both the accused persons by name who were present in court as they belonged to his village and were neighbours. PW17 further deposed that both the accused persons were fast friends in the village and the houses of the accused persons in his village were four and eight houses away respectively.
PW17 Dharamvir deposed that on 25.10.2008, he received a message from the police station asking him to reach the police station alongwith one or two persons at about 09:15 a.m and on the way, he met Brijesh-Pradhan, whom he told everything and then he accompanied him to PS : Chhawla. In the PS, IO Inspector Rishipal Singh was having both the accused persons with muffled face and when he asked who they were, he disclosed that they were the offenders who kidnapped and killed his son and they had also disclosed that they can get the body of the deceased recovered from the dry Well near the temple of Baba Amardass Mandir, Jhatikra Road, Delhi. PW17 further deposed that on his asking, Insp. Rishipal had shown S.C No. 62/11 36/73 37 their faces whom he identified as Sri Om and Sandeep Tyagi and when he asked them as to why they had kidnapped and killed his son, accused Sri Om said that he had committed a blunder and he be forgiven for the same and accused Sandeep said that his job was in danger and he be also forgiven for kidnapping and killing the deceased. Both the accused persons admitted that for the greed of money, they committed the offence. PW17 deposed that after talking to accused Sandeep, he identified his voice as the same which he used to hear as the caller who kidnapped his son and he told the same to the police. PW17 further deposed that thereafter the accused persons, himself, Brijesh Pradhan and other police officials, namely, Insp. Rishipal Singh and others went in separate vehicles to Baba Amardass Temple, Jhatikra Road, where the accused persons pointed out towards the Well near a tree where they had dumped the body of the deceased after committing the crime. The accused persons led the police party to the Well and they had followed them. PW17 further deposed that Insp. Rishipal Singh with the help of Torch could see that there was some body and thereafter at his instruction an official of police with the help of the rope entered into the said Well and the body of the deceased was taken out which was stinking. PW17 deposed that he had identified that body of the deceased as that of his son Sandeep and from the body of the deceased, a driving licence belonging to accused Sandeep Tyagi was found by SI Jagbir and the body of the deceased was also having the bag on his shoulder and his son used to take the same while going to his college. From the said bag, a register, ICard of the deceased, two pens, three library cards, one gumstick, a broken scale and a purse were also found and all the above said goods belonged to his deceased son. Crime team also visited the spot where from the body of deceased was recovered and took the photographs also besides inspecting the spot.
PW17 has identified pair of shoes (Ex.P17/A2 collectively) Tshirt of red colour (Ex. PW17/A3) and Jeans of blue colour (Ex. PW17/A4 ) to be S.C No. 62/11 37/73 38 the same which were recovered from the spot at the time of recovery of dead body from the spot. PW17 has further identified the bag (Ex. PW17/A6), the ICard (Ex. PW17/A7),three library cards (Ex.PW17/A8 collectively), purse (Ex. PW17/A), register (Ex. PW17/A10 ), broken scale (Ex. PW17/A11), two pens (Ex. PW17/A12 collectively) and a gum stick ( Ex.PW17/A13) to be the same as belonging to his deceased son.
PW17 further deposed that at the spot, memos were prepared on which his signatures as well as the signature of Brijesh Pradhan were obtained. PW17 has proved the pointing out memo by accused Sri Om and Sandeep Tyagi as Ex.PW17/4 and Ex.PW17/5 respectively. He has further proved the recovery memo of dead body of his son as Ex.PW17/6 and the recovery memo of bag and articles as Ex. PW17/7. PW17 has proved the driving licence of accused Sandeep Tyagi which was recovered on the dead body of his son as Ex.PW17/8 and its recovery memo as Ex.PW17/9. PW17 has also proved the recovery memo of the blood stained earth lifted from the Well as Ex. PW17/10 and of the earth control as Ex.PW17/11. PW17 deposed that on the next day, he identified the body of the deceased vide memo Ex.PW17/13 and stated that he received the body of the deceased after postmortem vide receipt already Ex. PW13/C. PW17 has also proved the mobile phone, charger and memory card/SIM card containing the voice recording as Ex. PW15/1, Ex.PW15/3 and Ex.PW15/2 respectively. PW17 after hearing the aforesaid play of the memory card Ex. PW15/2 stated that the conversations had the voice of accused Sandeep, his voice, voice of his daughter Neelam and that of his wife Munesh. PW17 was also shown the transcript of the aforesaid conversations and he has stated that the transcript of the conversation was the same which was played on the said memory card in the court and he has proved the said transcription consisting of 13 pages as Ex. PW17/14 (colly.).
S.C No. 62/11 38/73 39PW17 further stated that in the memory card, Ex.PW15/2, where conversations were recorded and preserved, the voices of four persons were there namely, his voice (represented as 1 in the transcript), voice of his wife Munesh(represented as 2 in the transcript), his daughter Neelam (represented as 3 in the transcript) and that of the kidnapper (represented as 4 in the transcript) in the page nos. 1 to 8 in the transcript. PW17 Sh. Dharamvir Tyagi has also identified the corresponding voices in the transcript, already available on record and were numbered as 11, 22, 33 and 44, represented by the persons and their voice as stated above on the remaining pages no. 9 to 13. PW17 further deposed that during the course of investigation, his blood and blood of his wife were taken in Rohini and after seeing the date on the form, the witness stated that his blood was taken on 04.12.2008 and he has proved the said form as Ex. PW17/15. PW17 deposed that name of his wife is Munish Devi and her blood sample was also taken on the same day at the aforesaid laboratory and he has proved the identification form in respect of the same as Ex.PW17/16. PW17 further deposed that his mobile number which he had given to his son was 9211961725. He also deposed that the said mobile was in the name of one Hira Lal, resident of Alipur, when he had purchased the same and the said telephone continued to remained in his name till October, 2008, even after the purchase of the same by him in February, 2008.
14. In support of its case, the prosecution is also relying upon the testimony of PW15 Sh. Sushil Tyagi, who deposed that on 01.10.2008 he was present at his fields and was watering the fields, when he received a phone call from his mother, who told that Sandeep @ Sanju had been kidnapped and asked him to reach home immediately. He further deposed that thereafter he alongwith his mother reached Ravela Khanpur at the house of his maternal uncle, who told him that Sandeep had S.C No. 62/11 39/73 40 been kidnapped and he had received a phone call from the kidnappers, who had demanded money. PW15 deposed that his maternal uncle informed him that he had lodged a complaint with the police and he asked him to remain at his house and he stayed there. PW15 further deposed that on 04.10.2008, a phone call was received from a kidnapper, which was received and heard by his maternal uncle and he was at the house of his maternal uncle at that time and the number of the caller was depicted in the phone. PW15 also deposed that on 05.10.2008, his maternal uncle had gone to the police station and on his return he asked him whether he can record a phone call received at his house and he told him that he can record the same if a mobile phone is made available and in the evening, he arranged a mobile phone from the village and a Memory Card was inserted in the said mobile.
PW15 further deposed that on 06.10.2008, again a phone call was received from kidnapper and he started recording the conversation and the kidnapper had demanded a sum of Rs.40 Lakhs for releasing Sandeep and had asked his uncle to make arrangement immediately otherwise, he would cut Sandeep into pieces. PW15 deposed that the number depicted on the Tata phone installed at his maternal uncle's house was of mobile of Sandeep i.e. 9211961725. PW15 deposed that again a phone call was received on 7.10.2008 and threats were extended again and it was told that since police has been informed, a further sum of Rs.10 Lakhs has to be paid on that account and voice of the person on the other side of the phone was same as it was on 6.10.2008. PW15 further deposed that on 08.10.2008 in the night, again a phone call was received from the said person, who was extending threats again and again, and also told that he was habitual to deal with the police and play hide and seek with the police. The phone call on 8.10.2008 was received by Neelam and was recorded by him. PW15 deposed that on 9.10.2008, again a phone call was received and threats were extended again and he asked to pay the amount in 76 bundles of S.C No. 62/11 40/73 41 notes of denomination of Rs.500/ and 12 bundles of notes of denomination of Rs.1000/ and he does not remember as to who received the phone call but the recording was made by him. PW15 deposed that on 10.10.2008, again a phone call was received and it was informed to keep the money ready and the place of delivery would be told by the person and the person on the other side was the same and he does not remember who received the call, but he recorded the same. PW15 also deposed that on all the aforesaid date (s), the phone number depicted was 9211961725.
