Delhi District Court
Reddy vs . State Of Andhra Pradesh & Ors. Air 1990 ... on 2 December, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.38/11
FIR No.92/11
PS Ranjit Nagar
In the matter of:
State
Versus
1. Rajesh Chaudhary
S/o Sh. Ram Khilavan,
R/o H. No. A11, Ali Gaon,
near Sarita Vihar, New Delhi.
2. Mahesh Chaudhary
S/o Sh. Ram Bahadur
R/o ABlock, Ganpati Colony,
Roshan Nagar, Faridabad,
Haryana. .......Accused Persons
Date of institution : 04.11.2011
Date of Judgment : 29.11.2014
J U D G M E N T
Rajesh Chaudhary and his brotherinlaw Mahesh Chaudhary, accused persons before this court, have been facing trial for offences U/s 120B, 394 FIR No. 92/2011 PS Ranjeet Nagar Page 1 of 69 read with Sec.397 read with Sec.120B and Sec.302 read with Sec.34 IPC.
2. In brief, the accusation levelled against the accused persons is that on or about 02.05.2011, in between 7.15 p.m. - 7.40 p.m. in pursuance of criminal conspiracy, both of them committed robbery at H.No.11/14, Upper Ground, East Patel Nagar, Delhi and at the time of commission of robbery, Mahesh Chaudhary is alleged to have strangulated Om Parkash, aged about 87 years, father of Smt. Poonam Mehta and Sh. Kamal Kishore Jaitely. Rajesh Chaudhary, accused is alleged to have used knife in inflicting injuries on the person of the victim of robbery.
Case of prosecution is that Om Parkash (since deceased) attained superannuation from Ministry of Defence. He was residing at the aforesaid house with his son Kamal Kishore Jaitley & his family, which included Sabina Jaitley and two children Ambika and Pranav. Chhotu @ Lakhan (hereinafter referred to as the 'Juvenile'), their servant also used to reside with them. Smt. Poonam Mehta, the informant, daughter of Om Parkash, used to reside at H.No.1B/25, Ground Floor, Right Side, N.E.A., Old Rajinder Nagar, New Delhi.
Sh. Kamal Kishore Jaitley, son of the victim, used to run an advertising agency in the area of Rajindera Place. Smt. Sabina Jaitley, his wife, used to work in the same office. Rajesh Chaudhary, accused was employed by them, as a driver about 10 years prior to the present occurrence. FIR No. 92/2011 PS Ranjeet Nagar Page 2 of 69
On the day of occurrence i.e. 02.05.2011, Ambika and Pranav, children of Sh. Kamal Kishore Jaitley left by car driven by the Juvenile leaving only Sh. Om Prakash, the victim, behind. They used to go for tuition at Alaknanda Apartment. At about 7.15 pm, Smt. Poonam Mehta, received a phone call from her father. During conversation, phone got disconnected. Her father again dialled her number and inquired about her health. During conversation, her father asked her to hold for a while as there was someone at the door. According to the informant, when the phone was on, she over heard noise. Ultimately, the phone got disconnected. She tried to contact her father on his mobile phone number and thereafter, on landline phone but no one picked up the phone. She also tried to contact her father Sh. Kamal Kishore Jaitley but could not succeed. The she contacted Ambika and came to know that they had left for tuition in the company of Juvenile. The informant then reached the house of her father thinking that her father might not have fallen.
On entering the house, the informant found that there was darkness. The iron gate was lying open but the wooden door was lying locked. She contacted her father Sh. Kamal Kishore Jaitley. Thereupon, as advised, she called Anis - carpenter, who helped in getting the door open after the grill was taken out. On entering the room of her father, the informant found that he as lying on the bed, but his legs were towards ground. He was bleeding from the neck. She saw blood on the mouth and chest of her father. FIR No. 92/2011 PS Ranjeet Nagar Page 3 of 69
With the aid of Anis, the informant removed her father and made him to sit in her car and that is how, she removed him to Sir Ganga Ram Hospital. The doctor checked her father and declared him 'brought dead'.
From the hospital, when the informant returned home and checked the items, she found that a sum of Rs.25,000/ was missing from the almirah of her father; cash worth Rs.2.50 lacs/Rs.3 lacs contained in a lady's bag, was missing from the almirah of her sisterinlaw - Smt. Sabina Jaitley. Jewellery items were also found missing.
At 8.44 p.m., information was received by PCR from Sir Ganga Ram Hospital that Om Parkash had been found unconscious at his house. Again at 8.20 p.m., information was received by police of PS Ranjit Nagar that someone had given beatings to father of the informant and that she had got him admitted at hospital. DDs no.56B and 57B recorded on the basis of aforesaid informations were assigned to SI Sombir.
