Delhi District Court
State vs . (1) Virender @ Dillu on 18 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST) ROHINI COURTS: DELHI
Session Case No. 729/2007
Unique Case ID No.: 02404R0368172006
State Vs. (1) Virender @ Dillu
S/o Sh. Sunder Lal
R/o Village Bharthal,
Police Station Kapashera,
Delhi
(Convicted)
(2) Rohtash @ Prakash
S/o Katar Singh
R/o Village Mahra,
Distt. Sonepat, Haryana
(Acquitted)
(3) Narender
S/o Richpal
R/o Village Dhikana,
Police Station Baraut,
Uttar Pradesh
(Acquitted)
FIR No.: 902/06
Police Station: Nangloi
Under Section: 364/302/201/34 Indian Penal Code
Date of committal to Sessions Court: 6.1.2007
Date on which orders were reserved: 28.3.2012/ 3.4.2012
Date on which judgment pronounced: 7.4.2012
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 1
JUDGMENT:
1. As per allegations on 1.9.2006 at about 9:00 PM at Village Hiran Kudna all the accused namely Virender @ Dillu, Rohtash @ Prakash and Narender in furtherance of their common intention abducted Joginder S/o Mukhtiar Singh from his house in order that the said Joginder may be murdered. Further, as per allegations after abduction on 1.9.2006 all the accused committed the murder of Joginder with intention to cause his death by slitting the neck of Joginder with a blade (Ustra). It is also alleged that all the accused in furtherance of their common intention caused the disappearance of the dead body of Joginder after they murdered him and threw the dead body in a sugarcane field and removed his valuable articles i.e. gold chain, wrist watch and Nokia mobile phone and also broke the SIM card of said mobile phone, in order to screen themselves from legal punishment.
CASE OF THE PROSECUTION/ BRIEF FACTS:
2. The case of the prosecution is that on 2.9.2006 SI Ganesh Chand Maurya (Uttar Pradesh Police) was present in police station Baghpat when one Sahansar Pal came to the Police Station and informed that a dead body was lying in his sugarcane field pursuant to which information DD No. 22 was lodged after which SI Ganesh Chand Maurya along with Ct. Mehak Singh and Ct. Sukhpal reached the spot i.e. the jungle of village Teody where they found a dead body lying in the field whose neck was found cut. St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 2 On formal search of the dead body a purse containing one currency note of Rs.500/, one currency note of Rs.2/0 and four currency notes of Re1/, some coins, photograph and some phone numbers on the cards were recovered. SI Ganesh Chand Maurya tried to contact on the said numbers and on one of the numbers one Rajeev Shokeen responded and on the basis of the description giving by SI Ganesh Chand Maurya, Rajeev Shokeen informed him that the dead body might be of his brother in law Joginder. The wife of Rajeev Shokeen namely Babli informed the father of deceased Joginder namely Mukhtiar Singh about the aforesaid fact on which Vijay Singh, Ajit Singh and Joginder S/o Hukam Chand went to Baraut where they identified the dead body of Joginder.
3. Thereafter, the dead body of Joginder was brought to Delhi and got cremated. The father of deceased Joginder namely Mukhtiar Singh went to Police Station Nangloi and gave his statement to the police wherein he informed the police that on the previous night i.e. on 1.9.2006 at about 9:00PM Virender @ Dillu the cobrother/ Sandhu of Joginder had come to his house in an Ambassador car and took Joginder with him on the pretext of some work but since thereafter Joginder did not return home. He further informed the police that on 2.9.2006 at about 11:30 AM his relative namely Babli informed them that a dead body resembled as Joginder was located at Bagpat on which he sent Vijay Singh, Ajit Singh and Joginder S/o Hukam Chand to Bagpat Mortuary where they identified the dead body of his son Joginder. In his statement to the police Mukhtiyar Singh suspected that St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 3 Virender had committed the murder of his son Joginder.
4. On the basis of the said statement the present FIR was got registered and the investigations were kicked off. During investigations on 5.9.2006 the accused Virender @ Dillu was apprehended from his village Bharthal who during interrogation admitted having murdered Joginder along with his two associates. Pursuant to his disclosure statement the accused Joginder got recovered two seats of the car from the roof of his hardware shop; his own Tshirt and pants which were worn by him at the time of incident; one golden chain and wrist watch of make HMT as belonging to the deceased Joginder. Thereafter the accused Virender @ Dillu got arrested his other two associates i.e. accused Rohtash and Narender who were also interrogated during which they also admitted their involvement in the crime. The accused Rohtash got recovered a mobile phone make Nokia and accused Narender also got recovered a phone make Tata Haier as that of belonging to the deceased Joginder. The accused Virender @ Dillu also got recovered the Ambassador car bearing No. DL2CH3983. On inspection some blood stains were found on the back seat which was taken into possession by cutting the cover. On the next day i.e. 6.9.2006 all the three accused led the police team and one public witness namely Vijay Singh to the place where they had thrown the dead body of Joginder and the accused Virender also got recovered the weapon of offence i.e. Ustra handle of which ustra was broken. When they all crossed the village Jaunmana and turned right on the road all the three St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 4 accused persons got stopped the car and further got recovered the blood stained piece of seat cover of the car. After completion of investigations, all the three accused have been charge sheeted for the offence under section 364/302/201/34 Indian Penal Code.
CHARGE:
5. The Ld. Predecessor of this Court had settled the charges under Section 364/302/201/34 Indian Penal Code against all the accused to which they pleaded not guilty and claimed trial.
EVIDENCE:
6. In order to prove its case the prosecution has examined as many as twenty eight witnesses as under:
Public witnesses:
7. PW1 Devender has deposed that he was running a General Store at village Hiran Kudna and on 01.09.2006 at about 8.30/9.00 PM accused Virender @ Dhillu, who is the Saddu of his brother namely Joginder came to his shop in white colour ambassador car and told him that he wanted to go to Haridwar along with his brother Joginder in his car. On this his brother Joginder had gone to Haridwar along with the accused Virender. According to the witness, when his brother left the house he was having two mobiles of make Nokia and Tata Haier and was wearing one wrist watch and golden chain. The witness has further deposed that on the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 5 next day he made a call to his brother on his mobile, but the same was found switched off. He has correctly identified the accused Virender @ Dhillu in the Court. He has also identified the mobile phone of make Tata Haier to be set of his brother as Ex.P1, mobile phone of make Nokia to be his brother as Ex.P2, a gold chain and wrist watch of make HMT which are exhibited as Ex.P3 and Ex.P4 respectively and the Ambassador car which is Ex.P5. According to the witness, in the Test Identification Parade proceedings carried out by Sh. Amit Bansal, Ld. MM which proceedings are Ex.PW1/A he had identified the wrist watch and gold chain of his brother. He has further deposed that the deceased Joginder possessed mobile phones bearing no. 9210455914 of TATA Indicom and another number 9891415277.
8. In his cross examination the witness has deposed that Rajeev Shokeen was related to him being his brother in law (Jija) and Vijay son of Kishan Chand was his neighbour. He has admitted that on 02.09.2006 Rajeev Shokeen and Vijay had lodged a missing report of his brother Joginder Singh at police post Tikri Kalan, Delhi. He has further deposed that that Babli wife of Rajeev Shokeen is his cousin sister. According to him, Mehar Singh was a resident of their village who lived in gali next to their gali. He is not aware if police recorded statements of Rajeev Shokeen, Vijay, Babli and Mehar Singh, in the present case nor he rememberd the exact date of recording his first statement. According to PW1, on St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 6 02.09.2006, he had met police officials when some inquiries were made by the police from him but his statement was not recorded. He has testified that they received information about discovery of dead body of Joginder at Barot through his cousin Babli on 02.09.2006 at about 11.00 AM. The witness has further deposed that Babli had informed his uncle namely Kala @ Ram Kumar S/o Sh. Risal Singh about the recovery of dead body and has voluntarily added that Babli had sent for his mother to convey the message and his Chachi had come to convey the message to their house.
According to PW1, his mother went to the house of Kala @ Ram Kumar and spoke to Babli on phone on which Babli told his mother that a dead body had been discovered which had words "JSD" tattooed on the right forearm and the index finger of right hand had been amputated. He has further deposed that his mother then returned home and told his father about the phone call by Babli on which his father went to the house of Kala @ Ram Kumar and called up Babli. The witness has testified that his parents had not gone to Barot on that day but Vijay and Ajit had gone to Barot. The witness is not aware if if the postmortem examination on the body had been carried out at Delhi or at Barot. He has denied that immediately on receipt of information he himself, his mother and his father left for Barot. He has also denied that interrogation was carried out by Barot police from them when they they gave the statement that they had no knowledge as to how Joginder reached Barot. He has also denied that after identification of dead body of Joginder by them, postmortem examination St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 7 on the dead body of Joginder was conducted at Barot in their presence. He is not aware as to when when the dead body was brought to Delhi and has voluntarily stated that after seeing the body and knowing the death of Joginder, he remained in a state of shock. According to him, the body was cremated on the next day of its arrival i.e. on 03.09.06 and he did not notice any police officials in uniform at the Cremation Ground. The witness has further deposed that he had gone to the Police Station Nangloi at about 12.00 noon on the day of cremation and remained there for quite some time and his statement was recorded on that day. During the crossexamination of this witness, it was pointed out by the Ld. Addl. PP that no statement of PW1 dated 03.09.06 was in the police file and judicial file or referred to in case diary.
9. Witness has further deposed that he again went to police station a couple of day later after 3rd of September 2006 when he was accompanied by his father and has voluntarily stated that they were in different rooms at the police station where their statements were recorded. The witness has clarified that he or his any other family member had not go to the police station on 03.09.2006 i.e. the day of cremation and he had gone only once to the Police Station a couple of days later to 03.09.06 and was accompanied by his father and his cousin Babli but he is not aware if the statement of Babli was recorded on that day. He has denied that at the time of cremation of Joginder, police had arrived and made inquiries from him when he stated that he had no knowledge about the case. The witness has St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 8 further denied that they went to the Police Station on the day of cremation at about 12.00 Noon when he expressed his ignorance about the present case or that on persistent inquiries by the police, he expressed suspicion on the accused persons or that police concocted the present story on their suspicion and has voluntarily added that accused Virender had taken his brother Joginder in his presence.
10. He is unable to tell if the relations between accused Virender and Joginder were good or bad. According to him, wife of Joginder namely Meena was visiting her parents and had left about four five days earlier. He has testified that at the time of occurrence, she was also at her parents house as there were vacations in the school of her son. He is not aware if the wife of Virender was also present at the house of her parents at the time of occurrence. He has denied that Virender had never visited their house on 01.09.2006 or that he was not on visiting terms at their house. The witness is also not aware if accused Virender ever alleged that Joginder had illicit relations with his wife. He has denied that at the instance of the Investigating Officer, he has deposed that his brother had carried his mobile phones, wrist watch and gold chain. The witness has denied that all the statements were recorded by the police at the Police Station.
11. PW2 Mukhtiar Singh has deposed that on 01.09.06 at about 9.00PM Virender, cobrother of his son Joginder came to his house and told him that he was taking Joginder along with him for some work. According to the witness, his other son Devender was present at his St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 9 shop at that time and Virender and Joginder left together in white Ambassador car which was brought by accused Virender. According to the witness, Ajit and Satpal also saw both of them leaving. He has deposed that he went to sleep and in the next morning he look around for his son Joginder and asked his younger son Devender to make a phone call on his mobile phone but the phone was dead (switched off). PW2 has further testified that on 02.09.2006 at about 11.30 AM Babli, daughter of his sister in law, called up Mehar Singh on his phone and spoke to him as well as his wife and asked him the whereabouts of Joginder. The witness has also deposed that he told Babli that Joginder had left with his cobrother and was not traceable on which Babli told him that a dead body had been discovered in Baraut which had a right hand index finger amputated from the top and the alphabets JSD were tattooed on the arm of the said body. According to PW2, Babli also told him that from purse of the said body, her telephone number had been recovered and therefore a call was made to her by the police of Police Station Barot. PW2 has further deposed that thereafter he sent his neighbours and nephews namely Ajeet Singh, Vijay Singh and Jogender S/o Hukum Chand to Police Station Barot to identify the dead body and they identified the dead body which was sent to Bagpat for postmortem examination. According to the witness, thereafter the dead body was brought to the village and it was found that a gold chain from his neck and a wrist watch and mobile phone were missing. The witness has also deposed that Ajeet Singh etc. who had brought the dead body told him St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 10 that Police Station Barot had refused to register an FIR on the ground that the deceased had been killed in Delhi and dead body then brought to UP. He has testified that on 02.09.2006 he went to the police station and made a complaint on the basis of which FIR Ex.PW2/A was registered. PW2 has testified that on 17.10.2006, he was called in the court at Room No. 9, Rohini Court complex to participate TIP of wrist watch and gold chain wherein he identified wrist watch and gold chain of his son vide proceedings Ex.PW1/A. He has proved having handed over a receipt and bill of a telephone which his son possessed and also an envelop of SIM Card to the Investigating Officer on 2.11.2006 which were seized by the Investigating Officer vide seizure memo Ex.PW2/B. He has deposed that the said bill Ex.P5, receipt Ex.P6 and the SIM Card Envelope Ex.P7 were also signed by him. According to him, the bill for wrist watch and gold chain were not available with him as both these articles had been given to his son in his marriage by his in laws.
12. The witness has correctly identified the accused Virender in the Court as the person who had taken his son Joginder with him. He has also identified the case property i.e. the mobile phone of Tata Haier belonging to his son which is Ex.P1; mobile phone of make Nokia belonging to his son which is Ex.P2; the gold chain Ex.P3; wrist watch Ex.P4 as belonging to his son and the Ambassador car bearing registration No. DL2CH3983 which is Ex.P5.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 11
13. In his cross examination, the witness has deposed that he is not aware the name or rank of the officials of UP police who had refused to register the case, as he had not gone to Barot to collect the body. He has admitted that a missing report had been lodged at Police Post Tikri Kalan, Delhi regarding Joginder by Ajit and Vijay. According to him, he had not gone to Police Post Tikri Kalan and the officials from police post Tikri Kalan came to him on 02.09.06 at about 11.30 AM when his statement was recorded. He has denied that when he spoke to Babli he expressed his ignorance about the place and time of departure of Joginder or that he did not tell her anything about any place or time for which Joginder had left with any person. The witness has further deposed that he did not give any information to Delhi Police regarding the message given to him by Babli and has voluntarily added that he rushed to his village and informed his relations, who volunteered to him and visited Barot to identify the body but he himself did not go to Barot. According to the witness, police recorded the statement of Babli and Mehar Singh during investigation. He has denied that he made statement to the police after receipt of telephonic call from Babli, stating that he had no information about the time, place and date of departure of Joginder. He has testified that Joginder was cremated on 03.09.06 at about 9.00 AM and police from Police Station Nangloi had come to his house after the arrival of the dead body on 02.09.06 as well as 03.09.06. According to PW2 on 02.09.06 police had come at about 3.00PM and remained till late evening at their house. The witness has further stated St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 12 that his statement was recorded at the Police Station on 03.09.06 at about 4.00 PM and at that time he was accompanied by Mehar Singh Son of Naresh Pradhan and threefour more boys. He is not aware if the statements of those boys were recorded. The witness is not aware if the relations between Virender and deceased Joginder were good or bad but has stated that Virender was a frequent visitor to their house. He is also not aware if Virender had ever alleged that Joginder had illicit relations with his wife. The witness is also not aware if UP Police had recorded the statements of Vijay, Ajit and Joginder S/o Hukum Chand. According to PW2, his son Devender was present with him on 03.09.06 when he went to the Police Station and they both kept visiting the Police Station almost daily to know about the progress in that case w.e.f 03.09.069 till about 57 days and even thereafter. He has denied that on 02.09.06 when police from Police Station Nangloi visited his house, he stated that he had no information about the present case. The witness has denied the suggestion that at the time of cremation of Joginder, police had arrived and made enquiries from him or that he stated that he had no knowledge about the case. He has also denied that they went to the Police Station on the day of cremation at about 12.00 Noon or that at the Police Station also he expressed his ignorance about the present case. PW2 has denied that on persistent inquiries by the police, he expressed his suspicion on the accused persons or that police concocted the present story on their suspicion. He has also denied that Virender had never visited their house on 01.09.06 or that he was not on visiting terms at their St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 13 house. He is not aware if accused Virender ever alleged that Joginder had illicit relations with his wife Meena. He has further denied that he has deposed regarding his son carrying the mobile phones, wrist watch, gold chain at the instance of the Investigating Officer.
14. PW4 Devender has deposed that he was running a photo studio under the name and style of R.K. Photo Studio, Hiran Kudna, near Ghevra Mor. According to him, on 03.09.06 he was called by one Suman on which he went to village Hiran Kundana, at about 6.00 AM. The witness has further deposed that some police officials were also present there but he did not know their names and on the directions of police officials, he took two photographs of the dead body of Joginder from different angles. He has proved the negatives of the said photographs which are Ex.PW4/1 & Ex.PW4/2 and the positive prints of the negatives which are Ex.PW4/3 and Ex.PW4/4. The said witness was not crossexamined by the Ld. Defence Counsels despite opportunity in this regard and hence his testimony has gone uncontroverted.
15. PW5 Ajit Singh has deposed that on 01.09.2006 at about 9.00 PM he himself and Satpal were standing in the Gali when in the meantime, accused Virender @ Dillu (whom the witness has correctly identified in the Court), came in a White Ambassador Car and took Joginder along with him. According to the witness, he knew Virender as he (Virender) was related to Joginder as his cobrother and Joginder was a Resident St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 14 of his (witness's) village. He has testified that next morning, he came to know that Joginder had been murdered and his body had been located near Barot/Bagpat. The witness has further deposed that on getting information about death of Joginder, he called up his mobile bearing number 9210455914 but the call could not mature. He has testified that Joginder also used another mobile but he did not remember the complete number. According to PW5, he called up on the other number of Joginder also but there was no response as the phones were switched off. The witness has further deposed that thereafter he himself, Vijay and Joginder Son of Hukan Singh went to Bagpat at Mortuary and identified the dead body of Joginder. According to PW5, deceased used to wear a wrist watch and a gold chain and also used to keep two mobile phones which articles were noticed to be missing from the body. The witness has further deposed that at the time of identifying the dead body of Joginder, he signed the body identification memo Ex.PW5/A. He has proved that his statement was recorded by the Investigating Officer.