PW15 further deposed that on 16.10.2008, phone call was received from another number which he does not remember, however the last four digits were 0046 and the voice was the same and he also stated that he was the kidnapper and he does not remember who received the phone call. PW15 volunteered to state that the phone call was received on all the occasions either by his maternal uncle or by Neelam. PW15 deposed that on 16.10.2008 the kidnapper had asked whether the money has been arranged or was available at home or not. PW15 further deposed that on 19.10.2008 another phone call was received from some another number, which he does not remember and the voice was the same and the caller told his maternal uncle, who received the phone call to keep ready a vehicle and Oma Nand a resident of Village be kept as a driver as his uncle had stated that he is not in a position to arrange for a driver. PW15 deposed that on 23.10.2008, again a phone call was received from phone number 9711522743 and it was received by his maternal uncle. The voice was same but the same was not recorded. PW15 further deposed that from phone no. 9711522743, phone calls were also received in the village by Om Anand and others whose name he does not know. Om Anand had also made a call to his maternal uncle and informed his maternal uncle that he had received threatening calls from phone No. 9711522743 and asked his maternal uncle S.C No. 62/11 41/73 42 to ascertain the person to whom the said phone belongs and his maternal uncle asked him to dial the said number from his mobile to ascertain whether on the other side it was the same person, who was extending threatening calls. PW15 further deposed that the number of his mobile was 9466393195 and he made a call on the said mobile and it was picked by the kidnapper, which he could recognize by his voice. He inquired about him and when he told him that he was a resident of Daulatpur, the phone was disconnected from the other side. PW15 deposed that he had recorded the calls as his maternal uncle told him that police has directed to record the calls and in case a police person was deputed at house, there were chances that the caller may not make a call at all. Police also told his maternal uncle that as per their investigations the caller was either a relative or a covillager. PW15 further deposed that on 24.10.2008, police seized his mobile alongwith the SIM card bearing No. 9466393195 and charger vide memo Ex. PW15/A. PW15 deposed that in case he hear the voices, he can identify the voice of the kidnapper and of his maternal uncle. The kidnapper's voice was a male's voice. PW15 deposed that he can identify the voice of the kidnapper and can distinguish it from the voice of his maternal uncle and Neelam. PW15 identified his mobile, SIM Card and Charger as Ex.PW15/1, 2 & 3 respectively.
15. In the present case, the prosecution is mainly relying upon the circumstantial evidence to prove its case on record and the first circumstance which is being relying upon by the prosecution in this regard is that both the accused persons pointed out the place i.e well where they had thrown the dead body of the deceased after committing the crime and they also got recovered the dead body of victim from the said well in the field near the temple, Jhatikara road, Delhi. In addition to this, the other incriminating circumstance brought on record by the S.C No. 62/11 42/73 43 prosecution is recovery of the driving licence of accused Sandeep Tyagi from the dead body of the deceased and the recovery of bag, Icard, three library cards, wallet with papers, register, broken scale, two pens and gum stick of the deceased at the instance of accused persons.
In regard to abovesaid incriminating circumstance/recoveries i.e PW17 stated that on 25.10.2008 accused Sandeep Tyagi and Sri Om Tyagi had disclosed about their involvement in this offence and they led police to Baba Amardass Mandir, Jhatikra Road, Delhi where the accused persons pointed out towards Well near a tree where they had dumped the body of the deceased, after committing the crime. He further deposed that accused persons led the police party to the Well and pointed out specifically to the said Well and Insp. Rishipal Singh with the help of torch could see that there was some body in the Well . On his instructions, police officials with the help of rope entered into the said Well and the body of the deceased was taken out which was stinking . PW17 deposed that he identified the dead body of the deceased as that of his son and from the body of the deceased, a driving licence belonging to the accused Sandeep Tyagi was found and the body of the deceased was also having the bag on his shoulder which his son used to take, while going to his college. From the said bag, a register ICard of the deceased, two pens, three library cards, one gum stick , a broken scale and a purse were found and all the above said goods belonged to his deceased son. PW17 has identified pair of shoes (Ex. P17/A2 collectively ) Tshirt of red colour (Ex. PW17/A3) and Jeans of blue colour (Ex.PW17/A4) to be the same which were recovered from the spot at the time of recovery of dead body from the spot. PW17 has further identified the bag (Ex. PW17/A6), the ICard (Ex.PW17/A7), three library cards (Ex.PW17/A8 collectively ), purse (Ex.PW17/A9), register (Ex.PW17/A10), broken scale (Ex.PW17/A11), two pens (Ex.PW17/A12 collectively) and a gum stick ( Ex.
S.C No. 62/11 43/73 44PW17/A13) to be the same as belonging to his deceased son.
The testimony of PW17 Dharambir Tyagi in this regard has also been corroborated by the testimony of PW16 Brajesh Tyagi, who deposed that body of the deceased was taken out in his presence from a Well which was very deep and was near a tube Well , which was close to Jhatikara Road. He further deposed that there was a lot of force present there and with the help of rope the corpse of the dead body was lifted and two persons who were in muffled face and were with the police pointed out towards that Well. PW16 stated that the dead body was having a school bag, photo Identity Card, purse, stationary, pens, DTC pass, pass of the College etc on it and the dead body was identified by the father of the deceased to be that of his son.
The testimony of PW17 has also been corroborated to a large extent by the testimony of PW25 HC Anil Kumar, who deposed that on 25.10.2008 he was present in the PS and on that day, Insp. Rana alongwith officer of Spl. Staff SW came to the PS alongwith two suspects namely Sandeep Tyagi and Sri Om Tyagi, both accused present in the court and IO Insp. R.P.Singh interrogated the accused persons in his presence as well as in the presence of other police officials and in the meanwhile, two other public persons namely Brijesh Tygi and Dharamvir Tygi had also come in the PS and thereafter the accused persons had led the police party to a field at Jhatikara Road where both the accused persons pointed out a Well and accused Sandeep Tyagi stated by pointing out the Well that he and his coaccused Sri Om had thrown dead body of one Sandeep Tyagi @ Sanju in the said Well after murdering him and the pointing out memos in this regard were Ex. PW 17/4 and Ex. PW17/5. PW25 further deposed that ASI Jagbir brought a rope from gypsy and he went inside the Well with the help of said rope and found a dead body lying inside the said dry Well. Thereafter the dead body was brought out of the Well S.C No. 62/11 44/73 45 and alongwith the dead body, one school bag and one DL of accused Sandeep Tyagi was also recovered from the said Well and the said dead body was identified at the spot by Dharamvir Tyagi as that of his son.
16. The testimonies of abovesaid witnesses regarding the recovery of dead body of the deceased at the instance of accused persons has also been corroborated to a large extent by the testimonies of PW36 ASI Jagbir , PW40 SI Gyanender and PW42 Insp. Rishipal Singh .
The important fact is that all the above said material witnesses were cross examined by the ld. defence counsels, but nothing material has come on record which could assail the credibility or trustworthiness of these witnesses or which could be of any help to the accused persons.