It is case of prosecution that on reaching the spot, SI Sombir alongwith Ct. Kirori Mal found some persons present in front of the house. On entering the house, they found clothes having stains of blood lying on a bed in one of the room, lock of wooden Almirah found lying open, and the Almirah lying open whereas articles were found lying scattered in the room. On entering the other room of the house, lock of a wooden Almirah was found lying broken and articles lying scattered. The SI received information from the Duty Officer that FIR No. 92/2011 PS Ranjeet Nagar Page 4 of 69 injured had been got admitted at the concerned hospital. Thereupon, the SI left for the hospital leaving Ct. Kirori Mal behind. On reaching the hospital, the SI collected MLC in respect of Om Parkash and the parcel sealed with the seal of the hospital purported to contain belongings and clothes of the victim. The dead body was got dispatched to mortuary. Special reports were got dispatched.
It is case of prosecution that statement of Smt. Poonam Mehta was recorded by SI Sombir at the spot. It led to registration of this case. Inspector Rajesh Kumar, Additional SHO reached the spot, as per instructions of Inspector Ravinder Singh, as the later was on duty in connection with cricket match going on at Feroz Shah Kotla Stadium.
Crime team and team were requisitioned at the spot. Crime team investigated the spot and submitted report. Chance prints were developed from the scene of crime and sent to Fingerprint Bureau.
It is case of prosecution that during spot inspection, he picked up blood stained bed sheets, blood stained kurta pyjama and six pieces of broken locks. All these were turned into sealed parcels. Ultimately, Inspector Ravinder Singh also reached the spot. Inquest proceedings were conducted in respect of dead body and the dead body was got subjected to autopsy by Dr. B.N. Mishra. The doctor opined that cause of death of Om Parkash was asphyxia caused by ligature strangulation by using rope like ligature material. FIR No. 92/2011 PS Ranjeet Nagar Page 5 of 69
During investigation, PW37 Inspector Ravinder Singh collected Call Detail Records in respect of mobile phones of suspects which revealed location of their mobile phones in East Patel Nagar on the day of occurrence on 02.05.2011, since noon time. Latest location of the mobile phones as informed by the operator was showing that accused persons were heading towards Patna via Anand Vihar, Mughal Sarai etc. On 04.05.2011, Inspector Ravinder Singh directed Inspector Rajesh Kumar to visit Darbhanga in connection with search of accused persons.
On having come to know about latest location of the accused persons i.e. in the area of Danapur and Khas Mahal Crossing. Inspector Rajesh Kumar took the team to Khas Mahal Crossing and then Darbhanga Bus Terminal.
Inspector Rajesh Kumar received information about latest location of accused persons at Darbhanga Bus Terminal. He then contacted local police LMN University. From there, he took along SI Ashok and other staff and reached Leela Krishna Bhawan, a guest house, near Darbhanga Bus Terminal. There Sh. Rajesh Kumar Aggarwal owner of the guest house was joined.
Both accused persons were found present at Room No.106 of the guest house. Rajesh Chaudhary accused was found in possession of railway ticket, mobile, and cash worth Rs.11,500/, ATM card and other items. FIR No. 92/2011 PS Ranjeet Nagar Page 6 of 69
Mahesh Chaudhary was found in possession of Rs.5500/. That is how, Rajesh accused was arrested.
Both the accused were then produced before Chief Judicial Magistrate, Darbhanga and their custody remand was obtained.
On reaching Anand Vihar Railway Station, Delhi both the accused were produced before Inspector Ravinder Singh.
Both the accused when interrogated by Inspector Ravinder Singh, made disclosure statements. Rajesh accused disclosed to have kept concealed stolen money and gold ginny at his house in the area of Ganpati Colony, Faridabad, Haryana and offered to get the same discovered. He allegedly disclosed to have kept concealed the clothes which he and his coaccused Mahesh Chaudhary were wearing at the time of commission of crime and offered to get the same discovered from the fields situated near the aforesaid house.
Mahesh accused is also alleged to have made disclosure statement in line with that of Rajesh accused. He further disclosed to have kept concealed two laptops and one beam laser i.e. stolen property with his friend Satish present at Sriniwaspuri, and offered to get these items discovered.
Case of the prosecution is that both the accused then led the party headed by Inspector Ravinder which also included Kamal Kishore Jaitley, to a house in the area of Ganpati Colony, Faridabad, Haryana. On entering the FIR No. 92/2011 PS Ranjeet Nagar Page 7 of 69 house, Rajesh accused is alleged to have picked up a key from over an almirah, lying in a room and handed over the same to accused Mahesh. Thereupon, Mahesh accused opened the almirah and took out from it containing cash worth Rs.2,80,000/ i.e. stolen property.