16. In his cross examination by the Ld. Defence Counsels the witness has deposed that he and deceased Joginder lived in the same Gali about 20 houses away. According to the witness, Joginder was related to him as brother being resident of the same village. He is not aware if the family members of deceased had started looking for him and has voluntarily stated that he came to know only in the next morning that he had expired. The witness has also deposed that he had gone to police post Tikri Kalan with St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 15 Vijay who made a complaint at police post Tikri Kalan. He has further testified that before going to Police Post a telephone call had been received by Mukhtiar Singh from a relation in UP regarding discovery of a body which had an amputated finger and suspected to be of Joginder after which they went to police post at the instance of Mukhtiar Singh but his statement was not recorded at that time. He has deposed that Vijay had informed the police officials of Police Post Tikri about the contents of phone call also. According to PW5 Delhi police had not gone with them to UP to get the dead body from Delhi and they went straight to Community Health Center, Bagpat and handed over a paper written by officials of Delhi Police addressed to doctors and they handed over the said paper to the doctor who delivered the body to them. He has denied that a Wrist Watch and a gold chain were also handed over by the doctor to them. According to him, he had not told Mukhtiar Singh in the night of 01.09.2006 that he had seen Joginder leaving the village with accused Virender but he told this fact to him in the morning. The witness has testified that he was not handed over any document by Delhi Police and has voluntarily added that it might have been handed over to Vijay. He has denied the suggestion that he had not seen accused Virender and Deceased Joginder together in the night of 01.09.2006.
17. PW6 Vijay Singh is the cousin of deceased Joginder who has deposed that on 01.09.2006, he came to know that Joginder S/o Shri Mukhtiar Singh had been missing from the village on which he went to St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 16 Police Post Tikri Kalan to intimate about this fact. According to him, on the next day a phone call was received from Police Station Barot regarding discovery of dead body which resembled Joginder pursuant to which he himself, Ajit Singh, Joginder S/o Shri Hukam Chand went to Barot after which they went to Community Health Center, Bagpat where they identified the dead body of Joginder vide memo Ex.PW5/A. The witness has testified that there was an incised wound on the neck of the body. He has proved that on 06.09.2006 he joined the investigation when all the three accused (whom the witness has correctly identified in the Court) who were in police custody, led the police party to village Timodi and accused Virender @ Dillu led towards sugarcane field near Electricity Pole and got recovered a Blade (ustara in broken condition and yellow colour) which Blade (ustra) was sealed and seized vide memo Ex.PW6/A. The witness has further deposed that before sealing the Ustara a sketch was prepared which is Ex.PW6/B and police had also seized blood stained earth from the spot vide memo Ex.PW6/C. The witness has also testified that the place of occurrence was pointed out by all the three accused persons vide memo Ex.PW6/D. He has further deposed that all the three accused persons thereafter led the police party to village Jonmana and pointed out a Nala and from the said nala (used for irrigation) they got recovered a blood stained piece of seat cover of the car which was was kept in a plastic pullanda and seized vide memo Ex.PW6/E. He has also proved his complaint made to Police Post Tikri Kalan about the missing of Joginder St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 17 which is Mark PW6/F and has stated that the same was in his handwriting.
18. He has correctly identified the case property i.e. plastic container containing blood stained earth which was lifted from the spot which is Ex.P8; earth control which is Ex.P9; a piece of rear seat cover which was seized from the spot which is Ex.P10 and a Blade (Ustra) with broken yellow plastic handle which according to the witness was recovered at the instance of accused Virender which is Ex.P11.
19. In his cross examination by the Ld. Defence Counsels the witness has denied that there was no suspicion on any person before the body was brought to Delhi. He did not remember if correction of date from 01.09.2006 to 02.09.2006 was made by him at point B in Mark PW6/F. He has further denied that Virender @ Dillu had not been seen by any villager leaving the village with deceased Joginder or that the accused persons were subsequently falsely implicated. According to him, no interrogation of the accused persons was carried out by the police in his presence. He has testified that four to five persons were working in the fields at village Timodi and police had recorded the statement of some of those persons also as they were interrogated as regards the presence of blood and Ustara. The witness has also deposed that the owner of sugarcane field did not have any knowledge of the presence of any Ustara but with regard to the discovery of dead body, he had already intimated the police. He has denied that he and the three accused persons had not gone with the police to village Timodi on 06.09.2006 or that Delhi Police had been informed by UP Police about St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 18 discovery of blood stained earth, body and Ustara or that this fact was told to him by Delhi Police. The witness has further denied that he signed all the recovery/ pointing out memos sitting at the Police Station Nangloi at the instance of Investigating Officer without knowing the contents thereof. He has further denied that none of these discoveries vide the above said memos were at the instance of the accused persons or that these discoveries had already been made by the UP Police. The witness has further denied that none of the accused persons pointed out the place of occurrence or led to any recovery or that he was supporting the false prosecution case being a cousin of the deceased.
20. PW7 Sh. J.S. Pawar is a Automobile Engineer who has deposed that on 30.09.2006 on the written request Ex.PW7/A of the Investigating Officer, he mechanically inspected one Ambassador car white colour No. DL 2CH 3983 and its seat matching inspection also at Police Station Nangloi at about 12.30 p.m. The witness has further deposed that after conducting the mechanical inspection of the car, he found that all the mechanical function of car were O.K. & found front seat and rear seat not matching each other and the sitting portion of the front seat did not match with the remaining seats. According to him, this portion was older than rest of the seats and was of a different make. The witness has further deposed that Investigating Officer showed him one sitting portion of a front seat of Ambassador car, at the Malkhana of Police Station which St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 19 portion he (witness) inspected with the remaining seats of the Ambassador car and the said portion of the seat matched with the remaining seats which were fitted in the Ambassador car. He has proved having prepared his report which is Ex.PW7/B which was in his hand writing.
21. He has correctly identified the Ambassador car bearing no. DL2CH3983 which is Ex.P6 and the sitting portion of front seat which is Ex.P7.
22. The said witness has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and hence his testimony has gone uncontroverted.
23. PW8 Sat Pal has deposed that he knew the deceased Joginder who was the relative/ Sadu of accused Virender @ Dillu (whom the witness has correctly identified in the Court) as his covillager and was frequent visitor to Joginder. According to the witness, at about 9.00p.m. he and Ajit Singh were present in the gali and talking to each other when accused Virender @ Dillu came in a white colour car make Ambassador and took away deceased Joginder with him in the said car. He has further deposed that on the next day he saw crowd outside the house of Joginder and when he went there, he came to know that the dead body of Joginder was discovered in village Barot. According to the witness, since he had seen the accused Virender @ Dillu and deceased together in the night at 9.00 PM and came to know in the morning that he had expired, he St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 20 suspected Virender @ Dillu to be the murderer.
24. In his cross examination, the witness has deposed that at about 9.00 AM on the next morning, he had seen a crowd outside the house of the deceased but he had not noticed the presence of any police officials at that time. He has also deposed that the house of deceased has one intervening house from his house. He has further deposed that he knew Ajit Singh and Vijay Singh and he did not notice if they were also present in the crowd and did not remember if he had seen them during the day. The witness has testified that dead body of Joginder arrived in the village on the night of 02.09.2006. He is not aware if officials of Delhi Police came to the village on 02.09.2006 nor is he aware if Ajit or Vijay went to the police station to inform that dead body had been discovered. According to the witness, he did not try to enquire into the source of knowledge of crowd as regards discovery of dead body in Barot. He has testified that on the night of 01.09.2006, he did not tell Mukhtiar Singh that his son had gone with accused Virender @ Dillu. The witness has further deposed that on 02.09.2006 in the morning hours, he had told Mukhtiar Singh that Joginder had left with accused Virender @ Dillu but he had not told him the time of their together. PW8 has further deposed that last rites were performed on 03.09.2006 at about 10.00 AM. He does not remember if officials of Delhi Police were present at the time of cremation. He is not aware if his statement was recorded prior to or later to that of Mukhtiar Singh and has stated that his statement was recorded on 03.09.2006 at the village by two St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 21 police officials. According to PW8, he did not report to the police that he had last seen the accused Virender @ Dillu with the deceased. He is not aware about the quality of relations between the deceased and accused Virender @ Dillu. He has denied that on 01.09.2006 at about 9.00 PM accused Virender @ Dillu had not visited their village or that he had not seen him the deceased in white ambassador car.
25. PW9 Manoj Kumar a resident of village Tyodi Barot, Uttar Pradesh who has deposed that he does not remember the exact date but about three years back (from the date of his deposition before the Court) he went to take grass in the field of Sahansar Pal in village Tyodi, Barot at about 9:00/ 10:00 AM when he saw a dead body of a young person aged around 2425 years wearing jeans pant and Tshirt with blood stains on it and there was some injury mark on the neck of the deceased. The witness has further deposed that Sahansar Pal the owner of the field informed the police after which police came and prepared a panchnama Ex.PW9/A wherein he put his signatures. PW9 has testified that one currency note of Rs.500/ and some coins, two photographs and two mobile phones were recovered from the dead body which were also seized. He has also deposed that besides him Sahansar Pal, Onkar Dutt, Nand Kishore and Amit Chauhan also gathered at the spot.
26. With the permission of the Court, leading question was put by the Ld. Addl. PP for the State wherein he has denied that no mobile phone was recovered from the spot in his presence.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 22
27. In his crossexamination the witness has deposed that he saw an ustra lying besides the dead body and he had not seen whether the dead body was wearing a ring, wrist watch and a golden chain.
28. During crossexamination the Addl. PP for the State sought permission to reexamine the witness which request was opposed by the Ld. Defence Counsel in view of which a specific Court Question was put by the Court whether he had seen the ustra lying near the dead body. On this the witness denied and explained that he was told about it by Sahansar Pal after three days.
29. PW10 Rajiv Shokeen has deposed that on 02.9.2006, on telephone No. 9810662686 which was in his name and which he used to keep in his house and his wife used it, one telephone call was received on this telephone number from Baghpat and his wife gave his telephone number 9873333233 to the caller and the caller from Baghpat called him on his telephone number. According to the witness, one police official was speaking on the telephone from Baghpat who told him that one dead body had been found in a field in Baghpat and on the arm of the dead body JSD was engraved and the upper portion of the index finger of the right hand of the dead body was found imputed and his telephone number was found from the dead body. The witness has testified that he informed to them that this body might be of his brother in lawJoginder and thereafter he informed his father in law Mukhtiar Singh, on the phone of neighbourer, whose name he does not remember. According to PW10, he thereafter went to Baghpat St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 23 alone and other members of his inlaws also reached there and he identified dead body of his brother in law in the Health Centre, vide memo Ex.PW5/A.
30. The said witness has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and hence his testimony has gone uncontroverted.
31. PW15 Mir Singh is the the registered owner of Ambassador car bearing registration No. DL 2CH 3983 who has deposed that on 15.8.06 he had sold the said car to Rakesh S/o Sunder Lal, R/o Bharthal, for Rs.62,000/. According to him, he had handed over the sale letter to Mr. Rakesh after signing it but they had not got it transferred. He has further deposed that on 1.11.06 he received a notice under Section 133 MV Act from the Investigating Officer to which he replied vide his reply Ex.PW15/A. He has correctly identified the car Ex.P5 from the photographs which photographs are collectively Ex.P12. The said witness has not been crossexamined by the Ld. Defence Counsels and his testimony has gone uncontroverted.
32. PW20 Meena is the wife of the deceased Joginder has deposed that her sister Babli was married with accused Virender Singh (who she has identified in the Court) and on the same day she was married with Jogender Singh. According to the witness, after the marriage her husband and accused Virender used to go to their inlaws as usual and the relations was cordial. She has deposed that her husband used to wear gold chain and St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 24 wrist watch which was given to him in her marriage and the receipt of the ownership has been lodged. The witness has testified that both her husband and Virender used to take liquor. According to her, she had gone to her parental house at Gurgaon to attend the last rites of her cousin brother (mama's son) 15 days prior to the incident and her sister Babli had gone to their parents due to quarrel between her sister Babli and her husband.
33. In his crossexamination the witness has admitted that she is residing with her parents after the death of her husband and that her sister Babli W/o Virender is also residing with them in her parental home. According to the witness, her sister had gone to their parents one day before Raksha Banda in the year 2006. She has admitted that Raksha Bandan had fallen about 1415 days prior to the death of her husband in the year 2006. The witness has also deposed that Babli had gone to their parental house about 20 days prior to the death of Jogender Singh and has voluntarily added that she (Babli) had gone due to the quarrel between her and her in laws. The witness has admitted that accused Virender used to taunt his wife Babli saying that she had illicit relations with the deceased Jogender and has voluntarily added that the said allegations were false. He has denied the suggestion that because of this quarrel Virender never used to go to the house of her inlaws i.e. Village Hiran Kudna or to her parental house and states that he used to come frequently. PW20 has admitted that when Joginder had left the house she was at her parental house and she is not aware when he left but has voluntarily added that her St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 25 brother had received the call from Jogender saying that he was with the accused Virender. She has admitted that she did not tell the police that her brother had received the call from Jogender.
34. PW21 Babli is the wife of the accused Virender and has deposed that she was married with accused Virender in the year 2000 and her sister was married with Jogender on the same day. According to the witness, initially they both sisters were resided happily and their husbands used to come at their parental house frequently. She has deposed that on the day of Raksha Bandhan fallen in the year 2006 she came to her parental house when and her husband was insisting her to come back on the next day but she was was suffering from fever. The witness has further testified that the day after Raksha Bandhan her husband telephoned her and he came to her parental house to take her after which she went with him to her matrimonial house but as soon as she got down from the car at their residence her husband started beating her without any reason due to which reason on the next date she again went back to her parental house and ever since she has been residing there. According to the witness, her husband used to taunt her and make false allegations against her of having illicit relations with Joginder.
35. In her crossexamination the witness has deposed that she had gone to her parental house about 20 days prior to the death of Joginder Singh and since then she is residing with her parents. According to the witness, her husband had started taking liquor and used to beat her after St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 26 consuming liquor. She has denied the suggestion that he used to make these allegations on her character only after consuming alcohol and has voluntarily added that he used to make these allegations at any time. She has admitted that after her dispute with him her husband did not visit her parental house and that this dispute took place about 20 days prior to the death of Joginder. She has further deposed that Meena also reside with their parents at Gurgaon and had also come to their parental house 20 days prior to the death of Jogender. She is unable to tell whether her husband used to go to matrimonial home of her sister Meena at Village Hiran Kudna.
36. PW26 Sh. Sahansar Pal has deposed that he is a farmer by profession and about three and a half years prior to his deposition, it was around 8:30AM when he had gone to his field and found one dead body of unknown person near the electric pole on the one side of the road. According to him, the dead body was found wearing one TShirt and one jeans pant and the face of the dead body was towards the ground. He has deposed that there was cut wounds on the neck of the dead body and he informed the Chowkidar and thereafter informed the police. The witness has further deposed that one purse containing one note of Rs.500/, some change and some documents taken out from the pocket of the deceased which was seized by the police vide seizure memo Ex.PW16/A and at that time Amit, Nand Kishor and Manoj were also present there.
37. In his cross examination by Ld. Defence counsels the witness has deposed that some police officials from Delhi Police came to his residence St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 27 prior to 6th of August 2010. According to him the distance between his house and the field where the dead body was found, was about one kilometer and when he was on the way to his field, one Surender from his village told him that a dead body was lying in his field and when he reached his field there were two persons already standing there. He has testified that on seeing the dead body all three of them came back to the village for lodging a complaint with the police. The witness has further deposed that they took the Chowkidar of village and went to the police station to lodge the complaint and they came back to the fields in the official vehicle of the police with them. He is not aware since when the dead body was lying in his fields and is also unable to tell whether any police officer would have reached his fields before he went there on being told about the dead body. Witness has further deposed that in his presence nothing was lifted by the police from the spot and he cannot tell if before he reached the spot anything lying there would have been lifted by police. He has denied the suggestion that the person who informed him regarding dead body, also informed that one golden chain, a wrist watch, two mobiles and an Ustara were also there. According to him, he remained present at the spot for about half an hour and the chowkidar took search of the dead body and a purse was taken out from the back pocket of the pant which the dead body was wearing and besides that nothing was taken by the police in his presence.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 28
38. PW27 Amit Chauhan has deposed that he is a farmer by profession and about four years back (from the date of his deposition in the Court), it was at 12:00 Noon when he had gone to his field and found one dead body of unknown person near the electric pole on the one side of the road. According to him the dead body was found wearing one TShirt and one jeans pant and the face of the dead body was towards the ground. The witness has further deposed that there was cut wound on the neck of the dead body and someone informed the police. He has also deposed that one purse containing one note of Rs.500/, some change and some documents was taken out from the pocket of the deceased and at that time Nand Kishore and Manoj were also present there with him.
39. During his cross examination by Ld. Defence Counsel witness has deposed that his statement was not recorded by the police. He has denied the suggestion that one razor (Ustara) was lying near the dead body when he saw it. On a specific Court Question the witness has explained that he did not find any razor/ ustara lying in the place around the body and has voluntarily stated that he is unable to tell if there could be ustara lying away from the body because he only saw the place around the body.
40. He has also testified that in his presence no mobile was recovered from the dead body. According to him when he reached the place from where the dead body was recovered, 1012 public persons were already present and besides 1012 public persons three to four police officials were also found present at that place. Witness has further deposed that when he St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 29 reached the spot the police was sealing the dead body and thereafter they took the body away. He has testified that he only stayed at the spot for about three to four minutes and the police did not lift anything in his presence. He is unable to tell as to what proceedings were conducted before he reached the spot. The witness has also deposed that no public person told him what proceedings took place before he came to the spot and that one gold chain, wrist watch, two mobiles and one Ustara was recovered from the spot. He has denied the suggestion that the public person had told him that one gold chain, wrist watch, two mobiles and one Ustara was recovered from the spot.