In his cross examination by the ld. defence counsel, PW17 denied the suggestion that he was deposing falsely, being the father of the deceased Sandeep Tyagi. He further denied the suggestion that no dead body was ever recovered at the instance of accused persons in his presence nor any articles or the case property allegedly recovered in this case. PW17 denied the suggestion that accused Sri Om Tyagi had not taken the police to any place or to the Well as stated by him before the court. He further denied the suggestion that he was attributing all false allegations against the accused and proceedings as referred by him were not conducted in his presence and he was made to sign all the documents at a later stage while sitting in the police station. PW17 denied the suggestion that accused Sri Om Tyai did not led the police to Well as stated by him nor he pointed out any such place. PW17 also denied the suggestion that the dead body had already been recovered by the time he was called to the police station or that the arrest of accused was in fact made after the recovery of the dead body.
S.C No. 62/11 45/73 46In his cross examination by the Ld. Defence counsel, PW16 Brijesh Tyagi stated that spot was approximately 300 feet away from the road and there was a room adjacent to the tube well. He denied the suggestion that all the documents referred by him were prepared in the police station and he signed the same there. PW16 further denied the suggestion that he did not go to the alleged place of recovery of a dead body or that he signed all the documents in the PS at the instance of the IO or that no dead body and other articles were recovered in his presence.
In his cross examination by the Ld. Defence counsel, PW25 HC Anil Kumar denied the suggestion that accused persons never pointed out any place of recovery of the dead body on 25.10.2008 or the signatures of accused Sandeep Tyagi or the signatures of accused Sandeep Tyagi were taken on blank papers which were later on converted into recovery memos or pointing out memos or that he was deposing falsely. PW25 further denied the suggestion that he was a false witness in this case. PW25 denied the suggestion that none of the documents as mentioned in his chief were prepared in his presence or that on the instructions of the IO, he had signed all the documents in the police station at a later stage. PW25 further denied the suggestion that nothing was recovered in his presence or that all the documents were prepared at PS at a later stage and on the instruction of the IO, he sign the same. PW25 also denied the suggestion that no disclosure was made by accused Sri Om Tyagi or that he was deposing falsely.
In his cross examination by the Ld. Defence counsel, PW36 ASI Jagbir Singh denied the suggestion that he did not join the investigation as claimed by him in his examination in chief. He further denied the suggestion that no interrogation was carried out in his presence or that his signatures were obtained in the PS at the later stage. PW36 denied the suggestion that no recovery was effected S.C No. 62/11 46/73 47 in his presence either from the Well or from the place near the bus stand or that he was making his statement falsely at the behest of his senior officers. PW36 further denied the suggestion that he did not accompany the police to any place as claimed by him in his examination in chief or that he have been tutored to make false statement before this court. PW36 denied the suggestion that Dharamvir Tyagi, father of the deceased and Brijesh Pardhan were called to the PS at a later stage or that they had not accompanied them from the PS, either to the tube well or to any other place PW36 also denied the suggestion that he has deposed falsely and that he was a procured witness in this case.
In his cross examination by the Ld. Defence counsel, PW40 SI Gyanender denied the suggestion that he had deposed falsely or nothing had done in his presence as stated by him in his examination in chief. He further denied the suggestion that recoveries were not effected in his presence. PW40 also denied the suggestion that he was deposing falsely at the behest of the IO of this case.
In his cross examination by the Ld. Defence counsel, PW42 Insp. Rishipal Singh denied the suggestion that all the documents i.e recovery memo etc were prepared at the PS or at later stage. He further denied the suggestion that signatures of Sri Om Tyagi on the disclosure statement were obtained by him either forcefully or fraudulently. PW42 denied the suggestion that accused Sri Om Tyagi did not make any disclosure statement or did not point out any place as stated by him. PW42 further denied the suggestion that the dead body of Sandeep Tyagi has been noticed and recovered earlier and not at the time stated by him. PW42 denied the suggestion that the dead body of the deceased was not recovered at the pointing out of accused Sri Om Tyagi . He further denied the suggestion that recovery memo purporting to be of the deceased Sandeep Tyagi is a forged and fabricated document. PW42 denied the suggestion that all the documents were prepared by S.C No. 62/11 47/73 48 him & other officials of the police without any statement or assistance of any of the accused persons. PW42 further denied the suggestion that the dead body of the deceased was recovered in the earlier hours on 25.10.2008 much before the arrest or alleged pointing out by the accused. PW42 denied the suggestion that PCR personnel were informed when the body was noticed and thereafter,PCR placed the information to the crime team, who reached at the spot. PW42 further denied the suggestion that a false case was made against the accused and false and interested witnesses were examined. PW42 denied the suggestion that all the statements were prepared, while sitting at the PS much later as shown by them in the documents in this case. PW42 further denied the suggestion that accused Sri Om Tyagi made no disclosure statement nor any recovery was effected at his instance or that he was deposing falsely. PW42 denied the suggestion that all the documents i.e recovery memos etc. pointing out memos, disclosure statements were recorded by him on his own, while sitting in the police station later on to falsely implicate the accused persons. PW42 further denied the suggestion that accused Sandeep Tyagi had not made any disclosure statement or that his signatures were taken on blank papers forcibly. PW42 denied the suggestion that no place has been pointed out by accused Sandeep Tyagi and pointing out memos have been falsely prepared. PW42 further denied the suggestion that dead body was recovered much prior to the arrest of the accused persons and all the documents were prepared related to the recovery of dead body and articles later on at the police station to falsely implicate the accused. PW42 denied the suggestion that the driving licence of accused Sandeep Tyagi was falsely planted just in order to connect the accused with the alleged recovery of the dead body. He further denied the suggestion that driving licence was not recovered at the time of recovery of dead body and for the same reason, the fact of recovery of driving licence is not mentioned in form no. 25.35 ( Inquest report).
S.C No. 62/11 48/73 49PW42 denied the suggestion that since there was no evidence against accused Sandeep Tyagi, they created and planted false evidence and documents to falsely implicate him in the present case. PW42 also denied the suggestion that he did not investigate the case properly or that he was deposing falsely.
17. It has been submitted by the Ld. Defence counsel that the disclosure statements of accused recorded in the present case were not in conformity with the law of the land as the same have been admittedly recorded prior to the arrest of the accused and it has been stated by the IO during his evidence that at the time of the recording the said disclosure statements, accused were only suspect and it has not been explained by the prosecution as to what was the need for recording of the disclosure statements, when the accused persons were only suspect in the case at the relevant time and in the absence of recording of the disclosure statement in accordance with the law of the land, any recovery effected on the basis of the same, cannot be taken into consideration, however the said submissions made on behalf of the accused persons are not tenable as the custody as contemplated u/s 27 of the Evidence Act does not mean formal custody and it also includes such state of affairs in which the accused can be said to be in the hands of the police officer, even under some surveillance and the concept being in custody can not be equated with concept of formal arrest as has been laid down in the case cited as 1998 CRL. L. J. 1553.
In the above said case titled as 'Bibhachha @ Bibhachha Baitharu Vs. State of Orissa (cited as 1998 CRL. L. J. 1553)', it has been laid down by the Hon'ble High Court of Orissa that :
"It is well settled that 'custody' as contemplated under section 27 of the Evidence Act does mean formal custody, but S.C No. 62/11 49/73 50 include such state of affairs in which the accused can be said to be in the hands of the police officer, even under some surveillance. The word 'custody' as contemplated would mean surveillance or restriction on the movement of the person concerned which can be completed in the event of arrest of the person. The concept of being in custody, therefore, cannot be equated with the concept of formal arrest. "
Further, in the case titled as 'Geejaganda Somaiah Vs. State of Karnataka (cited as 2007 CRL. L.J 1792)', it has been laid down by the Hon'ble Supreme Court of India that :
"Section 25 of Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Section 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Indian Evidence providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Section 25 and 26. Such statements are generally termed as disclosure statement leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is affordable thereby that the information was true and accordingly it can be safely allowed to be given in evidence".