Thereafter Rajesh Chaudhary accused took the police party to the terrace of the house and produced a gold ginny, after having picked up the same from under the bricks lying there.
After that, both the accused led the party headed by Inspector Ravinder Singh to the fields situated nearby and from there both the accused picked up polythene containing two shirts and produced same before the police.
It is also case of the prosecution that on 02.05.2011 at about 7/8 pm accused Mahesh Chaudhary contact his friend Satish and handed over to him a bag containing two laptops and camera like instrument telling him that he would come the next day and collected these items from him.
On 07.05.2011, accused Mahesh accused is alleged to have then led the party headed by Inspector Ravinder Singh to the house of Satish Kumar in the area of Sri Niwas Puri. There, Satish produced before the party two laptops and one laser beam.
On 8.05.2011 both the accused were interrogated once again by Inspector Ravinder Singh. Both of them made disclosure statements. Rajesh, accused, allegedly disclosed to have kept concealed stolen jewellery in the FIR No. 92/2011 PS Ranjeet Nagar Page 8 of 69 almirah lying at the house of the complainant as that was part of the stolen property and had fallen to the share of juvenile. He further disclosed to have thrown away stolen ladies bag containing rope use in strangulating Om Prakash Sharma in a pond, near Awana market, and offered to get the same discovered from there.
Accused Mahesh is also stated to have made disclosure statement and offered to get recovered knife i.e. weapon of offence, from the drain by the side of bus stop in the area of Sri Niwas Puri.
The Inspector handed over custody of both the accused to PW35 Inspector Gurdev Singh.
Thereupon, Inspector Gurdev Singh accompanied by Ct. Kamla Prasad, Ct. Sat Prakash, Kamal Kishore Jaitely, and both the accused reached bus stand Sri Niwas Puri. From the vacant space by the side of the bus stand accused Mahesh Chaudhary got recovered one knife. Its blade was found stained with blood. Knife was seized.
Both the accused are alleged to have led the party headed by Inspector Gurdev Singh to Faridabad. Kamal Kishore Jaitely also accompanied them to Awana Market, District Faridabad, Haryana. Some bricks and woods were found lying by the side of a pond in that area. From those bricks and woods, Rajesh Chaudhary picked up one ladies bag of black colour and produced the same before Inspector Gurdev Singh. It was found containing a 5 feet long FIR No. 92/2011 PS Ranjeet Nagar Page 9 of 69 rope. Rope was having stains of blood. The Inspector seized the bag and rope.
Case of the prosecution is that on 09.05.2011, Inspector Ravinder Singh reached the house of Kamal Kishore Jaitely, where Lakhan (juvenile) was found present there. He was inquired and apprehended, got medically examined and ultimately produced before Juvenile Justice Board.
On 09.05.2011 safe custody of the juvenile was obtained by Inspector Ravinder Singh. The juvenile then provided information and in pursuance thereof got discovered two gold chains and three gold rings from the almirah lying in the balcony of the house of Kamal Kishore Jaitely. These were turned into parcel, that was sealed and seized.
On 14.06.2011, Inspector Ravinder Singh moved application before Dr. B. N. Mishra to have his opinion regarding consistency of injuries observed on the dead body Sh. Om Prakash Sharma with the weapons contained in two sealed parcels produced before the doctor on that day. Doctor examined the material objects and gave his opinion.
Inspector Ravinder Singh collected invoice of the two laptops and statement of account from the complainant.
On 16.07.2011, SI Mahesh Kumar accompanied by Inspector Ravinder Singh reached the scene of crime took rough notes and measurements as pointed out by Inspector and ultimately prepared scaled site plan. FIR No. 92/2011 PS Ranjeet Nagar Page 10 of 69
On 04.07.2011 material exhibits were despatched to FSL and the same were analyzed.
3. On completion of investigation, challan was put in court. Copy of challan and the accompanying documents were supplied to the accused persons free of costs U/s 207 Cr.P.C. Case came to be committed to the Hon'ble Court of Session.
Charge
4. Prima facie case having been made out, charge for offences U/s 120B, 394 read with Sec.397 read with Sec.120B and Sec.302 read with Sec.34 IPC was framed against accused on 25.04.2012, to which they pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case, prosecution examined following 39 witnesses: PW1 WCt. Promila To prove receipt of information by the PCR on 02.05.2011 at 20.14.41 from mobile phone no.9818545245 to the effect that someone had given beatings to the father of the caller and committed theft.