41. PW28 Sh. Rakesh has deposed that he had purchased Ambassador car bearing no. DL 2C H 3983 from his "Taoo" Meer Singh for a sum of Rs.62,000/ in the year 2006. According to him, when this incident took place the aforesaid Ambassador car could not be transferred in his name and he handed over the copy of the RC of the car to the Investigating Officer. The witness has further deposed that the said car was stationed in the workshop of Raju Mistri and Police took the same from the workshop. He has further deposed that he obtained the said car on superdari and no other person was driving the aforesaid car.
42. During his cross examination by Ld. Addl. PP for the State for the state witness has admitted that he had purchased the aforesaid Ambassador Car on 15.08.2006. According to him, he is 10th class pass and can read Hindi very well. He has admitted that in the year 2006 he was running a St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 30 Parchoon Shop and has deposed that the fact that on 01.09.2006 the aforesaid car was being driven by his brother Virender was not stated by him to the Investigating Officer in his statement. He has denied the suggestion that he had stated in his statement Ex.PW28/A that on 01.09.2006 the aforesaid car was being driven by his brother Virender @ Dillu. He has admitted that the accused Virender @ Dillu is his real brother and has denied the suggestion that he was not giving the fact mentioned in the portion A to A of his statement Ex.PW28/A deliberately in order to save the accused Virender being his real brother. He has also denied the suggestion that he was not giving the aforesaid fact as he have been won over by him or that with intent to save his brother Virender he has deposed falsely on the fact mentioned in portion A to A of his statement Ex.PW28/A. The witness has also produced the ambassador car bearing no. DL 2C H 3983 which he had taken on superdari which car is Ex.P5. The said witness has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
Medical witnesses:
43. PW14 Dr. Pradeep Kapoor Medical Officer, Community Health Center Baghpat has deposed that on 2.9.2006 he was posted as Medical Officer, Community Health Center when he conducted the postmortem examination on the dead body of Joginder Singh S/o Mukhtyar Singh.
According to him, the dead body was sent to mortuary by SO PS Baghpat in a sealed bundle of cloth along with 11 annexures. He has proved that on St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 31 examination of the dead body, following antimortem injuries were found on the dead body:
1. Incised wound on front of the neck of size 16 cms x 6 cms x bone deep margins of the wound was clean cut. On dissection, all the intervening tissues, muscles, arteries, trachea, oesophagos cut at level of this wound. The level of incised wound was 3.5 cm below right ear lobe; 3.0 cm below chin in front and 4.0 cm below left ear lobe.
2. Abrasion of size 1.5 cms length x 0.5 cms over left first knuckle.
3. Abrasion of size 1.2 cms length x 0.5 cms over left second knuckle.
44. The witness has further testified that on internal examination of the body, the face appeared pale, right and left lung and hear appeared pale, stomach was found empty and normal. He has proved the postmortem examination report which is Ex.PW14/A and has also proved that in his opinion the cause of death was due to shock and hemorrhage due to above antemortem injuries, time since death was about 3/4th day old i.e. 18 hours approximately. According to the witness, the clothing items which were recovered from the dead body were bundled in a cloth and sealed and handed over to the accompanying police Constable. The witness has testified that on 27.9.2006 Inspector R.S. Malik had moved an St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 32 application to provide an opinion whether the injures on the dead body of the deceased could be caused with the weapon produced. According to him, the Investigating Officer produced one sealed pullanda which was opened and it was found to contain one 'Ustra' with broken plastic handle of yellow colour. He has proved having prepared the sketch of the 'Ustra' with its actual size and opined that the injuries mentioned in the postmortem report can be caused by the weapon produced which opinion is Ex.PW14/B. The witness has testified that after examination the weapon was resealed with the seal of hospital and handed over the same to Inspector R.S. Malik. He has correctly the said ustra which is Ex.P11. In his crossexamination the witness has deposed that the said broken plastic pieces of handle were not seen by him.
Police/ Official witnesses:
45. PW3 ASI Rajbir has deposed that on 02.09.2006, he was posted at Police Station Nangloi and was working as Duty Officer. According to him, on that day one Mukhtiar Singh came to the Police Station and on his statement FIR No. 902/06 U/s 364/302 I.P.C was recorded copy of which is Ex.PW2/A. He has also proved having made Kayami DD entry No. 34 regarding the registration of the FIR vide DD No. 34 copy of which is Ex.PW3/A.
46. In his cross examination the witness has deposed that Insp. R.S. Malik was present in the Police Station when complainant Mukhtiar Singh St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 33 came to the Police Station. According to him, the statement of Mukhtiar Singh was made orally by him which was reduced into writing by him. He has denied that the FIR was dictated by Insp. R.S. Malik or that complainant Mukhtiar Singh merely signed the same.
47. PW11 HC Tarif Singh is the MHCM who has deposed that on 5.9.06 he was posted as MHC(M) in Police Station Nangloi and on that day Inspector R.S. Malik had deposited one sealed pullanda sealed with the seal of RS alleged to be containing one pant and shirt of accused Rohtash @ Parkash along with one mobile phone make NOKIA without SIM card bearing EMI No. 355383000824079. He has further deposed that on that day Inspector R.S. Malik had also deposited one more sealed pullanda sealed with the seal of RS alleged to be containing one shirt of accused Narender along with one mobile phone make HAIER bearing No. ESN 307D4F61C1000. According to the witness, Investigating Officer had also deposited one more pullanda sealed with the seal of RS alleged to be containing one car seat cover; another pullanda sealed with the seal of RS alleged to be containing one gold chain and wrist watch; one ambassador car of white colour No. DL 2CH 3983 and one pullanda sealed with the seal of RS alleged to be containing pieces of seat cover stained with blood and personal search articles of accused Virender, Narender and Rohtash. The witness has also deposed that the entry of the above articles/pullandas were made at Sl. No. 5612 of register No. 19 copy of which is Ex.PW11/A. St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 34
48. According to him, on 6.9.06 Inspector RS Malik had deposited one pullanda sealed with the seal of RS alleged to be containing blood stained "ustra"; one more pullanda sealed with the seal of RS alleged to be containing one blood stained seat cover; another pullanda sealed with the seal of RS alleged to be containing blood stained earth and personal search of deceased i.e one purse containing one currency note of Rs.500/ one currency of Rs.2/ and four currency note of Rs.1, one Tabeej and some phone numbers and some cards. He has further deposed that on that day Investigating Officer had also deposited one envelope and one pullanda sealed with the seal of RS alleged to be containing clothes of the deceased and he made an entry of above articles at Sl. No. 5613 of register No. 19 copy of which is Ex.PW11/B. According to PW11, on 12.10.2006 on the instructions of Investigating Officer ten sealed pullandas along with FSL Form were sent to FSL Rohini through Ct. Rambir Singh vide RC No. 472/21/06 and after depositing the same he had deposited the receipt with him. He has testified that on 01.10.2007 ten sealed pullanda along with one envelope containing the report were deposited in Malkhana by Ct. Vijay, pursuant to which he made the entry in register No. 19 are Ex.PW11/C and Ex.PW11/D. He has also proved the RC register copy of which is Ex.PW11/E. The witness has proved that on 17.10.2006 Inspector RS Malik had taken the pullanda alleged to be containing wrist watch and chain for the TIP of the same and after the judicial TIP the pullanda sealed with the seal of AB were deposited in the Malkhana vide entry Ex.PW11/F. St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 35 According to him, on 27.9.2006 Investigating Officer Inspector R.S. Malik had taken sealed pullanda sealed with the seal of RS alleged to be containing ustra for taking opinion from the doctor and after taking the opinion he had deposited the pullanda in malkhana sealed with the seal of Medically Gun UP Baghpat ( Meerut Dispensary) vide entry in register No. 19 which Ex.PW11/G. He has proved that the sealed pullandas remained intact during his custody and he did not interfere with them nor he allowed anyone to interfere with them. The said witness has not been crossexamined by the Ld. Defence Counsels and his testimony has gone uncontroverted.
49. PW12 Ct. Ramvir has deposed that on 12.10.2006 while posted as Constable in Police Station Nangloi he took 10 sealed pullandas along with the FSL form from the MHCM for depositing the same in the FSL.
According to him, he deposited the pullandas in FSL rohini and thereafter deposited the receipt with the MHCM. He has proved that the sealed pullandas remained intact during his possession and he did not interfere with them not he allowed to interfere with it. He has not been cross examined by the Ld. Defence Counsels despite opportunity in this regard.
50. PW13 SI Mahesh Kumar has deposed that on 27.9.2006 while posted as Draftsman in Crime Branch, on the request of Inspector R.S. Malik he went to the field of Sahansar Pal S/o Raghubir Singh Village Tyodi where at the instance of Sahansar Pal he took rough notes and measurement. According to him, on 20.10.2006 he prepared the scaled site St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 36 plan which is Ex.PW13/A on the basis of the rough notes & measurements after which he destroyed the rough notes and handed over the scaled site plan to the Investigating Officer.
51. In his crossexamination the witness has deposed that he had not obtained the signatures of Sahansar Pal on Ex.PW13/A. He has denied the suggestion that he had not taken the rough notes and measurements at the instance of Sahansar Pal or that it was not prepared at the instance of Sahansar Pal.
52. PW16 Retd. SI Ganesh Chand Mourya from Uttar Pradesh Police has deposed that on 2.9.06 he was posted as Sub Inspector in Police Station Baraut, Distt. Bagpat, UP. According to him, on that day, one Sehnsarpal gave information at Police Station Baraut that one dead body was lying in his field on which information DD No. 22 was registered at about 11.30 AM. The witness has further deposed that after receiving this information, he along with Ct. Mahak Singh and Ct. Sukhpal Singh reached the spot i.e. the jungles of village Teody where one dead body was lying in the sugarcane field of Sehansarpal. According to the witness, five public persons were made witness of panchnama and he conducted the panchnama of the dead body. He has testified that the dead body was in wet condition as there was rains in the previous night and there was wound on the neck of the dead body. The witness has further deposed that he took the search of the dead body during which one purse was found from the pocket of his pant which contained one currency note of Rs.500/; one currency note of St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 37 Rs.2/, four currency notes of Re.1/; some coins and photographs and some phone numbers on the cards inside the purse. He has proved that he seized all the articles vide memo Ex.PW16/A and the panchnama is collectively Ex.PW16/B. According to PW16, the telephone numbers which were found from the pocket of the deceased were contacted and one Ravinder responded one one call on which he informed him that JS was written on the dead body of the deceased and Ravinder told him that the dead body was of Joginder Singh S/o Mukhtiar Singh who was their relative and he would inform to his family members. The witness has deposed that he made the endorsement on the panchnama vide Ex.PW16/C. According to the witness, after sealing the dead body the same was sent to mortuary in the custody of HC Mehak Singh and Ct. Sukhpal Singh. He has proved having prepared the relevant papers i.e. Form 13 which is Ex.PW16/D; Form No. 379 regarding photo lash which is Ex.PW16/E; request for postmortem which is Ex.PW16/F and information to RI which is Ex.PW16/G.
53. He has correctly identified the case property i.e. one purse of brown colour containing one currency note of Rs.500/, one currency note of Rs.2/, four currency notes of Re.1, some coins and photograph of the deceased, some visiting cards containing phone numbers as the same articles which were recovered from the possession of dead body, which articles are collectively Ex.P13.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 38
54. In his crossexamination the Ld. Defence Counsels the witness has deposed that about 5060 persons were found present near the dead body but he did not record statement of any of the persons found present there, as there is no such practice in Uttar Pradesh. He has denied the suggestion that the dead body was having a wrist watch, gold chain and two mobile phones. According to him, Delhi Police had visited to him on 6.9.06 but he does not remember whether any public person from Delhi contacted him on 2.9.06 or not. He also does not remember whether any family member of deceased met him prior to 6.9.06. He has further deposed that nobody had contacted him when he gave information to Ravinder regarding the recovery of dead body. He has denied the suggestion that one ustra was also lying near the dead body.
55. PW17 SI Ganesh Lal has deposed that on 6.9.06 he was posted as Sub Inspector in Police Station Baraut, UP and on that day, he was working as MHC(M). According to him, on that day he handed over one envelope containing postmortem report No.236/06 of deceased Jogender S/o Mukhtiar Singh, original Panchnama, one seizure memo of purse containing Rs.560/, some coins and one pullanda containing clothes of deceased, to the Investigating Officer of this case of Delhi Police, vide memo Ex.PW17/A.
56. In his crossexamination the witness has admitted that along with the pullanda one golden chain, wrist watch and two mobile phones were also deposited. According to him, one sealed pullanda in the present case St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 39 was deposited with him in the malkhana by Ct. Sukhpal Singh on 2.9.06 but he does not remember whether any fard (seizure memo) was received along with it or not. He has deposed that he is not aware as to what was contained inside the pullanda.
57. When a specific Court Question was put to the witness on which the witness replied that he is not aware if a golden chain, wrist watch and two mobile phones were also deposited along with the pullanda in the malkhana or not.
58. The witness was thereafter recalled along with the Malkhana Register for further crossexamination during which he has placed on record the entry no.55 in the Malkhana Register which is Ex.PW17/B by way of which SI GC Morya had deposited one purse containing Rs.506 / and some coins of deceased Jogender, S/o Mukhtyar Singh, R/o Hirankoodna and HC Mehak Singh had deposited one pullanda containing clothes of the deceased which articles were handed over to Inspt. Rajender Singh Malik on 7.9.2006. According to the witness, HC Mehak Singh had deposited the clothes of the deceased mentioned at no.1 on 3.9.06 at about 77.30 AM and SI GC Morya had deposited one purse of the deceased containing Rs.506 and some coins at about 45 PM. He has testified that he had handed over the aforesaid clothes, the purse, cash of Rs.506/ and coins on 6.9.06 but he made entry in this regard on 7.9.06. According to him, the aforesaid articles were received by Inspector RS Malik of Police Station Nangloi vide furd challan Ex.PW17/C. The witness has further deposed St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 40 that he handed over the clothes and articles aforesaid in reference to postmortem report no. 236/06 of deceased Jogender S/o Mukhtyar Singh. He has admitted that there is no mentioning of the fact that the pullandas were sealed at the time of depositing or handing over. He has denied the suggestion that the Postmortem report was not sealed and only open postmortem report was handed over. The witness has further admitted that on 29.1.2010 he had correctly deposed before the Court. According to him, original panchnama was sealed in a sealed cover which was handed over to Inspt. RS Malik. He has admitted that the seizure memo of purse has not been mentioned in the register and has stated that the coins and cash were not sealed and the same were handed over to the Inspector RS Malik.
59. On a specific Court Question the witness has admitted that he did not see his official register and record before deposing on the previous date i.e. 29.1.2010.
60. According to him, he made his deposition on 29.1.2010 on the aspect of date and postmortem report number on the basis of his memory. He has deposed that he remained MHC(M) for about three years and has have made depositions in various cases during this period of three years only after seeing the official record. He has denied the suggestion that he deposed on 29.1.2010 after perusing the official record.
61. PW18 Sh. Amit Bansal the then Ld. ACMM, has deposed that on 5.10.2006 he was posted as MM in Rohini Courts and on that day he received an application for conducting the judicial TIP of the case property St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 41 in the present case which was marked to him by Sh. D.K. Jangla, Ld. MM. According to the witness, the said application was adjourned for 10.10.06 and thereafter for 17.10.06 on which date he conducted the judicial Test Identification proceedings of the case property. He has further deposed that the witnesses Mukhtyar Singh and Devender were identified by the IO/Inspt. RS Malik and they separately correctly identified the case property i.e one golden chain and one wrist watch. According to the witness, after the Test Identification proceedings the articles were resealed with the court seal and the proceedings were ordered to be sent to the concerned court in sealed cover. He has proved the Test Identification proceedings which are Ex.PW1/A bearing his signatures at point X. He has also proved that the Investigating Officer was provided a copy of the said proceedings vide his endorsement on the application Ex.PW18/A & Ex.PW18/B and copy was allowed vide his order Ex.PW18/C. He has not been crossexamined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
62. PW19 Sh. A.K. Srivastava, Assistant Director (Biology), FSL Rohini has deposed that on 12.10.2006 he was working as Senior Scientific Officer Biology, FSL, Rohini and on that day 10 parcels in connection with the present case was received in their office. According to him, he examined all the parcels containing Exhibits and submitted the biological report Ex.PW19/A and the serological report which is Ex.PW19/B. He has deposed that the aforesaid reports were forwarded to the SHO Police Station St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 42 Nangloi vide covering letter Ex.PW19/C by the then Director. The said witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
63. PW22 Ct. Ravneek has deposed that on 02.09.2006 I was posted at Police Station Nangloi and on that day he took the copy of FIR No. 902/06 from Duty Officer to the residence of Deputy Commissioner of Police, Joint Commissioner of Police at Hauz Khas and Ld. MM Sh. D.K. Janghala on his motorcycle.
64. In his crossexamination the witness has deposed that SI Sita Ram Tyagi was the Incharge of Police Post Tikri Border which police post was under the Police station of Nangloi. After seeing the missing report of Joginder which is Ex.PW6/F the witness has identified the stamp of police post Tikri Border and has deposed that the same was received at Police Post Tikri Kalan on 02.09.2006. According to him, he had not taken copy of Ex.PW6/F to deliver the same to the senior officers.
65. PW23 Retd. HC Mehak Singh (from UP Police) has deposed that on 02.09.2006 on the receipt of DD No.22 he along with SI G.C. Maurya and two other Constables reached the spot where they found a dead body of an unknown person aged about 25 years. According to the witness the dead body was found lying in the field of Sansar Pal and on the formal search of dead body one purse containing Rs.500/ and a slip containing his phone number were recovered. He has deposed that the neck of the dead body was found cut and the dead body was taken to Baghpat in a hospital St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 43 which dead body was duly identified by the relative of the deceased, after the postmortem. He has proved having prepared the memo regarding identification of the dead body which is Ex.PW5/A.