Further in the case titled as 'Updesh @ Chintu Vs State (cited as 2012 S.C No. 62/11 50/73 51 (2) JCC 935)', it has been laid down by the Hon'ble High Court of Delhi that :
"The recovery of the article is pursuant to disclosure statement which is admissible under Section 27 of the Indian Evidence Act. The registration of FIR is not a sine qua non for the recovery to be effected. Recovery can be effected even on an oral disclosure statement. Further the conduct of the accused leading the police party to his house and the specific place in the house from where the recovery of arms and ammunitions is consequently made is also admissible under Section 8 of the Evidence Act.".
18. It has been further submitted by the Ld. Defence counsels that as per the case of prosecution disclosure statements of both the accused Sandeep Tyagi and Sri Om Tyagi were recorded simultaneously, which implies that the facts alleged to be discovered on the basis of the said disclosure statement can not be attributed to both the accused as alleged facts were known when the subsequent disclosure statement was recorded, however the said contentions put forward on behalf of the defence also do not hold water as the joint disclosures or simultaneous disclosures, per se, are not inadmissible under Section 27 of Evidence Act as has been laid down in the case cited as (2005) II SCC 600) In the above said case titled as 'State (NCT of Delhi) Vs Navjot Sandhu @ Afsan Guru' (cited as (2005) II SCC 600)', it has been laid down by the Hon'ble Supreme Court of India that :
"Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. "A person accused" need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from S.C No. 62/11 51/73 52 the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27".
Hence, in view of the above, it is clear that joint or simultaneous disclosures made by two or more accused are admissible u/s 27 of Evidence Act and any fact discovered pursuant to the said disclosures can be attributed to both the accused persons.
19. It has been submitted by the Ld. Defence counsels that recovery of the dead body at the instance of accused persons itself can not be said to be a material incriminating circumstance and this in itself is not sufficient to connect the accused with the commission of offence in the case, however the said submissions made on behalf of the accused persons are devoid of any merits and are not tenable as recovery of the dead body at the instance of accused is a formidable incriminating S.C No. 62/11 52/73 53 circumstance against the accused as has been laid down in the case cited as 1999 CCR 344 (SC In the abovesaid case titled as 'State of Maharashtra Vs Suresh (cited as 1999 CCR 344 (SC) )', it has been laid down by the Hon'ble Supreme Court of India that :
"One of the formidably incriminating circumstances against the accused was that the dead body was recovered as pointed out by the respondent.
We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal Court that his knowledge about the concealment was on account of one of the last two possibilities the criminal Court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal Court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.".
In the instant case, the dead body of the victim has been recovered from the well in the field, near the temple, Jhatikara road and this recovery of dead body in itself is a formidable incriminating circumstance against the accused persons. It is not the case of the defence that accused persons have seen some oneelse concealing it or that they have been told by another person that it was concealed there and in S.C No. 62/11 53/73 54 the absence thereof, it is evident that the dead body of the victim was dumped in the abovesaid well by accused persons themselves.
20. The other incriminating circumstance against accused persons in this case the identification of the voice of accused Sandeep Tyagi in the telephonic ransom calls from the kidnappers recorded by PW15 Sh. Sushil Tyagi in this case.
In this regard, PW17 Sh. Dharambir Tyagi deposed that he had received the calls from the kidnapper on various date (s) and these ransom calls were received initially from mobile phone which his deceased son was carrying at the time of kidnapping and thereafter from the different telephone numbers and these ransom calls were received at the landline telephone installed at his residence as well as on his mobile phone number . PW17 also deposed that the ransom calls received from the kidnapper in this case were recorded by the PW15 Sh. Sushil Tyagi.
Further in this respect, PW15 Sh. Sushil Tyagi deposed that on 04.10.2008, a phone call was received from a kidnapper, which was received and heard by his maternal uncle and he was at the house of his maternal uncle at that time and the number of the caller was depicted in the phone. PW15 further deposed that on 05.10.2008, his maternal uncle had gone to the police station and on his return he asked him whether he can record a phone call received at his house and he told him that he can record the same if a mobile phone is made available and in the evening, he arranged a mobile phone from the village and a Memory Card was inserted in the said mobile. PW15 deposed that on 06.10.2008, again a phone call was received from kidnapper and he started recording the conversation and the kidnapper had demanded a sum of Rs.40 Lacs for releasing Sandeep and had asked his uncle to S.C No. 62/11 54/73 55 make arrangement immediately otherwise, he would cut Sandeep into pieces. PW15 deposed that the number depicted on the Tata phone installed at his maternal uncle's house was of mobile of Sandeep i.e. 9211961725. PW15 deposed that again a phone call was received on 7.10.2008 and threats were extended again and it was told that since police has been informed, a further sum of Rs.10 Lacs has to be paid on that account and voice of the person on the other side of the phone was same as it was on 6.10.2008. PW15 further deposed that on 08.10.2008 in the night, again a phone call was received from the said person, who was extending threats again and again, and also told that he was habitual to deal with the police and play hide and seek with the police. PW15 deposed that on 9.10.2008, again a phone call was received and threats were extended again and he asked to pay the amount in 76 bundles of notes of denomination of Rs.500/ and 12 bundles of notes of denomination of Rs.1000/ and he does not remember as to who received the phone call but the recording was made by him. PW15 further deposed that on 10.10.2008, again a phone call was received and it was informed to keep the money ready and the place of delivery would be told by the person and the person on the other side was the same and he does not remember who received the call, but he recorded the same. PW15 also deposed that on all the aforesaid date (s), the phone number depicted was 9211961725. PW15 further deposed that on 16.10.2008 phone call was received from another number which he does not remember, however the last four digits were 0046 and on 19.10.2008, another phone call was received from some another number, which he does not remember and the voice was the same and the caller told his maternal uncle, who received the phone call, to keep ready a vehicle and Oma Nand a resident of Village be kept as a driver as his uncle had stated that he was not in a position to arrange for a driver. PW15 deposed that on 23.10.2008 again a phone call was received from phone number 9711522743 and it was received by his maternal uncle.
S.C No. 62/11 55/73 56PW15 further deposed that from phone no. 9711522743, phone calls were also received in the village by Om Anand and others, whose name he does not know. Omanand had also made a call to his maternal uncle and informed his maternal uncle that he had received threatening calls from phone No. 9711522743 and asked his maternal uncle to ascertain the person to whom the said phone belongs and his maternal uncle asked him to dial the said number from his mobile to ascertain whether on the other side, it was the same person who was extending threatening calls. PW15 further deposed that the number of his mobile was 9466393195 and he made a call on the said mobile and it was picked by the kidnapper, which he could recognize by his voice. PW15 also deposed that he had recorded the calls as his maternal uncle told him that police has directed to record the calls and in case a police person was deputed at house, there were chances that the caller may not make a call at all.
It is pertinent to note that after apprehension of both the accused Sandeep Tyagi and Sri Om Tyagi, the complainant i.e PW17 Sh. Dharamvir Tyagi was called to the PS by the IO . In the PS, IO Inspector Rishipal Singh was having both the accused persons with muffled face and when the complainant asked who they were, he disclosed that they were the offenders who kidnapped and killed his son and they had also disclosed that they can get the body of the deceased recovered from the dry Well near the temple of Baba Amardass Mandir, Jhatikra Road, Delhi. PW17 further deposed that on his asking, Insp. Rishipal had shown their faces whom he identified as Sri Om and Sandeep Tyagi and when he asked them as to why they had kidnapped and killed his son, accused Sri Om said that he had committed a blunder and he be forgiven for the same and accused Sandeep said that his job was in danger and he be also forgiven for kidnapping and killing the deceased. Both the accused persons admitted that for the greed of money, they committed the offence. PW17 S.C No. 62/11 56/73 57 also deposed that after talking to accused Sandeep, he identified his voice as the same which he used to hear as of caller, who kidnapped his son and he told the same to the police.