PW2 WCt. Ruchi To prove receipt of information by PCR on 02.05.2011 at 20.44.14 from Sir Ganga Ram Hospital that Om Parkash (since deceased) was unconscious at his house.
PW3 Sh. Pankaj Kumar, Clerk, To prove statement of account of the office SBI of Vivd India Advertising & Marketing, New Delhi.
FIR No. 92/2011 PS Ranjeet Nagar Page 11 of 69 PW4 HC Randhir Singh, To prove recording of DD entries and FIR. concerned Duty Officer PW5 HC Anil Kumar, Duty Officer To prove recording of DD no.56B and 57B Ex.PW5/A and Ex.PW5/B. PW6 HC Tara Chand, Member of Crime Team.
Photographer
PW7 SI Dhan Singh Incharge of Crime Team.
PW8 ASI M.S. Bisht Another member of Crime Team.
PW9 Dr. B.N. Mishra, DDU To prove autopsy report Ex.PW9/B in Hospital respect of dead body of Om Parkash and subsequent opinion Ex.PW9/B regarding weapon of offence.
PW10 Sh. Israr Babu Nodal Officer, Vodafone Mobile Service Ltd.
PW11 Sh. Rakesh Soni Jr. Telecom Officer, MTNL.
PW12 Sh. Vishal Gaurav Nodal Officer, Bharti Airtel Lted.
PW13 Dr. Aathir Pankajakshan To prove medical examination of Om
Parkash on 02.05.2011.
PW14 Ms. Poonam Mehta, On whose statement present case came to daughter of victim be registered.
PW15 SI Mahesh Kumar, To prove scaled site plan.
Draughtsman PW16 Sh. Mohit Kumar To prove invoice regarding sale of laptop to Kamal Kishore Jaitley.
PW17 HC Gyan Parkash, MHC(M) Who dealt with case property. PW18 Sh. J.K Mehta, Branch To prove statement of account.
Manager, State Bank of Patiala
PW19 Sh. Kamal Kishore Jaitley Son of victim.
PW20 Smt. Sabina Jaitley, w/o Sh. Daughterinlaw of victim. Kamal Kishore Jaitley FIR No. 92/2011 PS Ranjeet Nagar Page 12 of 69 PW21 Sh. Satish To prove recovery of bag containing two laptops and a laser beam.
PW22 Ms. Ambika Jaitley Grand daughter of victim.
PW23 Sh. Kunal Jaitley Grandson of victim.
PW24 Sh. Mannan Ali Shah In respect of misuse of his ID proof by
someone to get mobile phone connection.
PW25 Sh. Anis, Carpenter Who helped in gaining entry to the house
of the deceased, when called by Ms.
Poonam Mehta, informant.
PW26 Ct. Ram Niwas Who participated in the investigation.
PW27 Owner of Lila Krishna To prove arrest of the two accused and
Bhawan, Hotel/Guest House, in recoveries.
Bela Garden, Darbhanga, Bihar
PW28 Ct. Kirori Mal Who participated in the investigation.
PW29 Ct. Yogesh To prove delivery of special reports.
PW30 HC Mahender Singh Who participated in the investigation.
PW31 SI Ashok Kumar From PS Kulsheshwar Isthan, District
Darbhanga
PW31 SI Yaqub Khan Who participated in the investigation.
PW32 Ct. Kamla Parsad Who participated in the investigation.
PW33 Ct. Satya Parkash Who participated in the investigation.
PW34 SI Vivek Singh Who participated in the investigation.
PW35 Inspector Gurdev Singh Who partly investigated the case.
PW36 SI Sombir Who partly investigated the case.
PW37 Inspector Ravinder Singh Investigating Officer of the case.
PW38 Inspector Rajesh Kumar Who partly investigated the case.
FIR No. 92/2011 PS Ranjeet Nagar Page 13 of 69
Statement of Accused
6. When examined U/s 313 Cr.P.C. both the accused persons have claimed false implication.
Plea of accused Rajesh Chaudhary reads as under : "On 02.05.2011, Lakhan told me at about 4 pm that he was taking away the two children from their house for tuition. He so informed me on phone. I do not know as to where Lakhan was at that time, when he so informed me. He also informed that Smt. Sabina Jaitely had not reached the home. I do not know about any conversation between Lakhan and Smt. Sabina Jaitely, as put to me.
I proceeded on leave from the office of Sh. Kamal Kishore Jaitely prior one month from the occurrence, the reason being that I suffered burn on account of bursting of stove at my house in Sri Niwas Puri. It is correct that during those days I was getting a house constructed in Vasant Pur, Faridabad, under my personal supervision. During the evening I used to return the house of my fatherinlaw in the area of Roshan Nagar, Faridabad. Police never visited the site under construction or the house of my father in law.