66. In his crossexamination the witness has admitted that the dead body remained unidentified till the arrival of the relatives of the deceased. He does not remember the time when the information was given to the relative of the deceased by the Investigating Officer. The witness has also admitted that the Jija of the deceased was traced from the mobile number recovered from the clothes worn by the deceased but states that he did not talk to the Jija of the deceased on the phone and has voluntarily added that the Investigating Officer had called him up in his presence. The witness has further admitted that Ex.PW5/A was prepared by him and that he had not mentioned the fact regarding the presence of Investigating Officer in Ex.PW5/A. He has testified that he had personally spoken to Rajiv and Vijay and told them about the details of the dead body recovered in the jurisdiction of their area and has voluntarily added that he had told them to reach the place and they came. According to him, all the relatives of the deceased reached at village Tiyodi and identified the dead body. He has admitted that the dead body was thereafter sent for postmortem and the documents Ex.PW6/F were handed over to the doctor. He does not recollect if the relatives of the deceased were interrogated by the Investigating Officer and they had stated that they were not aware as to how to body had reached there though they identified the body. He is also not St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 44 aware if the relatives of the deceased had told the Investigating Officer that they did not know when Jogender had started from Delhi, what happened to him and how he reached District Mujaffarnagar.
67. PW24 HC Subhash has deposed that on 5.9.2006 he was posted at Police Station Nangloi and on that day he along with Insp R.S. Malik, Ct. Amar Pal and Ct. Ravinder were present in the investigations of this case when they all reached at Gurgaon in the factory and inquired about the accused Narender and Rohtash but they were not available. According to him, thereafter they came back to village Bharthal and reached the house of Virender @ Dhillu where accused Virender @ Dhillu was present at the gate of his house after which the accused was interrogated and during his formal search and two keys of the car and his mobile phone, were recovered from him. He has proved that the disclosure statement of the accused was recorded vide Ex.PW24/A and he was arrested vide memo Ex.PW24/B and his personal search was conducted vide memo Ex.PW24/C. The witness has testified that the accused Virender led them at his Hardware shop which was at a some distance his house where he took out his clothes from under the iron pipes kept in the store and also took out a wrist watch and gold chain from the pocket of recovered pant which wrist watch and gold chain were stated to be of the deceased. Witness has further deposed that thereafter the accused Virender took them on the roof of the said shop of Hardware and had pointed out towards two seats of car and the seat cover of one seat was found torn which torn seat cover and both the seats were St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 45 taken into possession. He has proved that the seat cover was put in a pullanda and sealed with the seal of RS and both the seats were not sealed however, same were taken into possession. He has testified that thereafter the accused took them to his another house which was situated at a distance of about 400 feet from his residence and one Ambassador bearing no. DL2CH3983 was found parked there which the accused pointed out as the car which was used in this case and he had changed the front seat of this car. The witness has testified that the Investigating Officer cut the blood stained seat cover and converted into pullanda and sealed with the seal of RS after which it taken into possession vide seizure memo Ex.PW24/D and the Ambassador Car was also taken into possession vide seizure memo Ex.PW24/E. He has also deposed that the wrist watch and the gold chain and clothes of the accused Virender were also put in a pullanda and sealed with the same seal and seized the same vide seizure memo Ex.PW24/F. Witness has further deposed that the accused Virender took them in room no.1 of the said house (where the car was found parked) and accused Rohtash met them. According to the witness, the accused Rohtash was overpowered and thereafter they went to room no.2 where accused Narender was over powered. He has proved that both the accused Rohtash and Narender was interrogated and their disclosure statements were recorded vide Ex.PW24/G and Ex.PW24/H. The witness has also that the accused Rohtash took out his clothes and one mobile phone make NOIKA from a bag which was found kept under the cot which mobile phone and St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 46 clothes were kept in a parcel and took into possession and seized vide memo Ex.PW24/I after sealing the same with the same seal. According to him, the accused Narender also took out his clothes from his bed and one mobile phone make Haier without chip which also converted into a parcel and sealed with the same seal and taken into possession vide memo Ex.PW24/J. Witness has further deposed that thereafter both the accused Narender and Rohtash were arrested in this case vide memos Ex.PW24/K and PW24/L and their personal search was conducted vide memos Ex.PW24/M and Ex.PW24/N. According to the witness, all the three accused persons were brought to the police station and after getting their medical examination conducted they were sent to lockup. The witness has testified that on the next day i.e. on 6.9.2006 he again joined the investigations of this case with Investigating Officer Inspt. R.S. Malik, Ct. Jagbir and Ct. Bijender and HC Amar Pal when the accused persons were taken from the lockup and the Investigating Officer called the witness Vijay from village Hiran Kudna along with the vehicle i.e. car Innova and all the members of raiding party after which all the three accused persons left for village Diyodi. He has also deposed that they reached at the road leading to Dhikana village where all the accused persons got the Innova car stopped at a distance of about 2 KM away from village Diyodi and pointed out the place where they had thrown the dead body of the deceased after killing him. According to the witness, they found blood on the earth which blood stained earth was lifted by the Investigating Officer and kept in a St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 47 plastic jar and sealed with the same seal after which it was taken into possession vide memo Ex.PW6/C. He has proved the pointing out memo which is Ex.PW6/D. According to PW24, the accused Virender @ Dillu took them to the field of sugarcane and got recovered one razor and another stick of yellow colour and had produced the same before them after which the Investigating Officer prepared the sketch of razor which is Ex.PW6/B and sealed the same with the same seal and taken into possession vide seizure memo Ex.PW6/A. He has further deposed that thereafter all the accused persons took them to village Jaunmana Mor where they took them to the road leading to Barot, Distt. Baghpat, U.P. According to PW24, at a distance of 50 yards from Jaunmana Mor the accused got the car stopped and all the three accused took them to a pit near the road and got recovered a piece of seat cover which was blood stained and was wet which piece of seat cover was also kept in a pullanda and sealed with the same and taken into possession vide seizure memo Ex.PW6/E.
68. The witness has correctly identified all the three accused as well as the case property i.e. one phone make Tata Haier which is Ex.P1; NOKIA phone recovered from the accused Rohtash which is Ex.P2; one gold chain and wrist watch make of HMT which is Ex.P3 & P4 respectively; Ambassador car which is Ex.P5; blood stained earth which is Ex.P8; blood stained piece of rear seat cover of the car which is Ex.P10; one metallic Razor with broken yellow plastic handle which is Ex.P11; seat St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 48 cover which is Ex.P12; blood stained half sleeve Tshirt having horizontal lines, one pant belonging to accused Virender which are collectively Ex.P13; one full sleeve shirt and one pant pertaining to accused Rohtash which are collectively Ex.P14; one full sleeve shirt of Narender which is Ex.P15 and torn piece of front seat cover which is Ex.P16.
69. During his cross examination by Ld. Defence counsels the witness has deposed that no public witness was joined during interrogation of accused Virender @ Dhillu and has denied the suggestion that accused Virender @ Dhillu did not make any disclosure statement. The witness has testified that no witness from hardware shop or the shopkeeper were joined during investigations and has denied the suggestion that the wrist watch and the golden chain were already in possession of police and the same were planted on accused Virender @ Dhillu. According to him, the ambassador car was recovered from an open place. He has denied the suggestion that Virender did not take them to the field of sugarcane and did not get the razor and another stick of yellow color recovered or that the razor had already been recovered by UP police which was handed over to the Investigating Officer of this case. The witness has further denied the suggestion that accused Virender did not take them to a pit near the road and did not get recover a piece of seat cover.
70. PW25 Insp. R.S. Malik has deposed that on 02.09.2006 he was posted at Police Station Nangloi and on the night of 2/3.09.2006 he received a copy of FIR vide Ex.PW2/A from the Duty Officer for investigation after St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 49 which he reached at the spot i.e. Village Hiran Kudna, Delhi where he made inquiry from the public persons and recorded the statements of Ajeet Singh, Jogender, Satpal. According to the witness, he came to know that Jogender Singh was taken by his relative Virender Singh R/o Village Barthal in his ambassador car No. DL2CH3983 on 01.09.2006 at about 9:30 PM to Haridwar after which he did not return and as per their statements he along with the public person and SI Sita Ram went to village Barthal to verify and confirm the facts from Virender Singh, but he was not traceable. The witness further deposed that he returned back and made some other inquiries and recorded the statements and got photographs of the dead body which was already taken back to his village by his relatives from Bhagpat. According to him, on the next day he along with other staff went to Village Barthal and adjoining area in search of Virender but the accused could not be traced. He has further deposed that on 05.09.2006 he along with HC Amarpal, HC Subhash, Ct. Ravender went in search of Virender Singh and on that day Virender Singh S/o Sunder Lal, R/o Village Bharthal met him while he was coming out of his house and on interrogation the accused stated that he was the relative of Jogender Singh and admitted that Jogender had been murdered by him and his colleagues. According to the witness, arrest of Virender Singh was made at around 2 PM vide memo Ex.PW24/B and personally searched vide memo Ex.PW24/C and during his personal search a mobile phone and two keys were found which were taken into possession vide personal search memo St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 50 and his disclosure statement was reduced into writing vide Ex.PW24/A. He has proved that thereafter the accused Virender led them to a hardware shop in the village and pointed out the same vide pointing out memo Ex.PW24/D after which the accused took on the roof of the shop and got recovered two seats of the car which were taken into possession vide seizure memo Ex.PW24/D after which the accused led them to downstairs and got recovered his washed Tshirt and pant which were worn by him at the time of incident and took out one golden chain and a wrist watch with chain make of HMT belonging to deceased Jogender Singh which were sealed with the seal of RS and taken into possession vide seizure memo Ex.PW24/F. He has further testified that the accused Virender took them to his school type house where he pointed out towards two persons namely Rohtak @ Parkash and Narender Singh as his coaccused after which both the accused Rohtash and Narender were interrogated and they were arrested vide memos Ex.PW24/K and Ex.PW24/L and personally searched vide memo Ex.PW24/M and Ex.PW24/N. He has also proved the disclosure statement of both the accused Rohtash and Narender which are Ex.PW24/G and Ex.PW24/H after which Virender Singh pointed out the car parked in the school type house. According to him, on inspection of the car some blood stains were seen on the back seat which was taken into possession by cutting the cover and sealed the same with the seal of RC along with Car and seized vide memo Ex.PW24/E. He has further deposed that accused St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 51 Rohtash thereafter got recovered one bag containing his clothes worn by him on the day of this incident which were sealed and taken into possession vide seizure memo Ex.PW24/I. According to the witness, the accused Rohtash got recovered one mobile phone make Nokia without SIM which was converted into parcel and sealed with the same seal and seized vide memo Ex.PW24/I and the accused Rohtash had informed them that mobile phone belonged to deceased Joginder which was taken by him. The witness has testified that the accused Narender led them to his room and got recovered a black shirt stating that he was wearing the same at the time of committing crime and also got recovered one mobile phone make TATA/ Haier belonging to deceased which were sealed with the seal of RS and seized vide memo Ex.PW24/J. According to him, thereafter they came back to the police station and the case property was deposited with the MHC(M) of the police station.
71. He has also proved that on the next day he along with HC Subhash, Amarpal, Ct. Vijender, Ct. Jadbir with all the three accused persons started to move towards Baraut and in the meanwhile Vijay S/o Kishan Chand came there along with innova car. According to him, on 06.09.2006 when all of them were crossing the village Tiyodi at the instance of all the three accused persons the car was turned left and after crossing the village during the sugarcane fields the car was got stopped. He has further deposed that after stepping down from the car accused Virender Singh, Rohtash and Narender pointed out the place where they had thrown St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 52 the dead body of Jogender Singh after killing him during the night intervening 12.09.2006 and a memo to this effect was prepared vide Ex.PW6/O. He has testified that on inspection towards left side of the road some blood stain soil was found in the field of sugarcane after which the accused Virender Singh was asked in which direction he had thrown the said weapon by which the murder of Jogender Singh was committed. According to him, on this Virender Singh himself got recovered the weapon of offence "Ustra" handle of which was not with Ustra. He has testified that the Ustra was blood stained and a sketch of the same was prepared on a separate paper which sketch is Ex.PW6/B. He has proved having measured the Ustra on which the total length of Ustra was 14.5 cm; the length of blade was 7.8 cms and the width of blade was 2.3 cm approximately and the small piece of handle of the ustra was also found which was also taken into possession along with Ustra by making a parcel and sealed with the seal of RS and taken into possession vide memo Ex.PW6/A. The Investigating Officer has also deposed that the blood stained soil was lifted and the blood stained earth was also lifted and kept in a separate plastic Jar and sealed with the same seal and were taken into possession vide memo Ex.PW6/C after that on the pointing out of the accused persons the car was taken to village Jaunmana. According to PW25, when they crossed the village Jaunmana and turned right on the road all the three accused persons got stopped the said car stating that a blood stained piece of seat cover of the car had been thrown there after committing the crime and the same was St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 53 searched by all the three accused persons during which the seat cover was produced by Virender Singh which was in wet condition and blood stained which seat cover was put in a cloth parcel and sealed with the same seal and taken into possession vide seizure memo Ex.PW6/E. He has also deposed that thereafter that they went to Police Station Baraut where ASI Ganeshi Lal and SI Ganesh Chand Maurya met him and on inquiry ASI Ganeshi Lal handed over the sealed parcel of clothes of deceased and the inquest papers along with postmortem report which were taken against receipt and he collected the postmortem report which is Ex.PW14/A. The witness has further deposed that ASI Ganeshi Lal also handed over to him a purse containing Rs 500/ note with some coins and a photograph of deceased along with some rough papers vide Ex.PW16/A which were already taken into police possession by SI Ganesh Chand Maurya. He has further deposed that statement of SI Ganesh Chand Maurya, ASI Ganeshi Lal, HC Mehak Singh and Ct. Satpal were recorded after joining them during investigation and thereafter they came back at Police station and the case property was deposited with MHC(M) of Police Station whereas the accused persons were produced before the Hon'ble court and were sent to judicial custody. Inspector R.S. Malik has further deposed that he prepared the site plan vide Ex.PW25/A at the shop on 05.09.2006; another site plan which is Ex.PW25/B at school type house from where the car was seized and the site plan Ex.PW25/C on 06.09.2006 at the place where the body of deceased was thrown after killing the deceased. According to witness, on St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 54 27.09.2006 he alongwith HC Gajmeer Singh and draftsman SI Mahesh went to village Tyodi after taking parcel containing the weapon of offence from the malkhana where he pointed out to SI Mahesh the place where the dead body was found, the place from the weapon of offence was got recovered by accused Virender Singh, the place from where the blood stained earth was collected and on his pointing out SI Mahesh prepared the scaled site plan vide Ex.PW13/A. The witness has further deposed that Sansarpal a public person (owner of the field) was also called there and his statement was also recorded who helped them in preparing the site plan. According to him, they came back to Mortuary of District Bagpat where he had shown the sealed parcel containing weapon of offence and made a request to the doctor to provide subsequent opinion vide application Ex.PW25/D on which Dr. P. Kapoor gave his opinion vide Ex.PW14/B. He has also deposed that on 30.09.2006 mechanical inspector J.S. Pawar conducted the mechanical inspection of car DL 2CH3983 at Police Station Nangloi on his request and submitted a Ex.PW7/B. The witness has proved that on 12.10.2006 he deposited the exhibits in the office of FSL Rohini and on 17.10.2006 the Test Identification Proceedings of case property was got conducted vide Ex.PW25/E in which witnesses Mukhtiyar Singh and Devender correctly identified the case property. He has further stated that he issued a notice under Section 133 M.V. Act to one Meer Singh vide Ex.PW25/F who had given his reply vide Ex.PW15/A wherein Meer Singh had replied that on 15.08.2006 he had sold the the aforesaid car to one St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 55 Rakesh brother of accused Virender Singh and on 01.09.2006 Virender @ Dhillu was driving the said car which reply Ex.PW15/A also bear the signature of Rakesh at point B. He has proved that on 19.11.2006 he had issued another notice under Section 133 M.V Act to Meer Singh vide Ex.PW25/G to which one Baljeet had given his reply that the aforesaid ambassador car was purchased from Meer Singh by him through Rakesh, S/o Sunder Lal and on 01.09.2006 the aforesaid ambassador car was with accused Virender which reply is Ex.PW25/H. He has also testified that during the investigation one Mukhtiyar Singh had produced the receipt of Idea Phone vide Ex.P5 and also produced the invoice of TATA Haier phone which was in the name of Jogender and he took the same into possession vide seizure memo Ex.PW2/B. According to the witness, he collected the postmortem report and FSL report later on which FSL reports is Ex.PW19/A to Ex.PW19/C. He has further proved the photographs of the ambassador car reflecting the registration number DL2CH 3983 which are collectively Ex.P12. According to him, he recorded the statement of witnesses and prepared challan and filed the same in the court through SHO and the case property was deposited in the malkhana.
72. He has correctly identified all the three accused persons and the case property i.e. one phone make Tata Haier which is Ex.P1; NOKIA phone as the same which was recovered from the accused Rohtash which is Ex.P2; one gold chain and wrist watch make of HMT which are Ex.P3 & St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 56 P4 respectively; the Ambassador car which is Ex.P5; blood stained earth which is Ex.P8; blood stained piece of rear seat cover of the car which is Ex.P10; one metallic Razor with broken yellow plastic handle which is Ex.P11; seat cover which is Ex.P12; blood stained half sleeve Tshirt having horizontal lines, one pant as the same as pertaining to accused Virender which are collectively Ex.P13; one full sleeve shirt and one pant pertains to accused Rohtash which are collectively Ex.P14; one full sleeve shirt of Narender which is Ex.P15 and torn piece of front seat cover which is Ex.P16.