21. In addition to above, the voice in the recorded telephonic ransom calls have also been identified to be that of Sandeep Tyagi by PW38 Dr. Rajinder Singh, Principal Scientific Officer, CFSL, New Delhi.
PW38 Dr. Rajinder Singh deposed that he examined the questioned voice of Sandeep Tyagi which was marked by Ex. Q1(A1), Q1(AII) , Q1(AIII), Q1(AIV), Q1(AV) ,Q1(AVI) ,Q1 (AVII) contained in the memory card Ex. PW15/2 with respect to his specimen voice which was marked by him Ex. S1(A), contained in many video cassettes Ex. PW14/Art2 by Auditory and voice spectrographic technique and he found that questioned voice of Sandeep Tyagi which was marked Ex. Q1(A1), Q1(AII) , Q1(AIII)Q1(AIV) ,Q1(AV) ,Q1(AVI) , Q1(AVII), containing Ex. PW15/2 tallied with his specimen voice which was marked by Ex. S1(A) containing in cassettes Ex. PW14/Art2 in respect of their linguistic, phonetic and other general spectrographic parameters. PW38 further deposed that he examined the whole aforesaid recorded question voice with the specimen voice by auditory methods; and to confirm his auditory examination selected few common words and sentences between questioned and specimen voice by voice spectrographi technique. Some of the words/sentences found similar in question and specimen voice were " ladka" " Sawaljawab" " panipat", " Aap ki Hoshiyari" Aap ka Ladka," " Hamain Bhi apni Jaan Pyari Hai" Hello, Kidnapper Bol Rahen Hein" " Panipat Bulaya Tha" etc. Duration of voice in folder Ex. Q1(A1) was of fourteen minutes eleven seconds , in folder Ex. Q1 (AII) was of six minutes fifty five seconds, Ex. Q1 (AIII) was of seven minutes twenty nine seconds, Ex.
S.C No. 62/11 57/73 58Q1(AIV) was of three minutes thirty found seconds, Ex. Q1(AVI) was of three hours twenty nine minutes one second out of which relevant conversation was of the duration fourteen minutes ten seconds, Ex. Q1 (AVII) was of six minutes fifty five second. Alongwith the request of the police apart from the articles received as stated earlier the transcript of specimen voice and questioned voice were also sent to him. PW8 further deposed that transcript available in the judicial file in two pages has been compared with the copy available in his record which he has used in his examination and both of them tally and he has proved the said transcript as Ex. PW38/B and he has also proved the transcript of the questioned voice copy of which was sent to him as Ex. PW38/C. The important fact is that this expert witness i.e PW38 Dr. Rajinder Singh was cross examined by the Ld. Defence counsels, but nothing material has come on record which could assail the credibility of this witness or which could be of any help to the accused.
In his cross examination by the Ld. Defence counsel, PW38 stated that he has compared the voice samples and in any case, three result are possible i.e positive identification, negative identification and no opinion. If the compared voices are 99% similar then the result is positive identification. He further stated that he has not used the positive identification in his report but has used the word probable voice which according to him is positive identification. PW38 volunteered to state that the practice of using the word probable voice for positive identification are used in CFSL's and FSL's where such type of examinations are presently being carried out. He further stated that he do not agree that the word probable in the present context means uncertain. PW38 denied the suggestion that probable identification and positive identification are two different words in science of voice identification. He further denied the suggestion that there are five results possible after the S.C No. 62/11 58/73 59 examination of voice samples in CFSL. PW38 denied the suggestion that he has not examined the voice samples in the present case as per rules or that he has prepared the report falsely or that precautions were not taken during the examination. PW38 also denied the suggestion that he has given the false evidence.
22. Further, the fact regarding making of the ransom calls by the accused Sandeep Tyagi has also been corroborated by the testimonies of PW5 Ms. Sumita Khosla and PW9 Sh. Shambhu Nath .
PW5 Ms. Sumita Khosla deposed that she was running STD Booth at Dabri Mor in front of PS Dabri and the land line telephone issued in respect of the said booth bears number 25380046. She further deposed that on 16.10.2008, many persons came out of whom one made a phone call and paid Rs. 6/. After about ten minutes, she received a call to the effect that some person had made a call from the number allotted to her STD Booth and that the said person be located. PW5 deposed that she searched for the said person but by that time he had already went away and after some time police came at her booth and asked her about the person who made the phone call and she told them that he had already left. PW5 further deposed that police again came to her on 03.11.2008 and alongwith the police there was a person who stated that he had given a ring from her STD booth and she told the police that payment of Rs. 6/ was given to her. At the time police brought the said person, she identified the said person a little bit from the white shirt he was wearing. PW5 pointed out towards accused Sandeep Tyagi and stated that he was the person who came with the police and was the person who paid Rs. 6/ to her.
PW9 Shambhu Nath deposed that he has a shop of PCO at Mahavir Enclave and on 15.10.2008, the kidnapper made a phone call from his PCO at 5:30 P.M and he paid the amount of Rs. 3/ being the call charges. He further deposed that S.C No. 62/11 59/73 60 the phone installed at his PCO was 9718644371 and after five minutes, a call was received and it was informed that the call was from PS: Chhawla and he was asked to disclose as to whether the person who had made the call just then was available or not. He was also asked to ascertain whether that person had come on foot or on a motorcycle or on a car and he told that the said person had not brought the vehicle up to the PCR booth but was carrying a helmet. PW9 deposed that he can identify the person, who had made the phone call and this witness had identified the accused Sandeep Tyagi to be the person after pointing out towards him, who had made the phone call. Further during his cross examination by the Ld. Addl. PP, PW9 stated that it may be that accused Sandeep Tyagi had come to make a phone call on 19.10.2008 instead of 15.10.2008 and he do not remember the exact date as the matter is one year old.
The important fact is that both these witnesses i.e PW5 Sumita Khosla and PW9 Shambhu Nath were cross examined by the Ld. Defence counsel, but nothing material has come on record which could shake the credibility of these witnesses or could be of any help to the accused. In her cross examination by the Ld. Defence counsel , PW5 stated that she was able to recognize the accused as immediately after making a phone call, he received a call from the police to track the said person and the phone by the police came within five minutes of making of call. Further in his cross examination by the Ld. Defence counsel, PW9 denied the suggestion that he was deposing falsely at the instance of the complainant or that Sandeep Tyagi never came at his PCO booth or did not make any telephone call. PW9 also denied the suggestion that Sandeep Tyagi was shown to him by the police outside the court on 24.8.2009.
23. The other incriminating circumstance against the accused persons in this S.C No. 62/11 60/73 61 case is that the phone from which ransom calls were being made by the kidnappers have been found to be used by the accused Sandeep during the relevant period.