I may mention that in connection with population education programme, there used to be tenders and Kamal Kishore Jaitely used to arrange programme in this regard from time to time. I used to be a member of such groups, as an electrician.
On 02.05.2011, at about 11.30 am, Sabina Jaitely contacted me on my mobile phone from her mobile phone and asked me to reach 11/14, East Patel Nagar as I was to go out of station in connection with her work. I showed my reluctance telling her that I was to visit my native village Hari, District Madhubani, Bihar.
Although I showed my reluctance, Sabina Jaitely asked me to come. Thereupon, I accompanied by Mahesh my coaccused came to Delhi and contacted Sabina Jaitely at her house at about 1.30 pm. Sabina Jaitely was not available there. Lakhan told me that she was away from the house. I and Mahesh remained in the area upto 4.30 - 5 pm. Then we met Sabina Jaitely at her house. At that time, she handed over to me two laptops and FIR No. 92/2011 PS Ranjeet Nagar Page 14 of 69 one laser beam, for service. She also paid Rs.20,000/ in cash. I may mention that I had brought Mahesh along to the house of Sabina Jaitely as I could not carry any item due to burns on my hand.
After collecting the aforesaid items, I and Mahesh reached Nehru Place for service of two laptops and two laser beams but no such shop was found lying open. When I inquired from Mahesh as to where we could keep, in safe custody, the two laptops and laser beam, till our return from our native village. As suggested by Mahesh, I handed over to Satish, his friend, resident of Sri Niwas Puri, the two laptops and a laser beam for safe custody. I and Mahesh then returned to Roshan Nagar, Faridabad.
In the morning of 03.05.2011, I and Mahesh, boarded a train from Anand Vihar Railway Station for Patna. We reached Patna in the morning of 04.05.2011. From Meethapur, we took a bus and reached Darbhanga. At about 89 pm, When we were moving on road in the area of Darbhanga, Delhi Police, who were in civil dress, apprehended me and Mahesh. After having apprehended us, the police took us to Leela Krishan Bhawan guest house Darbhanga and stayed with us there during the night. Police subjected us to beating at the guest house during the night. Police took over from us our bag and baggage and money.
In the morning, we were taken to local police station, then produced before a Magistrate, then before a doctor for medical examination and then we were brought to Delhi. That is how we have been falsely implicated." Plea of accused Mahesh Chaudhary reads as under : "Rajesh Chaudhary was on leave for the last one month because of burns suffered on his right hand. During those days, he was getting a house constructed in village Khajuri but he used to reside at our house in Roshan Nagar, Faridabad. I used to remain at my house. It is false that I and Rajesh Chaudhary were absconding.
On 02.05.2011, at about 11.30 am, Rajesh Chaudhary told me that he had received a phone call from his boss Sabina Jaitely on his mobile phone and that I should accompany him. Accordingly, I accompanied Rajesh Chaudhary from Roshan Nagar, Faridbad and reached Patel Nagar, New Delhi. Rajesh Chaudhary then made a phone call, perhaps to Lakhan and thereafter to Ms. Sabina Jaitely. Then he told me that Ms. Sabina Jaitely was FIR No. 92/2011 PS Ranjeet Nagar Page 15 of 69 not present at the house and we will have to wait. Ms. Sabina Jaitely reached the place where we were present in the street. There she handed over to Rajesh Chaudhary containing some items. At that time, I was present at a distance from them.
After collecting the aforesaid items, I and Rajesh Chaudhary reached Nehru Place for service of laptop given to him by Ms. Sabina Jaitely as, Rajesh told me on the way. No such shop was found lying open at Nehru Place. Then Rajesh inquired from me as to where we could keep the items given to him by Sabina Jaitely and I told him about my friend Satish who used to reside in the Sriv Niwas Puri. So I took Rajesh to Sri Niwas Puri and Rajesh delivered the aforesaid items, which were given to him by Sabina Jaitely, to my friend Satish. At that time, Rajesh told Satish that both of us were leaving for village would collect the same by 1012th of the month on return. Then I and Rajesh then returned to Roshan Nagar, Faridabad.
In the morning of 03.05.2011, I and Rajesh, boarded a train from Anand Vihar Railway Station for Patna. We reached Patna in the morning of 04.05.2011. From the bus stand of Patna, we boarded a bus and reached Darbhanga in between 7/8 pm. On reaching Darbhanga we went to Rehri to take dinner. Some police officials came from behind and apprehended both of us. The police took us to a nearby guest house in Darbhanga. We were detained and beaten there at the guest house.