73. During his cross examination by Ld. Defence counsels the witness has admitted that Police Post Tikri is under Police Station Nangloi and has deposed that SI Sita Ram Tyagi was the Chowki Incharge of Police Post Tikri Border at the relevant time. He has denied the suggestion that on 02.09.2006, Incharge Police Post Tikri Border informed him that Vijay Singh and Ajeet Singh from Village Hirankoodna, Delhi had come to the police post and had given an application addressed to Incharge, Police Post Tikri Border. According to him, Ex.PW6/F was not shown or given to him by Incharge Police Post Tikri Border on 02.09.2006 but it was handed over to him by ASI Hari Om after about one month. He has denied the suggestion that he had interrogated Vijay Singh and Ajeet Singh who appeared in Police Post Tikri Border on 02.09.2006. He has denied the suggestion that he informed the Incharge Police Post Tikri Border that the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 57 application received in the Chowki be given to Vijay Singh with the direction that they would take the application to Police Station Baraut from where they had received information regarding dead body of Jogender. The witness has also denied the suggestion that he visited Village Hirankoodna on 02.09.2006 after receiving the information regarding missing of Jogender and also regarding information of the dead body of Jogender Singh from Police Station Baraut or that he had interrogated Mukhtyar Singh and Devender at village Hirankoodna who told him that Jogender Singh left his house on 01.09.2006 without telling them where he was going. PW25 has also denied the suggestion that Mukhtyar Singh and Devender also told him that they do not suspect any person in connection with death of Jogender. According to Inspector R.S. Malik, he started investigation of this case on 03.09.2006 and the dead body of Jogender Singh was brought to Village Hirankoodna in the evening of 02.09.2006 by Vijay Singh, Ajeet and others. He has testified that Mukhtyar Singh and Devender did not visit the Police Station Nangloi on 03.09.2006 and has denied the suggestion that Mukhtyar Singh and Devender visited Police Station Nangloi after cremation of dead body of Jogender and then FIR was recorded on the concocted story of Mukhtyar Singh which is ante dated i.e. 02.09.2006. According to the witness, he interrogated the witnesses Sehansar Pal and Onkar Dutt on 06.09.2005 and also recorded statement of SI Ganesh Chand Maurya and SI Ganeshi Lal and HC Mehak Singh and Ct. Sukhpal on 06.09.2006. He has denied the suggestion that SI Ganeshi Lal St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 58 and the other witnesses from Uttar Pradesh told him that one golden chain, wrist watch and two mobiles and one Ustara were also found by them with the dead body or that SI Ganeshi Lal handed over Golden Chain, wrist watch, two mobiles and Ustara to him. He has also denied the suggestion that he thereafter planted golden chain and wrist watch on accused Virender and two mobiles to Narender and Rohtash or that he made inquiries from the public persons from Village Hirankoodna and recorded statement of Ajeet Singh, Jogender S/o Hukam Singh and Satpal on 02.09.2006 after receiving information through the application Ex.PW6/F and all of them gave statement on 02.09.2006 that Jogender Singh (deceased) was missing from 01.09.2006 form his house but they did not suspect any person regarding death of Jogender Singh. He has also denied the suggestion that he did not place those statements recorded by him on 01.09.2006 on record and placed on record the fabricated statements of Ajeet Singh, Jogender and Satpal.
74. According to PW25, he the arrested accused Virender from his house from Village Bharthal and no relatives of Virender i.e. father, brother, mother etc. were found present at the house of Virender at the time of his arrest. He has testified that the house of Virender is situated in village Bharthal and is surrounded by other houses. The witness has also deposed that he asked the neighbourers to join investigation regarding arrest of Virender but they refused however, he did not give any notice or warning to public persons who refused to join the investigations. PW25 has stated that St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 59 he recorded in the case diary regarding joining of investigations by the neighbourers and regarding their refusal, however their names and particulars were not mentioned in the diary. According to the Investigating Officer, accused Virender was interrogated in Village Bharthal and no public witness was joined during the interrogation of accused Virender. He has denied the suggestion that accused Virender did not make any disclosure statement or that he fabricated a disclosure statement of Virender and got signatures of the witness in the police station. According to PW25, he he did not call chowkidar or any person from Panchayat or any other person from the village during the interrogation of the accused Virender.
75. The witness has denied the suggestion that accused Virender did not led them to any Hardware shop and did not recover any golden chain, wrist watch, seat, seat cover etc. He has further deposed that no public witness was joined at the time of interrogation of Rohtash and Narender and has denied the suggestion that Rohtash did not get recover their clothes and the mobile phones or that the mobile phones were planted upon the accused. According to Inspector Malik, he did not collect the call details of mobile phone. He has stated that he had interrogated public persons on the aspect of the place where the dead body was recovered before the arrest of the accused persons and has voluntarily added that the public persons did not tell the exact place from where the body was recovered but only informed him about the name of the police station of the area and District. He has testified that he did not interrogate the police officials from Police St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 60 Station Baraut who had lifted the body from the field and brought the same to the police before the arrest of the accused persons. He has denied the suggestion that he had come to know the exact place of recovery of the dead body through public and UP police officers much prior to the arrest of the accused persons. The witness has denied the suggestion that on 06.09.2006 none of the three accused persons got the car stopped nor they pointed out the place where they had thrown the dead body of Jogender after killing him. He has also denied the suggestion that he forcibly obtained the signatures of accused persons on Ex.PW6/A or that the ustra was recovered prior to the arrest of the accused persons and it was handed over to him by the UP police. Witness has denied the suggestion that Virender Singh has not got the weapon of offence recovered. Witness has denied the suggestion that none of the accused got recovered the blood stained piece of seat cover of the car. He has denied the suggestion that PW9 Manoj Kumar stated in his statement that two mobile phones were recovered from the dead body and the same were taken into possession by the UP police and that Manoj also saw an ustra lying besides the dead body. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
76. After completion of prosecution evidence the statements of the accused were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to the witness which they have denied. The accused Virender has stated that he is innocent and has St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 61 been falsely implicated in this case on the basis of false and fabricated evidence by the interested witnesses who are relatives of the deceased. He has stated that Ajeet Singh and Vijay had gone to Police Post Tikri Kalan on 2.9.2006 and lodged a missing report to the Incharge. According to him, the place of recovery of dead body was already in knowledge of the police and the weapon of offence was already in possession of the police which was planted upon him to falsely implicate in this case. Similarly the accused Rohtash and Narender have stated that they are innocent and have been falsely implicated in the present case and the case property was planted upon them.
FINDINGS:
77. I have heard the arguments advanced by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. First I propose to deal with all the allegations/ averments made by the public witness individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition No. witness PUBLIC WITNESSES: 1. Devender (PW1) He is the brother of the deceased Joginder and is a witness
to the last seen. He has deposed on the following aspects:
1. That he was running a General Store at village Hiran Kudna and on 01.09.2006 at about 8.30/9.00 PM accused Virender @ Dhillu, who is the Saddu of his St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 62 brother namely Joginder came to his shop in white colour ambassador car and told him that he would be going to Haridwar along with his brother Joginder in his car on which his brother Joginder had gone to Haridwar along with the accused Virender.
2. That when his brother left the house he was having two mobiles of make Nokia and Tata Haier and was wearing one wrist watch and golden chain.
3. That on the next day he made a call to his brother on his mobile, but the same was found switched off.
4. That in the TlP proceedings carried out by Sh. Amit Bansal, Ld. MM which proceedings are Ex.PW1/A he had identified the wrist watch and gold chain of his brother.
5. That the deceased Joginder possessed mobile phones bearing no. 9210455914 of TATA Indicom and another number 9891415277.
He has correctly identified the accused Virender @ Dhillu in the Court as cobrother of his deceased brother and also as the person who had taken his brother to Haridwar. He has also identified the mobile phone of make Tata Haier to be set of his brother as Ex.P1, mobile phone of make Nokia to be his brother as Ex.P2, a gold chain and wrist watch of make HMT which are exhibited as Ex.P3 and Ex.P4 respectively and the Ambassador car which is Ex.P5.
2. Mukhtiyar Singh He is the father of the witness and is also a witness of last (PW2) seen. He has deposed on the following aspects:
1. That on 01.09.06 at about 9.00 PM Virender, co brother of his son Joginder came to his house and told him that he was taking Joginder along with him for some work.
2. That his other son Devender was present at his shop at that time and Virender and Joginder left together in white Ambassador car which was brought by accused Virender.
3. That Ajit and Satpal also saw both of them leaving.
4. That thereafter he went to sleep and next morning he looked around for his son Joginder and also asked his younger son Devender to make a phone call on his St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 63 mobile phone but the phone was dead (switched off).
5. That on 02.09.2006 at about 11.30 AM Babli, daughter of his sister in law, called up Mehar Singh on his phone and spoke to him as well as his wife and asked him the whereabouts of Joginder.
6. That he told Babli that Joginder had left with his co brother and was not traceable on which Babli told him that a dead body had been discovered in Baraut which had a right hand index finger amputated from the top and the alphabets JSD were tattooed on the arm of the said body.
7. That Babli also told him that from the purse of the said body, her telephone number had been recovered and therefore a call was made to her by the police of Police Station Barot.
8. That he sent his neighbours and nephews namely Ajeet Singh, Vijay Singh and Jogender S/o Hukum Chand to Police Station Barot to identify the dead body and they identified the dead body which was sent to Bagpat for postmortem examination.
9. That the dead body was brought to the village and it was found that a gold chain from his neck and a wrist watch and mobile phone were missing.
10. That Ajeet Singh etc. who had brought the dead body told him that Police Station Barot had refused to register an FIR on the ground that the deceased had been killed in Delhi and dead body then brought to UP.
11. That on 02.09.2006 he went to the police station and made a complaint on the basis of which FIR Ex.PW2/A was registered.
12. That on 17.10.2006, he was called in the court at Room No. 9, Rohini Court complex to participate in the TIP of wrist watch and gold chain wherein he identified wrist watch and gold chain of his son vide proceedings Ex.PW1/A.
13. That he had handed over a receipt and bill of a telephone which his son possessed and also an envelop of SIM Card to the Investigating Officer on St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 64 2.11.2006 which were seized by the Investigating Officer vide seizure memo Ex.PW2/B.
14. That the said bill Ex.P5, receipt Ex.P6 and the SIM Card Envelope Ex.P7 were also signed by him.
15. That the bill for wrist watch and gold chain were not available with him as both these articles had been given to his son in his marriage by his in laws.
The witness has correctly identified the accused Virender in the Court as the person who had taken his son Joginder with him. He has also identified the case property i.e. the mobile phone of Tata Haier belonging to his son which is Ex.P1; mobile phone of make Nokia belonging to his son which is Ex.P2; the gold chain Ex.P3; wrist watch Ex.P4 as belonging to his son and the Ambassador car bearing registration No. DL2CH3983 which is Ex.P5.
3. Devender (PW4) He is a photographer by profession and has deposed on the following lines:
1. That he was running a photo studio under the name and style of R.K. Photo Studio, Hiran Kudna, near Ghevra Mor.
2. That on 03.09.06 he was called by one Suman on which he went to village Hiran Kundana, at about 6.00 AM.
3. That some police officials were also present there but he did not know their names and on the directions of police officials, he took two photographs of the dead body of Joginder from different angles.
He has proved the negatives of the said photographs which are Ex.PW4/1 & Ex.PW4/2 and the positive prints of the negatives which are Ex.PW4/3 and Ex.PW4/4.
4. Ajit Singh (PW5) He is a resident of the same area and is also a witness of the last seen. He has deposed on the following lines:
1. That on 01.09.2006 at about 9.00 PM he himself and Satpal were standing in the Gali when in the meantime, accused Virender @ Dillu (whom the witness has correctly identified in the Court), came in a White Ambassador Car and took Joginder along with him.St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 65
2. That he knew Virender as he (Virender) was related to Joginder as his cobrother and Joginder was a Resident of his (witness) village.
3. That in the next morning he came to know that Joginder had been murdered and his body had been located near Barot/Bagpat.
4. That on getting information about death of Joginder, he called up his mobile bearing number 9210455914 but the call could not mature.
5. That Joginder also used another mobile but he did not remember the complete number.
6. That he called up on the other number of Joginder but there was no response since the phones were switched off.
7. That thereafter he himself, Vijay and Joginder Son of Hukan Singh went to Bagpat at Mortuary and identified the dead body of Joginder.
8. That the deceased used to wear a wrist watch and a gold chain and also used to keep two mobile phones which articles were noticed to be missing from the body.
9. That at the time of identifying the dead body of Joginder, he signed the body identification memo Ex.PW5/A.
5. Vijay Singh (PW6) He is the cousin of deceased Joginder who had joined the investigations. He has deposed on the following aspects:
1. That on 01.09.2006, he came to know that Joginder S/o Shri Mukhtiar Singh had been missing from the village on which he went to Police Post Tikri Kalan to intimate about this fact vide mark PW6/F.
2. That on the next day a phone call was received from Police Station Barot regarding discovery of dead body which resembled Joginder pursuant to which he himself, Ajit Singh, Joginder S/o Shri Hukam Chand went to Barot after which they went to Community Health Center, Bagpat where they identified the dead body of Joginder vide memo Ex.PW5/A.
3. That there was an incised wound on the neck of the body.St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 66
4. That on 06.09.2006 he joined the investigation when all the three accused (whom the witness has correctly identified in the Court) who were in police custody, led the police party to village Tiyodi and accused Virender @ Dillu led towards sugarcane field near Electricity Pole and got recovered a Blade (ustara in broken condition and yellow colour) which Blade (ustra) was sealed and seized vide memo Ex.PW6/A.
5. That before sealing the Ustara a sketch was prepared which is Ex.PW6/B and police had also seized blood stained earth from the spot vide memo Ex.PW6/C.
6. That the place of occurrence was pointed out by all the three accused persons vide memo Ex.PW6/D.
7. That all the three accused persons thereafter led the police party to village Jonmana and pointed out a Nala and from the said nala (used for irrigation) from where they got recovered a blood stained piece of seat cover of the car which was was kept in a plastic pullanda and seized vide memo Ex.PW6/E. He has correctly identified the accused persons as well as the case property i.e. plastic container containing blood stained earth which was lifted from the spot which is Ex.P8; earth control which is Ex.P9; a piece of rear seat cover which was seized from the spot which is Ex.P10 and a Blade (Ustra) with broken yellow plastic handle which according to the witness was recovered at the instance of accused Virender which is Ex.P11.
6. J.S. Pawar (PW7) He is a Automobile Engineer by profession and has deposed on the following aspects:
1. That on 30.09.2006 on the written request Ex.PW7/A of the Investigating Officer, he mechanically inspected one Ambassador car white colour No. DL 2CH 3983 and also its seat matching inspection also at Police Station Nangloi at about 12.30 p.m.
2. That after conducting the mechanical inspection of the car, he found that all the mechanical function of car were O.K. & found front seat and rear seat not matching each other and the sitting portion of the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 67 front seat did not match with the remaining seats.
3. That the said portion was older than rest of the seats and was of a different make.
4. That Investigating Officer showed him one sitting portion of a front seat of Ambassador car, at the Malkhana of Police Station which portion he inspected with the remaining seats of the Ambassador car and the said portion of the seat matched with the remaining seats which were fitted in the Ambassador car.
He has proved having prepared his report which is Ex.PW7/B which was in his hand writing and has correctly identified the Ambassador car bearing no. DL2CH3983 which is Ex.P6 and the sitting portion of front seat which is Ex.P7.
7. Sat Pal (PW8) He is also a neighbour of the deceased and witness of last seen and has deposed as under:
1. That he knew the deceased Joginder who was the relative/ Sadu of accused Virender @ Dillu (whom the witness has correctly identified in the Court) as his covillager and was frequent visitor to Joginder.
2. At about 9.00p.m. he and Ajit Singh were present in the gali and talking to each other when accused Virender @ Dillu came in a white colour car make Ambassador and took away Joginder with him in the said car.
3. That on the next day he saw crowd outside the house of Joginder and when he went there, he came to know that the dead body of Joginder was discovered in village Barot.
4. That since he had seen the accused Virender @ Dillu and deceased together in the night at 9.00 PM and came to know in the morning that he had expired, he suspected Virender @ Dillu to be the murderer.
8. Manoj Kumar He is a resident of village Tyodi Barot, Uttar Pradesh who (PW9) has deposed that on the following lines:
1. That exact date he does not recollect but about three years back (from the date of his deposition before the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 68 Court) he went to take grass in the field of Sahansar Pal in village Tyodi, Barot at about 9:00/ 10:00 AM when he saw a dead body of a young person aged around 2425 years wearing jeans pant and Tshirt with blood stains on it and there was some injury mark on the neck of the deceased.
2. That Sahansar Pal the owner of the field informed the police after which police came and prepared a panchnama Ex.PW9/A wherein he put his signatures.
3. That one currency note of Rs.500/ and some coins, two photographs and two mobile phones were recovered from the dead body which were also seized.
4. That besides him Sahansar Pal, Onkar Dutt, Nand Kishore and Amit Chauhan also gathered at the spot.
9. Rajiv Shokeen He is the brother in law of the deceased Joginder who has (PW10) deposed on the following lines:
1. That telephone No. 9810662686 which was in his name and which he used to keep in his house and used by his wife.
2. That on 2.9.2006 one telephone call was received on this telephone number from Baghpat and his wife gave his telephone number 9873333233 to the caller and the caller from Baghpat called him on his telephone number.
3. That one police official was speaking on the telephone from Baghpat who told him that one dead body had been found in a field in Baghpat and on the arm of the dead body JSD was engraved and the upper portion of the index finger of the right hand of the dead body was found imputed and his telephone number was found from the dead body.
4. That he informed to them that this body might be of his brother in lawJoginder and thereafter he informed his father in law Mukhtiar Singh, on the phone of neighbourer, whose name he does not remember.
5. That he thereafter went to Baghpat alone and other members of his inlaws also reached there and he St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 69 identified dead body of his brother in law in the Health Centre, vide memo Ex.PW5/A.
10. Mir Singh (PW15) He is the the registered owner of Ambassador car bearing registration No. DL 2CH 3983 and has deposed on the following aspects:
1. That on 15.8.06 he had sold the said car to Rakesh S/o Sunder Lal, R/o Bharthal, for Rs.62,000/.
2. That he had handed over the sale letter to Mr. Rakesh after signing it but they had not got it transferred.
3. That on 1.11.06 he received a notice under Section 133 MV Act from the Investigating Officer to which he replied vide his reply Ex.PW15/A. He has correctly identified the car Ex.P5 from the photographs which photographs are collectively Ex.P12.