In this regard, PW42 Insp. Rishipal Singh stated that on 24.10.2008 one Ravinder Tyagi , resident of Revla Khanpur came to the police station Chhawla and he informed that he had received a threatening call on his mobile phone on previous day, wherein he was directed to get Dharamveer Tyagi in touch with the caller on phone and accordingly he recorded his statement u/s161 Cr.PC and the said Ravinder Tyagi had informed him that he had got threatened call from mobile number no. 9711522743 and he had mobile no. 9211642197. PW42 further deposed that the Vodaphone company of which mobile no. 9711522743 was approached to provide call detail records. The call detail records were received by him on the same day. PW42 further deposed that the perusal of the said printouts confirmed that calls were made from mobile number 9711522743 to the mobile numbers 9211642197 of Ravinder Tyagi and 9211646271 of Omanand. It is also reflected that from mobile number 9711522743, call was made on 23.10.2008 to landline number 65248206 of complainant Dharamveer and the cell ID of the date further shows that the calls were made from mobile no. 9711522743 by the caller when he was in the Cell ID no. 2233 and it reveals that the location 2233 was of West Delhi, Kakrola. The perusal of the chart further indicated that the IMEI number of the instrument in which Sim 9711522743 was used was 352261016839730. PW42 deposed thereafter he requested vodaphone company to provide him the ownership details of the said mobile instrument and he also requested to provide him the information which other Sim Cad was used in the said instrument and the said information was provided to him by the Vodaphone company and the scrutiny of the same revealed that aforesaid mobile instrument was previously used with a Sim Card having number 9873105567 in the month of August 2008. PW42 further deposed S.C No. 62/11 61/73 62 that on the same day, it was informed that mobile Sim Card No.9873105567 was in the name of Ajay Tyagi R/o Revla Khanpur, Delhi and accordingly, he reached village Revla Khanpur at the residence of Ajay Tyagi S/o Chand Singh, who was found to be the owner of mobile Sim Card No. bearing the last 3 digits as 567 but he do not remember the complete number and after refreshing memory, he stated that the number to be 9873105567. PW42 deposed that he met Chand Singh at that house and inquired from him about Ajay Tyagi and he informed that Ajay Tyagi was his elder son and thereafter he met Ajay Tyagi and inquired from him about the mobile telephone having Sim Card No. 9873105567 and Ajay Tyagi told him that aforesaid mobile number was in his name, but same was being used by his younger brother Sandeep Tyagi . Ajay Tyagi told him that his younger brother Sandeep Tyagi was residing in Flat No. 807, CRPF Quarters, Sec16, Dwarka and that mobile having Sim Card No. 9873105567 may be available with his younger brother Sandeep Tyagi. Thereafter he took Ajay Tyagi with him and he took him to flat no. 807, CRPF Quarters, Sec16 Dwarka and Sandeep Tyagi met him there and he interrogated Sandeep Tyagi and on deep interrogation, he told that the said mobile phone having the aforesaid sim card no. 9873105567 was being used by him and during the interrogation, the name of coaccused Sri Om Tyagi also surfaced.
Further , from the CDR of above said mobile phone, it is reflected that eleven calls were made between the mobile number of accused Sri Om Tyagi bearing no. 9250448209 and accused Sandeep Tyagi bearing mobile no. 9873105567 on 01.10.2008 i.e. on the day of incident and out of these, eight calls were outgoing from the mobile of accused Sandeep Tyagi and three calls were incoming from the mobile of Sri Om Tyagi .In addition to this, the CDR ( Ex.PW35/2) and Cell ID Chart ( Ex. PW35/4) of mobile phone no. 9873105567 of accused Sandeep Tyagi reveals that on 0110.2008, the said mobile moved in the Cell ID 22333 ( Kakrola), S.C No. 62/11 62/73 63 23102 ( Najafgarh), 18871 and 18873 ( Najafgarh), 51072 ( Shahpur), 49801 ( Uttam Nagar) and 41853 ( Janakpuri) and all these places pertains either to the institute of the deceased or adjoining to Dwarka, where accused Sandeep Tyagi resided or village Chhawla, where accused Sri Om Tyagi. Further, the said record also reveals that no calls were made between the mobiles of accused Sandeep Tyagi and Sri Om Tyagi between 16:33:17 P.M to 17:45:49 P.M, which according to the prosecution was the period during which both the accused kidnapped the victim and this assertion is also corroborated from the fact that during this period the mobile number 9873105567 of accusedSandeep Tyagi moved from Janakpuri to Kakrola.
In addition to above, the case of the prosecution regarding the receipt of the ransom telephonic calls from the mobile phone number of accused Sandeep have also been supported to some extent by the PW11 Sh. Oma Nand & PW12 Sh. Ravinder Tyagi PW11 Sh. Oma Nand deposed that the number of his mobile phone was 9211646271 and on 23.10.2008 he received a phone call from a mobile number, the number whereof he does not remember, at about 8:45 AM and he was asked whether he knew Dharambir or not and he replied that he knew him and no other talk took place. Similarly, PW12 Sh. Ravinder Tyagi deposed that the number of his mobile phone was 9211642197 and on 23.10.2008 he received a phone call between 8:00 and 9:00 PM from a number, which he does not remember and he volunteered to state that the number was mentioned in the report lodged by him with the police. It is pertinent to note here that the number of said mobile phone mentioned in the police report of PW12 led to the identification of mobile phone number of accused Sandeep Tyagi from which the ransom calls were made in this case.
24. The other incriminating circumstance brought on record against the S.C No. 62/11 63/73 64 accused persons in this case by the prosecution is that DNA of the blood which was lifted from the floor of Wagon R car bearing no. DL 9CS 2813 used in the commission of offence in this case matched with the DNA of the parents of the deceased Sandeep Tyagi @ Sanju .
In this regard, it has been deposed by the PW30 SI Kishore Pandey that on 14.11.2008, he alongwith Insp. Rishipal Singh, IO had taken out vehicle no. DL 9 CS 2813 make WaganR from malkhana and went in the said vehicle to FSL, Rohini, where it was examined by Sh. Naresh Kumar Scientific Officer and blood stained piece of carpet was seized as well as blood found between driver and rear seat at three places were lifted and all these articles were taken into possession vide memo Ex. PW30/1. PW30 further deposed that on 04.12.2008, he alongwith Insp. Rishipal had again gone to FSL, Delhi, where complainant Dharambir and his wife Smt. Munesh Devi were called for the purpose of obtaining blood samples for DNA testing and the said samples were taken and were retained by the FSL for purpose of DNA testing.
The above said blood sample/exhibits were examined by the PW41 Sh. A.K. Srivastava, Deputy Director ( Biology), DNA Units, FSL and he deposed that in this case on 04.12.2008, two forensic samples were deposited and on the same day, blood sample of Sri Dharamvir and Smt. Munesh Devi were also collected in DNA Unit of FSL Rohini. At the time of taking blood samples identification form of Sri Dharamvir and Smt. Munesh Devi were filled up and blood samples were taken in his presence. The identification form of Dharanmvir was Ex. PW17/15 and the identification form of Smt. Munesh Devi was Ex. PW17/16 . Both the forms were having photographs of the persons whose blood samples were taken in his presence at FSL Rohini on 04.12.2008. PW41 further deposed that all the parcels and blood samples were subjected to DNA isolation. DNA was isolated from exhibit 2, S.C No. 62/11 64/73 65 (i.e a piece of gauze cloth described as blood in gauze). It was parcel no.2. Exhibit 3 and 4 were also isolated DNA , which were the blood sample of Sh. Dharamvir and Smt. Munesh Devi respectively. DNA could not be isolated from exhibit 1. STR analysis was used for each of the samples. Data was analyzed by using Genescan and Genotype Software. PW41 deposed that as per the results of examination, the alleles as per source of exhibit 3 ( blood sample of Sri Dharamvir) and alleles as per source of exhibit 4 ( blood sample of Smt.Munesh Devi) was matching with alleles of source of exhibit 2 ( gauze). The DNA profiling (STR Analysis) performed on the exhibits provided a sufficient to conclude that exhibit 3 (blood sample of Sri Dharamvir) and exhibit 4 ( blood sample of Smt. Munesh Devi) are biological relation with the source of exhibit 2 (gauze). PW41 has proved his reports in this regard as Ex. PW41/1 to Ex. PW41/4 respectively.
Hence, in view of the above report of PW41, it is evident that blood found in the Wagon R Car no. DL9CS2813 used by the accused persons in the commission of offence in this case pertained to victim/deceased Sandeep @ Sanju and this again corroborates the case of the prosecution.