In the morning, we were taken to local police station. There our signatures were obtained on papers and then produced before a Magistrate, then before a doctor for medical examination and then we were brought back to local police station. During the night at about 11.45 pm those police officials took us along from Darbhanga to Railway Statio and we were brought to Delhi. That is how, we were brought Anand Vihar and then to police station and that is how we have been falsely implicated." Despite opportunity, accused persons have opted not to lead any evidence in defence.
7. Arguments heard. File perused.
FIR No. 92/2011 PS Ranjeet Nagar Page 16 of 69
Occurrence took place when Sh. Om Prakash was alone
8. Occurrence is alleged to have taken place in the evening of 02.05.2011 Sh. Om Prakash was alone at his H. No. 11/14, East Patel Nagar. It stands established from the prosecution evidence that PW19 Kamal Kishore Jaitely, son and PW20 Ms. Sabina Jaitely, daughter in law, Ms. Ambika Jaitely, grand daughter and Pravan, grand son of Om Prakash Sharma (deceased) were residing in the same house. From the statement of PW19, it stands proved that he came to know of the occurrence from his sister Ms. Poonam Mehta on phone on 02.05.2011, at about 7.30 pm, as he was away to Ashlok Hospital to see his brother Sh. Sandeep Jaitely lying admitted there.
PW23 Sh. Kunal Jaitely, nephew of PW19 has supported the version of this witness regarding receipt of information on 02.05.2011, at 7.15 pm. As further stated by PW23, he accompanied PW19 to the place of occurrence but by then Ms. Poonam Mehta had removed her father Sh. Om Prakash Sharma to Sir Ganga Ram Hospital. It is in the statement of PW23 Kunal Jaitely that as directed by PW19, he dialed 100 number and informed PCR.
PW1 Woman Constable Promila from PCR has supported the case of prosecution regarding receipt of information by her on that night at 20:14:41 regarding receipt of information that someone had given beatings to his father and committed theft in the house and that his father has lying admitted in hospital. According to PW1, she received information from phone no. FIR No. 92/2011 PS Ranjeet Nagar Page 17 of 69 9818545245.
9. Learned defence counsel has pointed out that as per statement of PW1 this call was received from one Narender Gyan Singh and as such it cannot be said that PW23 Kunal Jaitely as directed by Sh. Kamal Kishore Jaitely, called PCR by dialing number 100.
On the other hand, learned Addl. PP has rightly pointed out that during crossexamination of PW23 Kunal Jaitely, he was not questioned about his mobile phone and that actually the mobile phone no.9818545245 recorded in the PCR form Ex PW1/A is of PW23 Kunal Jaitely.
No evidence has been led to the contrary to show that aforesaid mobile phone number was not of Kunal Jaitely or that it was in the name any person, namely, Narender Gyan Singh. Accused have not brought on record any evidence that father of any such caller namely, Narender Gyan Singh had been inflicted beatings or that theft was committed at the house of any such person or that his father was got admitted at a hospital.
The version available in the information communicated from the aforesaid mobile pone to the PCR is rather in consonance with the version put forth by prosecution that this information was communicated to the police by Kamal Kishore Jaitely from the mobile phone of his nephew Kunal Jaitely who was accompanying him.
FIR No. 92/2011 PS Ranjeet Nagar Page 18 of 69
Not only the aforesaid information was received by PCR staff, another information was received by PW1 from PCR van at 20:49:58. This information stands recorded from point B to B1 in PCR form Ex PW1/A. The subsequent information from point B to B1 is to the effect that Sh. Om Prakash Sharma, aged 87 years, was present at the house in the evening while children were away but incident took place at abot 7 pm and further that family members had already removed Sh. Om Prakash Sharma to hospital; that Lock of the almirah were found broken and articles were found missing. It further reveals that by 21:19:06 Additional SHO had reached the spot; that at 22:22:57 PCR was informed that at Ganga Ram Hospital, Sh. Om Prakash had been declared "brought dead" when brought there by his daughter Poonam Mehta.
PW5 HC Anil Kumar has proved recording of DD No. 56B Ex PW5/A and 57A Ex PW5/B on receipt of the information from the PCR firstly at 8.20 pm and thereafter at 8.50 pm.
10. Present case came to be registered on the statement of PW14 Ms. Poonam Mehta. The statement was recorded at the spot by SI Sombir. The statement is Ex.PW14/A. It was concluded at 1.00 a.m., on the night intervening 02/03.05.2011.