11. Meena (PW20) She is the wife of the deceased Joginder and has deposed as under:
1. That her sister Babli was married with accused Virender Singh (who she has identified in the Court) and on the same day she was married with Jogender Singh.
2. That after the marriage her husband and accused Virender used to go to their inlaws as usual and their relations was cordial.
3. That her husband used to wear gold chain and wrist watch which was given to him in her marriage and the receipt of the ownership has been lodged.
4. That both her husband and Virender used to take liquor.
5. That she had gone to her parental house at Gurgaon to attend the last rites of her cousin brother (mama's son) 15 days prior to the incident and her sister Babli had gone to their parents due to quarrel between her sister Babli and her husband.
12. Babli (PW21) She is the wife of the accused Virender who has deposed on the following aspects:
1. That she was married with accused Virender in the year 2000 and her sister was married with Jogender on the same day.St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 70
2. That initially they both sisters were resided happily and their husbands used to come at their parental house frequently.
3. That on the day of Raksha Bandhan fallen in the year 2006 she came to her parental house when and her husband was insisting her to come back on the next day but she was was suffering from fever.
4. That the day after Raksha Bandhan her husband telephoned her and he came to her parental house to take her after which she went with him to her matrimonial house but as soon as she got down from the car at their residence her husband started beating her without any reason due to which reason on the next date she again went back to her parental house and ever since she has been residing there.
5. That her husband used to taunt her and make false allegations against her of having illicit relations with Joginder (deceased).
13. Sh. Sahansar Pal He is the owner of the field in which the dead body of the (PW26) deceased was found. He has deposed on the following lines:
1. That he is a farmer by profession and about 3½ years back (from the date of his deposition), it was around 8:30AM when he had gone to his field and found one dead body of unknown person near the electric pole on the one side of the road.
2. That the dead body was found wearing one TShirt and one jeans pant and the face of the dead body was towards the ground.
3. That there was cut wounds on the neck of the dead body and he informed the Chowkidar and thereafter informed the police.
4. That one purse containing a note of Rs.500/, some change and some documents taken out from the pocket of the deceased which was seized by the police vide seizure memo Ex.PW16/A and at that time Amit, Nand Kishore and Manoj were also present there.St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 71
14. Amit Chauhan He is the witness who had seen the dead body of deceased (PW27) in the field of Sahansar Pal. He has deposed on the following aspects:
1. That he is a farmer by profession and about four years back (from the date of his deposition in the Court), it was at 12:00 Noon when he had gone to his field and found one dead body of unknown person near the electric pole on the one side of the road.
2. That the dead body was found wearing one TShirt and one jeans pant and the face of the dead body was towards the ground.
3. That there was cut wound on the neck of the dead body and someone informed the police.
4. That one purse containing one note of Rs.500/, some change and some documents was taken out from the pocket of the deceased in his presence and at that time Nand Kishore and Manoj were also present there with him.
15. Rakesh (PW28) He is the brother of accused Virender who has deposed on the following aspects:
1. That he had purchased Ambassador car bearing no.
DL 2C H 3983 from his "Taoo" Meer Singh for a sum of Rs.62,000/ in the year 2006.
2. That when this incident took place the aforesaid Ambassador car could not be transferred in his name and he handed over the copy of the RC of the car to the Investigating Officer.
3. That the said car was stationed in the workshop of Raju Mistri and police took the same from the workshop.
4. That he obtained the said car on superdari and no other person was driving the aforesaid car.
The witness has turned hostile on the aspect that the said car was in the possession of his brother Virender @ Dillu on 1.9.2006.
MEDICAL EVIDENCE
16. Dr. Pradeep He is the witness who had conducted the postmortem Kapoor (PW14) examination on the dead body of deceased Joginder vide St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 72 report Ex.PW14/A. He has proved that on examination of the dead body, following antimortem injuries were found on the dead body:
1. Incised wound on front of the neck of size 16 cms x 6 cms x bone deep margins of the wound was clean cut.
On dissection, all the intervening tissues, muscles, arteries, trachea, oesophagos cut at level of this wound. The level of incised wound was 3.5 cm below right ear lobe; 3.0 cm below chin in front and 4.0 cm below left ear lobe.
2. Abrasion of size 1.5 cms length x 0.5 cms over left first knuckle.
3. Abrasion of size 1.2 cms length x 0.5 cms over left second knuckle.
He has also proved that in his opinion the cause of death was due to shock and hemorrhage due to above ante mortem injuries, time since death was about 3/4th day old i.e. 18 hours approximately.
This witness has further proved having given the subsequent opinion on the weapon of offence i.e. the Ustra which opinion is Ex.PW14/B according to which the injuries mentioned in the postmortem report can be caused by the weapon produced before him. He has correctly the said ustra in the Court which is Ex.P11. FORENSIC EVIDENCE:
17. A.K. Srivastava This witness has proved having examined the exhibits of (PW19) Assistant this case Biologically and Serologically vide reports Director (Biology), Ex.PW19/A and Ex.PW19/B respectively, according to FSL Rohini which blood was detected on blood stained earth (exhibit
1); front seat cover of the car (exhibit 3); blood stained piece of rear seat cover (exhibit 4); cut/ torn sandow banian (exhibit 10a); cut/ torn underwear (exhibit 10b), cut/ torn Tshirt (exhibit 10c); cut/ torn jeans pants (exhibit 10d) and a pair of plastic sleepers (exhibit 10e). Further, no blood stains could be detected on the clothes of the accused persons and the torn piece of front seat cover.St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 73
POLICE/ OFFICIAL WITNESSES (Proving investigations)
18. ASI Rajbir (PW3) He is a formal witness being the Duty Officer who has proved having registered the FIR of the present case copy of which is Ex.PW2/A on the basis of the statement of Mukhtiar Singh. He has also proved having made Kayami DD entry No. 34 regarding the registration of the FIR which is Ex.PW3/A.
19. HC Tarif Singh He is a formal witness being the MHCM who has proved (PW11) the various entries in the Malkhana Register which entries are Ex.PW11/A to Ex.PW11/G.
20. Ct. Ramvir He is a formal witness who has proved having taken the (PW12) sealed pullandas on 12.10.2006 and deposited the same in FSL rohini and thereafter deposited the receipt with the MHCM.
21. SI Mahesh Kumar He is a formal witness being the Draftsman who has proved (PW13) that on 27.9.2006 on the request of Inspector R.S. Malik he went to the field of Sahansar Pal S/o Raghubir Singh Village Tyodi where at the instance of Sahansar Pal he took rough notes and measurement and on 20.10.2006 he prepared the scaled site plan which is Ex.PW13/A which he handed over to the Investigating Officer.
22. Retd. SI Ganesh This witness was posted as Sub Inspector in Police Station Chand Mourya Baraut, Distt. Bagpat, UP on 2.9.06 and had gone to the (PW16) fields of Sahnsarpal where the dead body was found lying. from Uttar He has deposed on the following aspects:
Pradesh Police 1. That Sahansarpal gave information at Police Station Baraut that one dead body was lying in his field on which information DD No. 22 was registered at about 11.30 AM.
2. That after receiving this information, he along with Ct. Mahak Singh and Ct. Sukhpal Singh reached the spot i.e. the jungles of village Teody where one dead body was lying in the sugarcane field of Sehansarpal.
3. That five public persons were made witness of panchnama and he conducted the panchnama of the dead body.St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 74
4. That the dead body was in wet condition as there was rains in the previous night and there was wound on the neck of the dead body.
5. That he took the search of the dead body during which one purse was found from the pocket of his pant which contained one currency note of Rs.500/; one currency note of Rs.2/, four currency notes of Re.1/; some coins and photographs and some phone numbers on the cards inside the purse.
6. That he seized all the articles vide memo Ex.PW16/A and the panchnama is collectively Ex.PW16/B.
7. That the telephone numbers which were found from the pocket of the deceased were contacted and one Ravinder responded one one call on which he informed him that JS was written on the dead body of the deceased and Ravinder told him that the dead body was of Joginder Singh S/o Mukhtiar Singh who was their relative and he would inform his family members.
8. That he made an endorsement on the panchnama vide Ex.PW16/C and after sealing the dead body the same was sent to mortuary in the custody of HC Mehak Singh and Ct. Sukhpal Singh.
9. That he prepared the relevant papers i.e. Form 13 which is Ex.PW16/D; Form No. 379 regarding photo lash which is Ex.PW16/E; request for postmortem which is Ex.PW16/F and information to RI which is Ex.PW16/G. He has correctly identified the case property i.e. one purse of brown colour containing one currency note of Rs.500/, one currency note of Rs.2/, four currency notes of Re.1, some coins and photograph of the deceased, some visiting cards containing phone numbers as the same articles which were recovered from the possession of dead body, which articles are collectively Ex.P13.
23. SI Ganesh Lal He was posted as MHCM at Police Station Baraut, UP and (PW17) has proved that he handed over one envelope containing postmortem report No.236/06 of deceased Jogender S/o St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 75 Mukhtiar Singh, original Panchayatnama, one seizure memo of purse containing Rs.560/, some coins and one pullanda containing clothes of deceased, to the Investigating Officer of this case of Delhi Police, vide memo Ex.PW17/A.
24. Sh. Amit Bansal This witness has proved having conducted the Test the then Ld. Identification Proceedings of the case property vide ACMM (PW18) Ex.PW1/A. He has also proved that the Investigating Officer was provided a copy of the said proceedings vide his endorsement on the application Ex.PW18/A & Ex.PW18/B and copy was allowed vide his order Ex.PW18/C.
25. Ct. Ravneek He is a formal witness who has proved having taken the (PW22) copy of FIR No. 902/06 from Duty Officer to the residence of Deputy Commissioner of Police, Joint Commissioner of Police at Hauz Khas and Ld. MM Sh. D.K. Janghala on his motorcycle.
26. Retd. HC Mehak This witness has proved that he along with SI G.C. Maurya Singh (PW23) had gone to the spot where the dead body was found on from UP Police 02.09.2006 on the receipt of DD No.22. He has proved that the dead body was taken to Baghpat in a hospital which dead body was duly identified by the relative of the deceased, after the postmortem vide Ex.PW5/A.
27. HC Subhash This witness has joined the investigations along with (PW24) Inspector R.S. Malik and proved the following documents:
Ex.PW24/A Disclosure statement of accused Virender Ex.PW24/B Arrest memo of accused Virender Ex.PW24/C Personal search memo of accused Virender Ex.PW24/D Seizure memo of blood stained seat cover Ex.PW24/E Seizure memo of Ambassador Car Ex.PW24/F Seizure memo of clothes of accused Virender along with wrist watch and golden chain St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 76 Ex.PW24/G Disclosure statement of accused Rohtash Ex.PW24/H Disclosure statement of accused Narender Ex.PW24/I Seizure memo of Nokia mobile and clothes of accused Rohtash Ex.PW24/J Seizure memo of Tata Haier mobile and clothes of accused Narender Ex.PW24/K Arrest memo of accused Rohtash Ex.PW24/L Arrest memo of accused Narender Ex.PW24/M Personal search memo of accused Rohtash Ex.PW24/N Personal search memo of accused Narender
28. Inspector R.S. He is the Investigating Officer of the present case and has Malik (PW25) proved the various proceedings conducted by him. Apart from the documents proved by the various witness, he has proved the following documents:
Ex.PW25/A Site plan of the hardware shop
Ex.PW25/B Site plan of school type house
Ex.PW25/C Site plan of the place where dead body was
recovered
Ex.PW25/D Application seeking opinion on the weapon
of offence
Ex.PW25/E TIP of the case property
Ex.PW25/F Notice under Section 133 M.V. Act to Meer
Singh
Ex.PW25/G Another notice under Section 133 M.V. Act
to Meer Singh
Ex.PW25/H Reply of Rakesh S/o Sunder
78. Coming now to the microscopic evaluation of the evidence against the accused persons.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 77 Identity of the accused:
79. In so far as the identity of the accused Virender @ Dhillu is concerned there is no dispute. He is related to the deceased being the co brother since the wife of the accused Virender and the wife of the deceased Joginder are real sisters. In so far as the accused Rohtash and Narender are concerned, according to the prosecution they were the tenants of the accused Virender and assisted the accused Virender @ Dhillu in kidnapping and committing the murder of deceased Joginder but not even a single public witness has either named them or identified them in the Court. Therefore, under these circumstances, I hereby hold that the identity of the accused Rohtash and Narender does not stand established. Relationship between the accused Virender @ Dhillu and deceased Joginder:
80. It is not disputed by the accused Virender that he and the deceased Joginder were related to each other being cobrothers (Sandhu). The wife of the accused Virender namely Babli (PW21) and the wife of deceased Joginder namely Meena (PW20) who are real sisters have been examined in the Court and they both have proved the said relationship. Further, Devender (PW1) the brother of the deceased and Mukhtiar Singh (PW2) have also admitted the said relationship which is not disputed by the accused.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 78 Motive:
81. The case of the prosecution is that the accused Virender had suspected the illicit relationship of his cobrother Joginder (deceased) with his wife and being aggrieved by the same he committed the murder of Joginder.
82. It is settled law that the motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
83. Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 79 conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
84. Applying the settled principles of law to the facts of the present, it is evident that Meena (PW20) who is the wife of the deceased and real sister of the wife of accused Virender @ Dillu, has in her testimony deposed that after her marriage her husband Joginder and his cobrother Virender had casual and cordial relations and often took liquor together and admits that her sister Babli (PW21) who is the wife of the accused Virender @ Dillu had a dispute with her husband (the accused Virender) and was residing at her parental house. In her testimony she has admitted that accused Virender used to taunt Babli with regard to her illicit relationship with her husband Joginder which allegations according to witness Meena (PW20) were false. Her testimony finds due corroboration from the testimony of Smt. Babli (PW21) the wife of accused Virender. Babli (PW21) has corroborated the testimony of Meena (PW20) to the extent that at the time of the incident in the year 2006 she had come to her parental house for attending the festival of Raksha Bandhan when accused Virender insisted that she should come back with her but since she was suffering from fever she did not go back to her matrimonial home but on the next day the accused Virender took her back but as soon as she got down from the car at their residence, he started beating her without any reason on account of which she again returned to her parental house. She has deposed that her St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 80 husband Virender used to taunt her and made false allegations against her of having illicit relations with Joginder. In her crossexamination a specific suggestion had been put by the Ld. Defence Counsel to Babli that the accused Virender used to make these allegations on her character only after consuming alcohol which she has categorically denied and has explained that he used to make these allegations at any time.
85. Babli (PW21) is a housewife belonging to a rural background and financially dependent upon her husband Virender (the accused). It is evident that there is no specific dispute between them except that Virender used to suspect her relations with her brotherinlaw/ Jija Joginder (deceased). Under the given circumstances, it would be the attempt of any woman to save her own marriage, family and reputation and not to expose herself to these kind of scandalous allegations in a court of law. I find no reason to disbelieve Babli (PW21) since her testimony finds due corroboration from the testimony of Meena (PW20) the wife of the deceased Joginder who has similarly deposed that Virender often made false allegations regarding illicit relationship between Babli and Joginder. It is further established that at the time of the incident Babli had gone to her parental house and had refused to come back with Virender on account of which he was highly agitated. It has also come on record that when the accused Virender took his wife Babli took her back they had quarreled on the way and as soon as Babli got down from the car he again made allegations upon her with regard to her illicit relations with Joginder, on St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 81 which both returned to her parental house. This established that the accused Virender was so much convinced of his wife's relationship with the deceased Joginder so that he even physically abused and beat up his wife Babli. This being the background, I hereby hold that the motive as alleged by the prosecution stands proved and established.
Last Seen Evidence:
86. The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
87. It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].
88. Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 82 that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
89. A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: " ....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 83 burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
90. Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends , which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 84
91. Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Virender is trustworthy or not. If yes, the effect thereto.
92. To establish that the deceased Joginder was last seen alive in the company of accused Virender, the prosecution has examined Devender (PW1) the brother of the deceased, Mukhtiar Singh (PW2) father of the deceased, Ajit Singh (PW5) and Satpal (PW8). Devender (PW1) the brother of the deceased has stated that on 1.9.2006 at about 8:30/ 9:00 PM the accused Virender the cobrother. Sandhu of Joginder came to his shop in white colour Ambassador Car (Ex.P5) and asked his brother Joginder to accompany him to Haridwar on which his brother Joginder went to Haridwar along with Virender. This was the last when he had seen his brother alive when he went with the accused Virender to Haridwar. He has proved that when Joginder left the house he was having two mobiles of make Nokia and Tata Haier and was wearing one wrist watch and golden chain.
93. Similarly, Mukhtiar Singh (PW2) the father of the deceased has corroborated the testimony of Devender on material particulars. He has proved that he was in the house when the accused Virender came there and told him that he was taking Joginder along with him for some work and at that time Devender was present in his shop. He has stated that he saw St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 85 Virender and Joginder leaving together in white Ambassador car which was brought by the accused Virender and on the next day morning he tried to look around for his son Joginder and asked his younger son Devender to make a phone call on the mobile of Joginder but the phone was found switched off. Mukhtiar Singh (PW2) has proved having last seen Jogender alive at about 9:00 PM on 1.9.2006 at village Hiran Kudna, near Mundka, Delhi when he was going away with the accused Virender in his Ambassador car.
94. The Ld. Defence Counsel has vehemently argued that no reliance can be placed upon the testimony of witness Devender (PW1) and Mukhtiyar Singh (PW2) who are interested witnesses being the brother and father of the deceased. In this regard, I may observe that the deceased Joginder was staying in a joint family with his parents and brother and therefore, they are the natural witnesses who would have seen the deceased going with the accused Virender.