Ld. Defence counsel has relied upon the case law cited as 1993 JCC 430, AIR 1991 SC 1108, 1999 Crl.L.J 467, 2010 ( Suppl.) Crl. L.R (SC) 458, 2004 SCC (Crl.) 1893, SLP ( Crl.) 4419 of 2009, Crl. Appeal No. 1410 of 2010 (SC) and 2005 SCC ( Crl. ) 1715, however the said case law is not applicable in the instant case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed therein and in my considered opinion, the aforesaid case law is not of any help to the accused in the present case..
25. It has been submitted by the ld. defence counsel that prosecution has been mainly relying upon the testimonies of PW17 Sh. Dharamvir Tyagi and S.C No. 62/11 65/73 66 PW15 Sushil Tyagi, who are relatives of the deceased and are highly interested witnesses and their testimonies in the absence of any independent corroboration could not form the basis of the recording of the conviction against the accused persons , however the said submissions made on behalf of the accused are devoid of any merits as a witness can not lack credibility only on account of the fact that he or she is related to the deceased, if otherwise the said witness appears to be trustworthy and no personal enmity of the witnesses have been alleged towards the accused. In fact, the relation of the witnesses with the deceased can hardly be a ground to discard their version.
In the case titled as " Sonelal Vs. State of M.P." ( reported as 2009 I AD (Cr.) (S.C.) 263), it has been laid down by the Hon'ble Supreme Court of India that:
"We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose J. it was observed:
" We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur".
Further, in the case titled as "Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu" ( reported as 2008 V AD (Cr.) (S.C.) 327), it S.C No. 62/11 66/73 67 has been laid down by the Hon'ble Supreme Court of India that:
" Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person".
In support of his above said contentions regarding interested witnesses , Ld. Defence counsel has relied upon the case law cited as 1981 Crl.L.J. 484, 2002(2) JCC 1304 & 1994) 5 SCC 188, however the said case law is not applicable in the present case as the fact and circumstances of the instant case are distinguishable from the fact and circumstances of the case discussed therein and in my considered opinion the aforesaid case law is not of any help of the accused in view of the law laid down by the Hon'ble Supreme Court of India in the above mentioned cases reported as 2009 I AD (Cr.) (S.C.) 263) & 2008 V AD (Cr.) (S.C.)
327.
26. It has been submitted by the ld. Defence counsel that there were material contradictions/discrepancies and improvements in the testimonies of various prosecution witnesses and these contradictions/ discrepancies and improvements were fatal to the case of the prosecution, however the said contentions put forward on behalf of the accused do not hold water and are contrary to the record as perusal of the testimonies of the various prosecution witnesses reveals that there S.C No. 62/11 67/73 68 were no material contradictions/discrepancies and improvements in their testimonies and the contradictions/discrepancies and improvements, if any were minor or trivial in nature and these were not fatal to the case of the prosecution.
In the case titled as "Sukhdev Yadav and others Vs. State of Bihar"
(reported as JT2001(7) SC597), it has been laid down by the Hon'ble Supreme Court of India that: "The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes, there would be a deliberate attempt to offer the same. Sometime, the witnesses in their over anxiety to do better from the witness box details out an exaggerated account."
In regard to the improvements and contradictions/omissions, Ld. Defence counsel has relied upon the case law cited as 2010 (4)JCC 3040, 1980 Crl.L.J. 1397, AIR 1979 SC 1408, AIR 2011 SC 349, AIR 2011 SC 2302 & AIR 1975 SC 1026, however, the said case law is not of much help to the accused in the present case in view of the law laid down by the Hon'ble Supreme Court of India in the above mentioned case reported as JT2001(7) SC597 and in view of the fact that there does not appear to be any material contradiction/discrepancies or improvements in the testimonies of various prosecution witnesses, which can be said to be fatal to the case of the prosecution.
27. It has been submitted on behalf of the accused persons that the present S.C No. 62/11 68/73 69 case is solely based on circumstantial evidence and as such the prosecution was required to prove proper and clear motive so as to make accused liable for the commission of crime, but the prosecution has miserably failed to prove any motive on record, however the said submissions made on behalf of the accused persons are devoid of any merits and are contrary to the record as in view of the material on record, it is evident that motive for kidnapping of the victim Sandeep Tyagi @ Sanju was demand of ransom and it has been established that the said ransom was demanded from the father of the victim Sandeep Tyagi @ Sanju by the accused. Even otherwise, the prosecution is not required to prove the motive of any offence in a criminal case as has been laid down by the Hon'ble Supreme Court of India in the case cited as 1981 CRL. L. J. 714 In the above said case titled as 'State of Haryana Vs Sher Singh & Ors. (cited as 1981 CRL. L. J. 714)', it has been laid down by the Hon'ble Supreme Court of India that :
"The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to the others. If the motive is proved by the prosecution, the court has to consider it and see whether it is adequate".
In the instant case, the prosecution has been able to establish on record that accused persons were in dire need of money due to the loan being availed and the vehicles being purchased by them and due to the said financial constrains, they entered into criminal conspiracy to kidnap the victim for demanding ransom from his father and as such the motive regarding ransom has been clearly proved on record by the prosecution in this case.
S.C No. 62/11 69/73 7028. It has been submitted by the Ld. Defence counsel for accused Sri Om Tyagi that no evidence or material have been brought on record by the prosecution to show that accused Sri Om Tyagi was ever seen in the company of coaccused Sandeep Tyagi during the relevant period i.e. from 01.10.2008 to 25.10.2008 and even on the alleged date of incident i.e. 01.10.2008, none has seen these two accused together and the prosecution has not brought on record any material/ evidence to show that accused Sri Om Tyagi was ever seen in the company of accused Sandeep Tyagi, when he was allegedly making ransom call to the complainant. It is further submitted that prosecution has miserably failed to bring on record any evidence or material to prove that any meeting of mind for doing a wrongful act between two accused or for that matter, they were ever seen in the company of each other during relevant period and as such the prosecution has failed to prove any conspiracy between accused persons in this case, however the said contentions put forward on behalf of the accused Sri Om Tyagi are devoid of any merits as it is well settled that there can not be any direct evidence to establish the existence of criminal conspiracy and the same is to be inferred from attending circumstances and from the conduct of the accused persons prior and subsequent to the incident.
In the present case, the CDR pertaining to both the accused proved on record by the prosecution clearly establishes that there were frequent telephonic calls between accused Sri Om Tyagi and Sandeep Tyagi prior to the commission of offence and immediately thereafter. Further , from the CDR of above said mobile phones, it is reflected that eleven calls were made between the mobile number of accused Sri Om Tyagi bearing no. 9250448209 and accused Sandeep Tyagi bearing mobile no. 9873105567 on 01.10.2008 i.e. on the day of incident and out of these, eight calls were outgoing from the mobile of accused Sandeep Tyagi and three calls were incoming from the mobile of Sri Om Tyagi. In addition to this, it has also been S.C No. 62/11 70/73 71 deposed by the prosecution witnesses pertaining to same village that accused persons were friends and were also usually seen in the company of each other. Apart from this, the loan documents pertaining to accused Sri Om Tyagi were got recovered from his house by the accused Sandeep Tyagi and further the articles pertaining to the deceased were also got recovered at the instance of accused Sri Om Tyagi . In these circumstances, in view of the material/ evidence adduced on record by the prosecution , it is evident that both the accused Sandeep Tyagi and Sri Om Tyagi conspired with each other to commit offences in question and as such they have rendered themselves liable for the criminal acts committed by each other .
In the case titled as 'Firozuddin Basheeruddin & Ors. Vs State of Kerala (cited as V (2001) SLT 880)', it has been laid down by the Hon'ble Supreme Court of India that :
"Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of other in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a casual agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts.".S.C No. 62/11 71/73 72
29. Hence, in view of the above and in view of the material on record, the above mentioned various incriminating circumstances from which the inference of guilt is to be drawn have been cogently and firmly established on record by the prosecution and those circumstances are of a definite tendency, unerringly pointing towards guilt of the accused persons and the said incriminating circumstances, taken cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused persons and none else.