According to PW14, Ms. Poonam Mehta on 02.05.2011 at about 7.15 pm, she received a phone call from her father i.e. from the landline no. 25889704, on her mobile phone no. 9868113416. He talked to her for about 2 FIR No. 92/2011 PS Ranjeet Nagar Page 19 of 69 minutes. During conversation, his phone got disconnected. He again called her, after 1015 seconds. During this conversation, her father communicated to her that there was someone at the door. Saying so, he asked her to wait. In this process, she heard noise from the side of her father. All of a sudden, the call got disconnected. Further, according to PW14, she waited for half a minute and called her father on the landline number but he did not pick up the phone. She then tried to contact on mobile phone and landline phone but calls went unanswered. Then she contacted her elder brother "Kamal Jaitely" but he could not be contacted. She then contacted her niece Ms. Ambika Jaitely. She learnt from Ms. Ambika that she and her brother Pranav were at tuition centre. Upon this she, reached the house of her father at about 7.35 - 7.45 pm. On reaching there she found total darkness inside the house. The bell was out of order. Irongrillgate was found lying open but wooden door was lying closed. She did not get any response from inside. Then she called her elder brother Kamal Jaitely on his mobile phone who suggested to bring one Anish, carpenter and she brought him home. The carpenter entered the balcony and removed iron grill of the window and then entered the house. Thereafter, carpenter opened the grill of the widow of the window, and that is how, she could enter the house.
Ex PW11/D is CDR in respect of mobile phone connection no. FIR No. 92/2011 PS Ranjeet Nagar Page 20 of 69 9868113416 of Ms. Poonam Mehta for the period 02.05.2011 to 03.05.2011.
As rightly pointed out by Ld. Addl. PP, while referring to CDR Ex PW11/D, on 02.05.2011 at 7:01:56 a call was received on the mobile phone no. 9868113416 of Ms. Poonam Mehta from 25889704. Again, at 7:02:48 a call was received from the same landline number on this mobile phone. This corroborates the abovesaid version narrated by Ms. Poonam Mehta regarding receipt of call from her father on that date at 07.01 and 07.02 pm. In support of the version of the prosecution that on 02.05.2011 at about 7 pm, Sh. Om Prakash was alone at the house, prosecution has examined PW22 Ambika Jaitely, grand daughter of the victim. According to her on 02.05.2011. She and her brother Pranav Jaitely left the house at 4 pm for tuition classes at Alaknanda apartments in the company of Lakhan their servant. Further according to her, at the time they left for tuition and only her grand father was behind at the house.
PW25 Anish Ahmed has also supported the version narrated by Ms. Poonam Mehta regarding the manner in which he helped Ms. Poonam Mehta enter the house. According to PW25, on 02.05.2011, Ms. Poonam Mehta called him and told that her father was not opening the door from inside. Accordingly, he picked up his tools and reached H. No 11/14, East Patel Nagar, in the company of Ms. Poonam Mehta, opened a grill of the window of the house and found that father of Ms. Poonam Mehta was lying on the bed FIR No. 92/2011 PS Ranjeet Nagar Page 21 of 69 with his legs hanging down. As regards efforts made to enter the house, PW25 has stated that he opened the main gate of the house from inside and that is how Poonam Mehta also entered the house. PW25 further supported the statement of Ms. Poonam Mehta, on the point of removal of Sh. Om Prakash Sharma to Sir Ganga Ram Hospital in her can. Further according to him, doctor available at the emergency declared her father brought dead.
There is nothing in the statement of PW25 Anish to disbelieve what he has stated therein. In his crossexamination, he has explained his presence on the given date and time at a building under constructions nearby and is arrival at the spot in 5 minutes. He has further stated in his crossexamination that he did not hear any kind of noise from inside the house.
Further according to him, police made inquiries from him on his return to the house of Kamal Jaitely at about 8.30 pm. He noticed that police had reached the place of occurrence by then.
From the statement of PW4 HC Randhir Singh, it stands proved that rukka was brought to the police station by Ct. Kirori Mal at 1.25 a.m. In this regard, PW4 recorded DD no.3A and then got recorded FIR from Ct. Amit on computer. Certificate U/s 65B of Indian Evidence Act is Ex.PW4/C. Copy of the FIR is Ex.PW4/D. According to PW4, investigation was assigned to Inspector Ravinder Singh while copy of FIR and the rukka were sent to the Inspector, through Ct. Kirori Mal. He has also deposed regarding dispatch of FIR No. 92/2011 PS Ranjeet Nagar Page 22 of 69 special reports to Chief Metropolitan Magistrate and another senior police officers, vide DD no.4A Ex.PW4/E. PW36 SI Sombir is the first police officer, who happened to reach the spot in the company of Ct. Kirori Mal. According to PW36, on reaching the said house i.e. H.No.11/14, East Patel Nagar, New Delhi, some people were found present in front of the house, on entering the house, they found clothes having stains on blood lying on bed in one of the rooms, broken lock of wooden almirah lying in the room; the almirah lying open and articles lying scattered. On entering the other room of the house, they found lock of a wooden almirah lying broken, almirah lying open and articles lying scattered.