95. Further, the prosecution has also examined two independent witnesses namely Ajit Singh (PW5) and Satpal (PW8) who were the residents of the same village and were standing in the gali when they both saw the accused Virender @ Dillu who was known to them previously being the cobrother of Joginder who was a resident of the same village, coming in white Ambassador Car at 9:00 PM and taking Joginder along with him. According to them, on the next morning they came to know that Joginder had been murdered and his body had been located somewhere near St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 86 Barot/ Bagpat. Ajit Singh (PW5) has specifically proved that he called up Joginder on his mobile numbers which call could not mature pursuant to which he along with Vijay (PW6) and Joginder S/o Hukam Singh went to Bagpat mortuary and identified the dead body of Joginder. Satpal (PW8) has similarly corroborated the testimony of Ajit Singh (PW5) and has similarly deposed that he and Ajit were standing in the gali at about 9:00 PM on 1.9.2006 when accused Virender @ Dillu came in a white colour Ambassador car and took Joginder with him and on the next day he came to know that the dead body of Joginder was discovered in village Barot and since he had seen the accused Virender @ Dillu and deceased Joginder together in the night at 9:00 PM, he suspected Virender @ Dillu to be the murderer.
96. There is no reason why the testimony of Ajit Singh and Satpal residents of the same village, should not be relied upon. They are the most natural witnesses whose presence at the spot cannot be doubted being residents of the area and having no history of animosity so as to falsely implicate the accused. Ld. Defence Counsel has pointed out that the witness Vijay Singh (PW6) is the cousin of the deceased and had allegedly gone to Police Post Tikri Kalan on 1.9.2006 to lodge the missing report which was not lodged since an information had in fact been given by him vide mark PW6/F but in the same he did not name any person as suspect. In this regard, I may at the very outset observe that Vijay Singh (PW6) is not a witness of last seen and it is natural that he would not have suspected St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 87 anybody. Secondly the report mark PW6/F has not been proved by calling for the original. However, assuming that a report mark PW6/F was in fact made by Vijay Singh 2.9.2006, he could not have mentioned the name of Virender @ Dillu not being aware that in the previous night deceased had gone with the accused Virender because he had not seen Jogender going with Virender. The benefit of the same cannot be given to the accused more so because the other independent witnesses from the same village who have no history of any dispute with the accused so as to falsely implicate him, are found reliable.
97. From the testimony of Devender (PW1), Mukhtiyar Singh (PW2), Ajit Singh (PW5) and Satpal (PW8) it is evident that they had last seen the deceased Joginder alive with the accused Virender @ Dillu who had taken him out in the Ambassador Car on the pretext of going to Haridwar. The accused Virender being closely related to the deceased Joginder as his co brother, it is only natural that nobody in his family objected to the same or had any doubts on his intents. It is further evident that in fact Ajit Singh (PW5) and Satpal (PW8) had last seen the deceased Joginder in the company of the accused Virender @ Dillu on 1.9.2006 at about 9:00 PM when they were standing in the gali being residents of the same area and there is no reason to discard their testimony to the effect that they had seen Joginder and Virender @ Dillu leaving in a ambassador Car. In his statement under Section 313 Code of Criminal Procedure the accused Virender @ Dillu has simply denied that he had even gone to the house of St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 88 Joginder and had taken Joginder with him and had given no explanation.
98. In the instant case there exists a proximity between the last seen and the time of death of the deceased in as much as the deceased died on the intervening night of 1.9.2006/ 2.9.2006 (at around 11 to 12:oo PM as per the postmortem report) when he was last seen in the company of accused Virender @ Dillu at 9:00 PM. The place of murder i.e. the fields of village Tyodi/ Baraut is on the way of Haridwar where the murder had been committed being at a distance of two to three hours from Delhi. No explanation has been given by the accused Virender in his statement under Section 313 Code of Criminal Procedure with regard to the circumstances in which he was seen in the company of deceased Jogender and when he parted with the company of Jogender. In view of the above, I hereby hold that the fact that the deceased Joginder was last seen alive in the company of the accused Virender @ Dillu is highly determinative of the guilt of the accused Virender @ Dillu.
Recovery of the dead body of deceased Joginder from the fields of village Tyodi/Baraut:
99. Sahansar Pal (PW26) has deposed that he had gone to his field and found a dead body of unknown person near the electric pole on the one side of the road which body was found wearing one Tshirt and jeans pant and having a cut wound on the neck of the dead body. According to him, he informed the Chowkidar and thereafter informed the police. He has further proved that one purse containing one note of Rs.500/, some change and St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 89 some documents was taken out from the pocket of the deceased which were seized vide memo Ex.PW16/A which proceedings were also conducted in the presence of Amit (PW27), Nand Kishore and Manoj (PW9).
100. The testimony of Sahansar Pal find due corroboration from the testimony of Amit Chauhan (PW27) another villager who has similarly deposed that at about 12:00 noon he had gone to his field when he found one dead body of an unknown person near the electric pole on the one side of the road which dead body was found wearing Tshirt and jeans pant and someone informed the police. He has also proved that one purse containing one note of Rs.500/, some change and some documents were taken out from the pocked of the deceased. In his crossexamination Sahansar Pal (PW26) has explained that in the morning he was on the way to his fields, one Surender from his village told him that a dead body was lying in his field and when he reached at his field there were two persons already standing there and thereafter all the three came back to the village for lodging a complaint with the police and came back to the fields in the official vehicle. According to Sahansar Pal, the Chowkidar took the search of the dead body and a purse was taken out from the back pocket of the pant which the dead body was wearing which was taken into possession by the police. Similarly, Amit Chauhan (PW27) has also been crossexamined at length wherein he has denied that any razor or ustra was lying near the dead body and has stated that he is unable to tell if there could be ustra lying away from the body because he had also saw the place around the body and St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 90 not anywhere else. He has also stated that no mobile phone was recovered from the dead body. According to Amit Chauhan when he reached the spot there were already 1012 persons along with three to four police officials and by that time the police was in the process of sealing the dead body and taking the same away. Manoj Kumar (PW9) has also similarly corroborated the testimony of Sahansar Pal (PW26) and Amit Chauhan (PW27) to the extent that when he had gone to take grass in the field of Sahansar Pal at about 9/10 AM when he saw a dead body of a young person aged about 2425 years wearing a Tshirt and jeans pant on which Sahansar Pal had informed the police.
101. Retd. HC Mehak Singh (PW23) has proved the recovery of dead body on 2.9.2006. According to him, on receipt of DD No. 22 he along with SI G.C. Maurya and two other constables reached the spot where they found the dead body of an unknown persons aged about 25 years. He has deposed that the dead body was found lying in the field of Sahansar Pal and was wearing Tshirt and pant and on formal search of the body one purse containing Rs.500/ and a slip containing phone numbers were recovered. He has proved that the neck of the dead body was found cut and later on after the postmortem it was identified by the relatives of deceased. SI G.C. Maurya (PW16) has proved that on receipt of DD No. 22 he along with Ct. Mekah Singh and Ct. Sukhpal Singh reached the spot i.e. jungles of the village Teody where a dead body was found in the field of Sahansar Pal. He has proved having conducted the panchnama of the deceased and during St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 91 search of the dead body one purse containing one currency note of Rs. 500/, one currency note of Rs.2/, four currency note of Re.1/ some coins and photographs, were recovered which he seized vide memo Ex.PW16/A. He has thereafter proved that the telephone numbers which he found in the pocket of the deceased were contacted and it was on one of the number that one Ravinder responded on which he informed that that JS was written on the dead body on which Ravinder informed him that the dead body was of Joginder s/o Mukhtiyar Singh who was their relative and that he was his family members. In this regard, I may observe that the testimony of Rajeev Shokeen (PW10) is relevant. He is the husband of cousin sister of the deceased. He has proved that he was having a telephone bearing no. 9810662686 which he used to keep at home and his wife was using the same. According to him, on 2.9.2006 one telephone call was received from Baghpat on which his wife gave his (Rajeev Shokeen's) telephone number 9873333233 to the caller and thereafter he received a call on his telephone number when one police official from Bagpat informed him that one dead body was found in the field of Bagpat and on the arm JS was engraved with the upper portion of the index finger of the right hand imputed. On this he inform the said police officials that the dead body may be of his brother in law Joginder and thereafter he informed to Mukhtiyar Singh on the phone of a neighbour and thereafter went to Bagpat alone where the other members of his inlaws also reached later and identified the dead body of Joginder in the Health Center, Bagpat vide memo Ex.PW5/A. Here, I may St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 92 mention that SI G.C. Maurya (PW16) in his testimony has deposed that he had informed one Ravinder about the discovery of the dead body whereas in fact he informed Rajeev Shokeen and this appears to be a mistake. Even otherwise this aspect as to whether the information was given to Rajeev Shokeen was not disputed by the defence and the crossexamination of this witness is silent on this aspect. In view of the above, I hereby hold that the information has been in fact given to Rajeev Shokeen (PW10) and SI G.C. Maurya appears to have erroneously mentioned the name of Ravinder and benefit of loss of memory can be given to the witness.
102. Further, Mukhtiyar Singh (PW2) has proved that on 2.9.2006 at about 11:30 AM Babli the daughter of his sister in law called up his neighbour Mehar Singh on his phone and asked him (Mukhtiyar Singh) about the whereabouts of Joginder on which he informed her that Joginder had gone along with Virender and was not traceable. On this Babli informed him that a dead body was located in Bagpat which had a right hand index finger amputated from the top and JSD were tattooed on the arm of the said body and from the purse her telephone number had been got recovered on which a call had been made by the police at Police Station Baraut. Vijay Singh (PW6) the nephew of Mukhtiyar Singh has corroborated the testimony of Mukhtiyar Singh (PW2) and has stated that his chacha Mukhtiyar Singh had received a call from his cousin sister Babli that she had received information regarding discovery of a dead body which resembled Joginder on which information he along with Ajit Singh (PW5) St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 93 and Joginder S/o Hukam Singh went to Bagpat Community Center where they identified the dead body of Joginder vide memo Ex.PW5/A.
103. When this evidence has been put to the accused he has neither admitted nor denied the same but simply stated that it is incorrect. Therefore, in view of the aforesaid I hereby hold that the sequence of events with regard to the discovery of the dead body and the information being communicated to his family and its identification thereafter, stands proved and established.
Ownership of Ambassador Car :
104. The case of the prosecution is that on the basis of information given by the family members of the deceased to the Investigating Officer, the Ambassador Car bearing no. DL2CH3983 was traced which was in the name of Mir Singh a resident of Village Bharthal, Pappan Kalan, Delhi. The said Mir Singh has appeared in the Court ans has been examined as PW15 wherein he has deposed that he had sold the said car to one Rakesh S/o Sunder Lal a resident of Bharthal for Rs.62,000/ and had handed over the sale letter to Rakesh after signing it but had not got it transferred. According to him, on 1.11.2006 he received a notice under Section 133 MV Act from the Investigating Officer and replied the same vide reply Ex.PW15/A. Rakesh (PW28) is the real brother of accused Virender @ Dillu and has proved the sale of the said car to him and has also admitted that at the time of incident the said car could not be transferred in his name. St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 94 According to Rakesh (PW28), at the time of the incident the said car was stationed in the workshop of Raju Mistri and nobody was driving the car at that time. It is writ large that Rakesh (PW28) being the real brother of the accused Virender @ Dillu is trying to save his brother from penal consequences.
105. I may further observe that had this been so that the vehicle was with Raju Mistri the witness Rakesh (PW28) could have produced some document in the form of payment receipt to prove this aspect. No such document has been placed on record to show that the vehicle had been stationed in the workshop of Raju Mistri during the time of incident and was not in use by any person nor his Raju Mistri has been examined.
106. It is therefore evident that Rakesh (PW28) has in order to save his real brother Virender @ Dillu created this story of the vehicle being at the workshop of Raju Mistri. In view of the above I hereby hold that it stands established that at the time of the incident accused Virender @ Dillu a resident of the same area had an access to the car.
Recovery of the gold chain, wrist watch, mobile phones of the deceased, seat cover of the Ambassador Car and the weapon of offence i.e. Ustra:
107. The case of the prosecution is that soon after the registration of the FIR on 2.9.2006 when the Investigating Officer Inspector R.S. Malik came to know that Joginder had been taken by accused Virender @ Dillu in his Ambassador car bearing no. DL2CH3983 on 1.9.2006 at about 9:00 St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 95 PM for going to Haridwar after which he did not return, he went to village Bharthal in search of the accused but he was not traceable and thereafter on 5.9.2006 he along with HC Amarpal, HC Subhash, Ct. Ravender went in search of the accused Virender who met them while he (accused) was coming out of his house. After Virender @ Dillu was interrogated he admitted to the Investigating Officer that Joginder had been murdered by him and his other associated on which his arrest was made and on his personal search a mobile phone and two keys were found which were taken into possession. Thereafter Virender led them to his hardware shop vide pointing out memo Ex.PW24/D and took them on the roof of the shop and got recovered two seats of the car which were taken into possession vide memo Ex.PW24/E and thereafter led them to down stairs from where he got recovered washed Tshirt and pant which were worn by him at the time of committing the crime and also took out one golden chain and a wrist watch (make HMT) with chain belonging to the deceased Joginder which were taken into possession vide memo Ex.PW24/F. Thereafter accused Virender took them to his school type house and pointed out towards two persons namely Rohtash @ Prakashe and Narender Singh stating that they had associated him in the commission of crime on which both the said accused were also interrogated. Virender thereafter pointed out towards a car parked in the said school type house which was inspected during which some blood stains were found on the back seat after which the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 96 said car was taken into possession vide memo Ex.PW24/E. After that the accused Rohtash got recovered one mobile phone make Noikia without SIM which he disclosed as belonging to the deceased which mobile was seized vide memo Ex.PW24/I. Further, the accused Narender led them to his room and got recovered a black shirt which he was wearing at the time of committing the offence and also got recovered one mobile phone make Tata/ Haier belonging to the deceased which were also seized vide memo Ex.PW24/J. It is further the case of the prosecution that thereafter on 6.9.2006 the accused in the presence of police witnesses and one Vijay S/o Kishan Chand who joined the investigations, took them to the sugarcane field at village Tyodi and pointed out the place vide memo Ex.PW6/O where they had thrown the dead body of Joginder Singh after killing him during the intervening night of 1/2.9.2006. On inspection towards the left side of the road some blood stained soil was found in the fields of sugarcane and thereafter the accused led them to the place where he had thrown the weapon of offence and himself got recovered the said ustra the handle of which was not with it. The said ustra was having blood stains, sketch of which was prepared vide Ex.PW6/B. The total length of the Ustra was 14.5 cm, length of the blade was 7.8 cms and the width of the blade was 2.3 cm. A small piece of handle of ustra was also found there which was also taken into possession along with the Ustra vide memo Ex.PW6/A. Thereafter all the three accused took them to village Jaunmana St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 97 where they took a right turn from the road and led them to the spot where they had thrown the blood stained piece of seat cover of the car after committing the crime. The accused Virender thereafter got recovered the seat cover which was still in a wet condition and was blood stains which was seized vide memo Ex.PW6/E. The said recovery of the weapon of offence Ex.P11 by Virender, the articles of the deceased i.e. Tata Haier phone (Ex.P1); Nokia Phone (Ex.P2); gold chain (Ex.P3), wrist watch (Ex.P4); Ambassador car (Ex.P5); rear seat cover of the car (Ex.P10); another seat cover (Ex.P12) and torn piece of front seat cover (Ex.P16) by the accused Virender have been duly proved by HC Subhash (PW24) whose testimony finds due corroboration from the testimony of Inspector R.S. Malik (PW25) and Vijay Singh (PW6) the cousin of the deceased who has joined the investigations.
108. Judicial Test Identification Parade of the recovered articles were got conducted vide proceedings Ex.PW1/A wherein both the brother of the deceased namely Devender (PW1) and his father Mukhtiyar Singh (PW2) have identified the said articles i.e. gold chain Ex.P3 and the wrist watch Ex.P4 which TIP proceedings have been duly proved by Sh. Amit Bansal (PW18 the then MM).
109. Further, the fact that the deceased was wearing a gold chain and wrist watch of HMT has also been proved by his wife namely Meena (PW20) who has specifically deposed that the deceased Joginder used to St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 98 wear a gold chain and wrist watch which was given to him in her marriage. Though Meena has deposed that she was at her parental house yet there is no reason to disbelieve her since her testimony finds due corroboration from the testimony of Devender (PW1) and Mukhtiyar Singh (PW2).
110. Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, 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. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
111. Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
112. It further provides five illustrations as to what would constitute a fact which are as under:
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 99
(a) That there are certain objects arranged in a certain order in a certain place, is a fact
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention,
acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
113. A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
114. The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 100 effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 101 how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
115. After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 102 statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 103 appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
116. Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 104 knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
117. In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned.
However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 105 the portion of the alleged statement of the accused would be admissible in evidence......"
118. Section 8 of the Evidence Act makes conduct of a person a relevant fact for the proof of any fact in issue. Evidence relating to the conduct of an accused person, which is deposed to by a police officer is admissible as conduct under Section 8 of the Evidence Act. (Prakash Chand Vs. State reported in AIR 1979 SC 400). Therefore, the conduct of the accused Virender @ Dillu leading the police to place of murder where the deceased was in all probability murdered is admissible under Section 8 of Evidence Act.
119. What turns on the fact that accused Virender @ Dillu had pointed out the place of murder of the deceased which place was already in the knowledge of the police as the body was recovered at the said place. Thereafter Virender @ Dillu further led them to the place where he had thrown the weapon of offence i.e. Ustra which he got recovered which place was not in the knowledge of the police previously. The accused Virender thereafter led the police team to village Jaunmana from where he got recovered the blood stained car seat cover which he had thrown in the fields in the village which place again was not within the knowledge of the police and no explanation has been offered by the accused Virender @ Dillu as to how he came to know the place of recovery of Ustra and car seat cover. The fact that he pointed out the said places and got recovered the weapon of St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 106 offence and car seat covers and also got recovered the gold chain and wrist watch, is a strong pointer towards the guilt of accused Virender @ Dillu. Medical Evidence:
120. Dr. Pradeep Kapoor (PW14) has proved having conducted the postmortem on the dead body of the deceased vide postmortem report Ex.PW14/A. According to the witness, on examination he had found following injuries on the dead body:
1. Incised wound on front of the neck of size 16 cms x 6 cms x bone deep margins of the wound was clean cut. On dissection, all the intervening tissues, muscles, arteries, trachea, oesophagos cut at level of this wound. The level of incised wound was 3.5 cm below right ear lobe; 3.0 cm below chin in front and 4.0 cm below left ear lobe.