30. In the present case, in their defence, accused persons have examined two defence witnesses i.e DW1 Ms.Anju and DW2 Mulesh Tyagi and both these witnesses i.e DW1 and DW2 are not of any use to the accused persons as they have not stated anything about the incident in question. Even otherwise, the testimonies of DW1 and DW2 also do not inspire confidence as there are material contradictions/discrepancies in their testimonies. Further, DW1 Ms. Anju is the wife and DW2 Mulesh Tyagi is the cousin of accused Sri Om Tyagi and as such both these defence witnesses appear to be interested witnesses. In addition to this, both these defence witnesses i.e DW1 & DW2 have admittedly not lodged any complaint with any authority regarding the false implication of accused, which would have been the normal human conduct on their part in the facts of the present case and this again creates grave doubts in the defence being raised on behalf of the accused persons. In these circumstances, in my considered opinion, the testimonies of DW1 & DW2 lack credibility and the same are not of any help to the accused persons in the instant case.
31. Thus, in view of the above discussion & observations and having regard S.C No. 62/11 72/73 73 to the fact and circumstances of the present case and in view of the testimonies of various prosecution witnesses, I am of the considered opinion that the prosecution has been able to prove on record beyond the reasonable doubt that both accused Sandeep Tyagi and Sri Om Tyagi entered into a criminal conspiracy to abduct Sandeep Tyagi @Sanju to demand ransom from his father Sh. Dharambir Tyagi and in pursuance to the said criminal conspiracy, both accused Sandeep Tyagi and Sri Om Tyagi abducted victim Sandeep Tyagi @ Sanju for ransom and thereafter they committed murder of the said victim.
Accordingly, I hold both accused Sandeep Tyagi and Sri Om Tyagi guilty of the offences punishable u/s 120B IPC, u/s 364A r/w Section 120B IPC and u/s 302 r/w Section 120B IPC and convict them accordingly.
Now to come up for arguments on the point of sentence on 29.3.2016 .
(Announced in the open ) (Paramjit Singh)
(court on 23.3.2016) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
S.C No. 62/11 73/73
74
FIR No. 01/08
P.S. Chhawla
23.3.2016
Present: Ms. Manisha Sharma, proxy counsel for Sh. S.K.Saxena, Spl.PP for the
State with complainantSh. Dharamvir Singh in person.
Both the accused Sandeep Tyagi and Sri Om Tyagi are present in JC with their counsel Sh. Nishant Rana.
Vide separate judgment, announced in the open court, both the accused Sandeep Tyagi and Sri Om Tyagi have been convicted u/s 120B IPC, u/s 364A r/w Section 120B IPC and u/s 302 r/w Section 120B IPC .
Now to come up for the arguments on the point of sentence on
29.3.2016 at 2:00 P.M, as requested.
(Announced in the open ) (Paramjit Singh)
(court on 23.3.2016) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
S.C No. 62/11 74/73
75
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWARKA COURTS:DELHI
(Sessions Case No. 62/11)
Unique ID case No.02405R0366032009
State Vs. Sandeep Tyagi & Anr.
FIR No. : 01/2008
U/s : 120B IPC, 364A r/w section 120B IPC
& 302 r/w section 120B IPC
P.S. : Chhawla
ORDER ON THE POINT OF SENTENCE
In the present case, both the convicts Sandeep Tyagi & Sri Om Tyagi have been convicted u/s 120B IPC, u/s 364A r/w Section 120B IPC and u/s 302 r/w Section 120B IPC .
I have heard the arguments on the point of sentence put forward by Ld. Spl. PP and Ld. defence counsels for both the convicts Sandeep Tyagi & Sri Om Tyagi .
2. It has been submitted by the Ld. Spl.PP that in view of the serious and grave nature of offences, the convicts do not deserve any leniency in this case. It is further submitted that convicts have kidnapped the victim for ransom and later on they murdered him in brutal and dastartdly manner so as to arouse extreme indignation of the society. It is submitted that victim was the only son of his family and the entire family of the victim is in deep shock. It is further submitted that there was no enmity between the parties and the convicts have committed the S.C No. 62/11 75/73 76 offences in a preplanned manner to extract ransom from the father of the victim. Ld. Spl. PP also submitted that the present case falls within the ambit of 'rarest of rare cases' which requires extreme penalty i.e death sentence and he prays that death penalty may be imposed upon both the convicts.
In support of his contentions, Ld. Spl. PP has relied upon the case law cited as AIR 1985 SC 823 & AIR 2010 SC 1007.
3. On the other hand, it has been submitted by the Ld. defence counsel for convictSandeep Tyagi that said convict is not previous convict and is having clean antecedents. It is further submitted that convict Sandeep Tyagi is the sole bread earner of his family consisting of old aged parents and wife and there is noneelse to lookafter them. It is submitted that the case law relied upon by the Ld. Spl. PP is not applicable as the fact and circumstances of the instant case are different from the fact and circumstances of the cases discussed therein. Ld. defence counsel also submitted that the present case does not fall within the ambit of 'rarest of rare cases' and he prays that a lenient view qua convict Sandeep Tyagi may be taken in this case.
Further , it has been submitted by the Ld. Defence counsel for convict Sri Om Tyagi that the said convict is also not a previous convict and is having clean antecedents. It is further submitted that convict Sri Om Tyagi belongs to a respectable family and is sole bread earner of his family consisting of old age parents, wife and two minor children and there is nonelse to lookafter them. It is submitted that the case law relied upon by the Ld. Spl. PP is not applicable in the present case as the fact and circumstances of the cases mentioned therein are distinguishable from the present case. Ld. Defence counsel for convict Sri Om Tyagi also submits that the said convict has already remained in custody for about seven & half years S.C No. 62/11 76/73 77 and the present case does not fall in the category of 'rarest of rare cases' and he prays that a lenient view may be taken in this case.
4. I have carefully considered the submissions made by Ld. Spl. PP and Ld. defence counsels and have carefully gone through the record of the case. I have also carefully perused the case law relied upon by the Ld. Spl. PP.
5. In the present case, both the convicts Sandeep Tyagi & Sri Om Tyagi have been convicted for committing the offences punishable u/s 120B IPC, u/s 364A r/w Section 120B IPC and u/s 302 r/w Section 120B IPC .
Keeping in view the fact and circumstances of the present case and having regard to the manner in which the offences have been committed in the instant case, I am of the considered opinion that the present case does not fall within the category of 'rarest of rare cases'.
Ld. Spl. PP has relied upon the case law cited as AIR 1985 SC 823 & AIR 2010 SC 1007 , however the said case law is not applicable in the instant case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed therein and further, the present case does not fall within the ambit of 'rarest of rare cases'.
6. Thus, in view of the above discussion and observation and having regard to the fact and circumstances of the present case, I hereby sentence both the convicts Sandeep Tyagi & Sri Om Tyagi to undergo imprisonment for life and to pay a fine of Rs. 20,000/ each in default SI for six months each u/s 120B IPC. Both the convicts are further sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/ each in default SI for one year each u/s 364A r/w S.C No. 62/11 77/73 78 section 120B IPC. Both the convicts Sandeep Tyagi & Sri Om Tyagi are also sentenced to undergo imprisonment for life and to pay a fine of Rs. 30,000/ each in default SI for eight months each u/s 302 r/w section 120B IPC, which sentences shall meet the ends of justice in this case.
All the sentences shall run concurrently .
Benefit u/s 428 Cr.PC be also given to both the convicts.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to both the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 29.3.2016) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
S.C No. 62/11 78/73