2. Abrasion of size 1.5 cms length x 0.5 cms over left first knuckle.
3. Abrasion of size 1.2 cms length x 0.5 cms over left second knuckle.
121. He has proved that in his opinion cause of death was due to shock and hemorrhage on account of the aforesaid injuries and time of death was about 3/4th day old i.e. 18 hours approximately. The postmortem report shows that the postmortem examination was conducted on 2.9.2006 at 5:00 PM thereby showing that death of the deceased would St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 107 have been caused between 11/12 midnight of 1/2.9.2006. hence, I hereby hold that this corroborates the last seen evidence and if Joginder had left village Hiran Kudna at about 9:00 PM he would have reached Baraut/ Bagpat within two to three hours in a private vehicle where his dead body was thrown after committing murder.
122. PW14 Dr. Pradeep Kapoor has proved his opinion regarding the weapon of offence which opinion is Ex.PW14/B according to which the injuries mentioned in the postmortem report can be caused by the weapon (i.e. Ustra) with broken plastic handle produced before him. He has identified the said ustra in the Court which is Ex.P11. It therefore stands established that the injury no.1 i.e. incised wound on front of the neck of size 16 cms x 6 cms x bone deep margins with all the intervening tissues, muscles, arteries, trachea, oesophagos cut at level 3.5 cm below right ear lobe; 3.0 cm below chin in front and 4.0 cm below left ear lobe was sufficient to cause death in the ordinary course of nature.
Forensic Evidence:
123. PW19 A.K. Srivastava Assistant Director (Biology), FSL Rohini has proved the Biological and Serological report prepared by him in respect of the exhibits of this case which reports are Ex.PW19/A and Ex.PW19/B respectively. The said witness has not been crossexamined by the Ld. Defence Counsels. According to the FSL report Ex.PW19/A blood St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 108 was detected on blood stained earth (exhibit 1); front seat cover of the car (exhibit 3); blood stained piece of rear seat cover (exhibit 4); cut/ torn sandow banian (exhibit 10a); cut/ torn underwear (exhibit 10b), cut/ torn T shirt (exhibit 10c); cut/ torn jeans pants (exhibit 10d) and a pair of plastic sleepers (exhibit 10e). Further, no blood stains could be detected on the clothes of the accused persons and the torn piece of front seat cover. The absence of blood stains on the torn piece of front seat cover is on account of the fact that it was recovered after six days of the incident and from the open fields and it has also come on record that there were rains in the area due to which reason the seat covers were wet. However, the forensic evidence does not assist the prosecution in any manner since the blood group on the samples could not be identified. Though the seat cover (exhibit 3) showed positive reaction of AB blood group yet there is nothing on record to show that even the blood group of the deceased was 'A' or 'B' because no reaction has been found on the exhibits belonging to the deceased. I hereby hold that though the forensic evidence does not assist the prosecution in any manner, yet at the same time it also does not favour the accused. The failure to obtain any definite forensic results is on account of improper preservation of the exhibits and also because of the exposure to the weather conditions, the rains causing the washing away of the stains.
Mechanical Inspection:
124. PW7 J.S. Pawar has proved the mechanical inspection report of the vehicle i.e. Ambassador car bearing no. DL2CH3983 which report is St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 109 Ex.PW7/A. According to this report the front seat and rear seats were not matching each other and the sitting portion of the front seat did not match with the remaining seats and the said portion was older than rest of the seats and was of a different make. Later he was shown the recovered sitting portion of the front seat in the malkhana and on inspection the said portion of the seat he has specifically opined that it matched with the remaining seats of the ambassador car. He has correctly identified the seats which had been produced before him which are collective Ex.P6.
Allegations against the accused Virender @ Dillu, Rohtash and Narender:
125. The only incriminating evidence against the accused Rohtash and Narender is the disclosure statement of the coaccused Virender @ Dillu on the basis of which they were apprehended pursuant to which the recovery of the mobile phones i.e. mobile phone of make Nokia from accused Rohtash and mobile phone of make Tata Haier from accused Narender, was effected. It is apparent from the evidence on record that at the time of recovery of the said mobile phones belonging to the deceased Joginder, from the accused Rohtash and Narender, no independent public witness was present. Vijay Singh (PW6) joined the investigations later on when the accused were taken to the place where the dead body of deceased Joginder was recovered. All the recoveries connected with the case are at the instance of the main accused Virender @ Dillu and mere recoveries of St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 110 stolen mobile phones from the rooms of Rohtash and Narender is not sufficient to connect them with the offence since they both were the tenants of the accused Virender @ Dillu and under the given circumstances, the possibility of the mobile phone being planted on them (being residing in the same house) cannot be ruled out more so because the accused Rohtash and Narender have not been identified by any of the eye witnesses who had last seen the deceased Joginder going with accused Virender @ Dillu. Though the involvement of some other person cannot be ruled out yet the allegations against the accused Rohtash and Narender do not stand conclusively established beyond reasonable doubt and therefore benefit of doubt is liable to be given to these accused Rohtash and Narender.
126. However, in so far as the accused Virender @ Dillu is concerned, I hereby hold that the motive for the offence and his involvement in the crime stand conclusively established but it does not stand established that he (Virender) had actually abducted/ kidnapped Joginder. Rather, on the contrary it is writ large from the testimony of Devender (PW1) and Mukhtiyar Singh (PW2) that Joginder who was the cobrother of the accused Virender @ Dillu (their wives being real sisters) had voluntarily gone with accused Virender @ Dillu when Virender came to take him to Haridwar being unaware his nefarious designs.
Whether Section 304 or Section 302 Indian Penal Code:
127. Ld. Defence Counsel has vehemently argued that the present case does not cover within the purview of Section 300 Indian Penal Code St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 111 and the at the most the case falls within Section 304 (I) Indian Penal Code.
In this regard I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in flicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 112 the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
128. The provisions of Section 304 (I) Indian Penal Code would apply only to those cases which fall within the aforesaid five exceptions. The present case does not cover under any of the five exceptions because St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 113 there was no sudden fight so as to cover the case under Section 304 Indian Penal Code nor the sudden provocation since the accused Virender @ Dillu had committed the murder after due premeditation. Merely because the accused Virender @ Dillu entertained a belief that Joginder was having illicit relations with his wife, does not cover the case of the accused under Section 304 (1) Indian Penal Code because the provocation is not sudden. Rather, it was premeditated and preplanned which is evident from the fact that the death of the deceased was caused by an ustra implying that the accused was carrying an ustra when he took Joginder with him. Further, the accused Virender @ Dillu came to the house of Joginder after his wife left him and returned to her parental home because he had physically assaulted her. There was sufficient cooling time between the period when the wife of Virender went away and when Virender took deceased Jogender to Haridwar. Keeping in view the aforesaid, under no circumstances, it can be held that the case of the accused can be brought under any of the explanations so provided under Section 299 Indian Penal Code or exceptions to Section 300 Indian Penal Code and I hold the accused Virender @ Dillu guilty of the offence under Section 302 Indian Penal Code.
No history of dispute/ animosity between the deceased and accused:
129. It stands established from the record that the accused Virender @ Dillu and the deceased Jogender were closely related being cobrothers (their wives being real sisters). It further stands established that they both St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 114 had cordial relations and frequently had drinking sessions together. It is also borne out from the record that it was Virender who was suspecting his wife and often taunted her with regard to her illicit relations with the deceased Joginder (brother in law) whereas there is nothing on record to substantiate the said allegations and it appears that this he did on mere suspicion. There is further nothing on record to show that there were any disputes or differences between accused Virender and Joginder on this issue or any other issue or that Virender had ever confronted Joginder or his family with the same. It is in this background that when Virender came to the house of Joginder to take him away with him to Haridwar that nobody suspected this intent or stopped him. There is also nothing on record to show that the other villagers namely Ajit Singh (PW5), Vijay Singh (PW6) and Satpal (PW8) had any dispute with Virender or were inimical to him. Hence, in view of the above, I hereby hold that there is no reason why the family of the deceased Joginder and the other villagers i.e. Ajit Singh (PW5), Vijay Singh (PW6) and Satpal (PW8) would have falsely implicate the accused Virender and I hold the testimonies of all these witnesses credible and reliable.
FINAL CONCLUSION:
130 In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 115 which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
131. Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused Virender @ Dillu stands established. He is the Sandhu/ cobrother of the deceased Joginder. It also stands established that on 1.9.2006 at about 9:00 PM the accused Virender @ Dillu took Joginder from his village Hiran Kudna on the pretext that they were going to Haridwar and the deceased was last seen alive in the company of the accused Virender @ Dillu. Further, it stands established that on 2.9.2006 the dead body of Joginder was found lying in a sugarcane field belonging to Sahansar Pal at village Tiyodi/ Baraut. It also stands established that information was given to Police Station Bagpat pursuant to St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 116 which the police of Police Station Bagpat reached the spot and conducted the search of the body during which some phone numbers were recovered which were contacted and on one of the phone number the brother in law of the deceased namely Rajeev Shokeen responded and on the basis of the description given by the Police, Rajeev Shokeen informed them that the dead body could be of his brother in law (sala) namely Joginder which fact was confirmed after Rajeev Shokeen himself identified the body. It has also been established that thereafter information was sent to the family of the deceased pursuant to which Ajeet Singh, Vijay Singh and other relatives of the deceased went to Bagpat Health Center Mortuary and identified the dead body of the deceased. It also stands established that the family members of the deceased raised a suspicion on the accused Virender @ Dillu who is the cobrother of the deceased since he had taken Joginder with him. It further stands established that pursuant to his arrest accused Virender @ Dillu got recovered the ambassador car in which he had taken the deceased to Baraut and the writ watch and gold chain belonging to the deceased Joginder and the two seats of the car which had been changed which were found matching with the remaining seats. It also stands established that the accused had pointed out the place of murder of the deceased and got recovered the weapon of offence i.e. Ustra and led the police team to village Jaunmana from where he got recovered the blood stained car seat cover which he had thrown in the fields and no explanation has been offered by the accused Virender @ Dillu as to how he came to St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 117 know the place of recovery of Ustra and car seat cover. The fact that he pointed out the said places and got recovered the weapon of offence and car seat covers which have been found to be matching with the rest of the seat covers, is a strong pointer towards the guilt of accused Virender @ Dillu.
132. It further stands established from the medical evidence on record that the injury no.1 i.e. incised wound on front of the neck of size 16 cms x 6 cms x bone deep margins with all the intervening tissues, muscles, arteries, trachea, oesophagos cut at level 3.5 cm below right ear lobe; 3.0 cm below chin in front and 4.0 cm below left ear lobe was sufficient to cause death in the ordinary course of nature. It has also been established that the above injury could be caused by the Ustra got recovered by the accused Virender.
133. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
134. In view of the above, I hereby hold the prosecution has been able to prove and substantiate the allegations against the accused Virender @ Dillu of having committed the murder of Jogender and of causing disappearance of the dead body of Jogender by throwing the dead body of St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 118 Jogender in the sugarcane field at village Tiyodi/ Baraut, Uttar Pradesh for which I hereby hold the accused Virender @ Dillu guilty of the offence under Sections 302/ 201 Indian Penal Code and convict him accordingly.
135. In so far as the accused Rohtash and Narender are concerned, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused Rohtash and Narender was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Rohtash and Narender. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Rohtash and Narender, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 302/201/34 Indian Penal Code. St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 119
136. Be listed for arguments on sentence qua the convict Virender @ Dillu on 12.4.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 7.4.2012 ASJII(NW)/ ROHINI
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 120
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST) ROHINI COURTS: DELHI Session Case No. 729/2007 Unique Case ID No.: 02404R0368172006 State Vs. (1) Virender @ Dillu S/o Sh. Sunder Lal R/o Village Bharthal, Police Station Kapashera, Delhi (Convicted) (2) Rohtash @ Prakash S/o Katar Singh R/o Village Mahra, Distt. Sonepat, Haryana (Acquitted) (3) Narender S/o Richpal R/o Village Dhikana, Police Station Baraut, Uttar Pradesh (Acquitted) FIR No.: 902/06 Police Station: Nangloi Under Section: 364/302/201/34 Indian Penal Code Date of conviction: 7.4.2012 Arguments heard on: 12.4.2012 Date of Sentence: 18.4.2012 St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 121 APPEARANCE:
Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State.
Convict Virender @ Dillu in judicial custody with Sh. Tarun Gehlot Advocate.
ORDER ON SENTENCE:
Vide a detailed judgment dated 7.4.2012 this Court has held the accused Virender @ Dillu guilty of the offence under Section 302/201 Indian Penal Code. However, he has been acquitted of the charge under Section 364 Indian Penal Code. Further, the accused Rohtash and Narender have been acquitted of the charges under Section 302/364/201/34 Indian Penal Code.
The deceased in the present case namely Joginder was the co brother (Sandhu) of the accused Virender @ Dillu (the wives of deceased Joginder and accused Virender being real sister) and as per the allegations Virender was suspecting the illicit relationship of Joginder with his (accused Virender's) wife namely Babli. There was a dispute between the accused Virender @ Dillu and his wife Babli on account of the above reason due to which reason she was even beaten and therefore she went back to her parental house. The case of the prosecution is that on 1.9.2006 at about 9:00 PM the accused Virender @ Dillu took Joginder from his village Hiran Kudna on the pretext that they were going to Haridwar and the deceased was last seen alive in the company of the accused Virender @ St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 122 Dillu. On 2.9.2006 the dead body of Joginder was found lying in a sugarcane field belonging to Sahansar Pal at village Tiyodi/ Baraut and an information was given to Police Station Bagpat pursuant to which the police of Police Station Bagpat reached the spot and conducted the search of the body during which some phone numbers were recovered which were contacted and on one of the phone number the brother in law of the deceased namely Rajeev Shokeen responded. On the basis of the description given by the Police, Rajeev Shokeen informed them that the dead body could be of his brother in law (sala) namely Joginder. Information was thereafter sent to the family of the deceased pursuant to which Ajeet Singh, Vijay Singh and other relatives of the deceased went to Bagpat Health Center Mortuary and identified the dead body of the deceased. The family members of the deceased raised a suspicion on the accused Virender @ Dillu who is the cobrother of the deceased since he had taken Joginder with him. Thereafter the accused Virender @ Dillu was arrested and pursuant to his arrest the accused Virender @ Dillu got recovered the ambassador car in which he had taken the deceased to Baraut and seats of the said car which he got replaced. He has also got recovered the wrist watch and gold chain belongings to the deceased Joginder. The accused Virender @ Dillu had also pointed out the place of murder of the deceased and got recovered the weapon of offence i.e. Ustra and led the police team to village Jaunmana from where he got recovered the blood stained car seat cover which he had thrown in the fields and no explanation St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 123 has been offered by the accused Virender @ Dillu as to how he came to know the place of recovery of Ustra and car seat cover.
On the basis of the testimonies of the various prosecution witnesses including the brother and father of the deceased; neighbours of the deceased; wife of the accused and also on the basis of medical evidence on record showing that the injury no.1 i.e. incised wound on front of the neck of size 16 cms x 6 cms x bone deep margins with all the intervening tissues, muscles, arteries, trachea, oesophagos cut at level 3.5 cm below right ear lobe; 3.0 cm below chin in front and 4.0 cm below left ear lobe was sufficient to cause death in the ordinary course of nature and also on the basis of the mechanical inspection report of the Ambassador Car, this Court has held the accused Virender @ Dillu guilty of the offence under Section 302/201 Indian Penal Code. However, he has been acquitted of the charge under Section 364 Indian Penal Code. Further, the accused Rohtash and Narender have been acquitted of the charges under Section 302/364/201/34 Indian Penal Code.
Head arguments on the point of sentence. The convict Virender @ Dillu aged about 32 years has a family comprising of aged parents, one married brother, one married sister, wife and one daughter who is studying in 9th class. Ld. Counsel for the convict has vehemently argued that the convict is not a habitual criminal and is not involved in any other case. He further submits that the convict is the helping hand of his family and the wife and daughter of the convict would face starvation in case if a St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 124 harsh view is taken against the convict.
The Ld. Public Prosecutor has on the other hand, placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Randhir Singh. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], where it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 125 circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 126
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes. St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 127
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Ravji vs State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
Now I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Virender @ Dillu is not a habitual criminal and is not involved in any other case. He has remained in judicial custody for about three years, five months and five days. The aggravating factors are that the convict Virender Dillu has committed the murder of his cobrother (Sandhu) Joginder in cold blood suspecting his illicit relations with his wife. Further, in order to screen himself from legal punishment he threw the dead body of deceased Joginder in the fields of village Tiyodi/ Baraut Uttar Pradesh.
The deceased Joginder was the cobrother of the convict Virender @ Dillu. The convict Virender @ Dillu had abused and misused the confidence and trust reposed in him by the family members of the deceased. After having considered the submissions made before me and the various aggravating and mitigating factors, his case does not fall within the category of Rarest of Rare and I therefore, award the following sentence to St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 128 the convict Virender @ Dillu:
1. The convict Virender @ Dillu is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.1,00,000/ (Rs. One lacs) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Six months. The total fine of Rs.1,00,000/ (Rs. One lac) if recovered, shall be given to the wife of the deceased Joginder as compensation under Section 357 Cr.P.C.
2. He is also sentenced to Rigorous Imprisonment for a period of five years and fine to the tune of Rs.2,000/ for the offence under Section 201 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of five days.
Both the sentences in this case shall run concurrently and benefit of Section 428 Cr.P.C. shall be given to him for the period already undergone by him during the trial in the present case as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 129
Copy of the judgment and order of sentence be given to the convict free of costs and another copy be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 18.04.2012 ASJII(NW)/ ROHINI
St. Vs. Virender @ Dillu Etc., FIR No. 902/06, PS Nangloi Page No. 130