Learned defence counsel has submitted that PW14 Ms. Poonam Mehta admitted in her crossexamination that when she visited the house of her father, she did not see kurta - pyjama of her father lying there. The contention is that this creates doubt in the version of prosecution regarding recovery of blood stained Kurta - pyjama from the room.
In her cross examination, PW14 Ms. Poonam Mehta has stated that at the time she firstly visited the house of her father, she could not see kurta - pyjama of her father lying there. She did not state that she had not seen kurta
- pyjama of her father was not lying there. She explained that she noticed the same at the time of second visit. This goes to show that at the time PW14 visited there first, she could not see kurta - pyjama lying there. But it does not FIR No. 92/2011 PS Ranjeet Nagar Page 23 of 69 meant that kurta - pyjama was not there in the room.
According to PW28 Ct. Kirori Mal, Inspector Ravinder Singh, during inspection, picked up two bed sheets and kurta - pyjama of the deceased as well. The witness identified kurta - pyjama Ex.P14 & Ex.P15 and the two bed sheets Ex.P16 & Ex.P17 seized in his presence. Seizure memo Ex.PW19/A bears attestation of SI Sombir, Ct. Kirori Mal, ASI Bijender Singh and PW Kamal Kishore Jaitley. It was prepared by PW37 Inspector Ravinder Singh. PW37 has also deposed that one blood stained kurta - pyjama was also found lying on the bed. He further deposed about blood stained bed sheet lying on the bed. He has also proved memo Ex.PW19/A. Contents of memo Ex.PW19/A reveal that vide this memo, two bed sheets, having stains of blood and kurta - pyjama, also having stains of blood, were picked from the place of occurrence, turned into one parcel, then sealed with the seal bearing impression 'RS'.
From the above evidence, this Court does not find any merit in the contention raised by learned defence counsel that prosecution version regarding presence of blood stained kurta - pyjama at the place of occurrence and their recovery from there, is doubtful.
There is another seizure memo Ex.PW19/C prepared by Inspector Ravinder Singh regarding seizure of sample of blood lying scattered on the ground. PW36 SI Sombir and PW37 Inspctor Ravinder Singh have proved this FIR No. 92/2011 PS Ranjeet Nagar Page 24 of 69 document. According to PW37, blood was picked up from the room by the FSL team.
PW7 SI Dhan Singh, Incharge of the Crime Team, has also deposed that blood stains were found present on the ground. Report Ex.PW7/A was prepared by SI Dhan Singh on inspection of the place of occurrence, in between 9.30 p.m. to 1130 p.m. Statement of PW7 regarding inspection of the scene of crime on the aforesaid date, time and place goes unchallenged.
Another item seized by Inspector Ravinder Singh from the spot was broken pieces of a lock. According to PW37 Inspector Ravinder Singh, these pieces lying in a room, were picked up, turned into parcel and sealed with seal bearing impression 'RS'. The witness has proved seizure memo Ex.PW19/B prepared in this regard.
The pieces of lock were produced in court and exhibited as Ex.P19. PW36 SI Sombir correctly identified the pieces of lock seized from the spot in his presence. Similarly, PW28 Ct. Kirori Mal also identified the pieces of lock produced in court, which were seized from the spot in his presence during the spot inspection vide memo Ex.PW19/B. PW19 Kamal Kishore Jaitley, another witness to seizure memo Ex.PW19/B has also proved h is attestation on this document regarding seizure of the broken pieces of lock.
It is case of prosecution that PW37 Inspector Ravinder prepared rough site plan of the place of occurrence. Same is Ex.PW37/B. PW14 Ms. Poonam FIR No. 92/2011 PS Ranjeet Nagar Page 25 of 69 Mehta has also deposed that police prepared site plan of the place of occurrence in her presence.
11. Learned defence counsel has contended that prosecution has not been able to establish beyond doubt that Ms. Poonam Mehta removed her father from his house to Sir Ganga Ram Hospital. This submission is that since clothes of Ms. Poonam Mehta did not get stained with blood, this fact belies the version of prosecution.
As per MLC Ex.PW13/A, Om Parkash was brought to Sir Ganga Ram Hospital on 02.05.2011 at about 8.13 p.m. In the column meant for the person who brought the injured to the hospital, name of Ms. Poonam Mehta stands recorded. In the column meant for date and time of occurrence / accident, it also stands recorded that the victim was seen by the person who had brought him to the hospital. This also goes to show that Ms. Poonam Mehta had seen the victim at 7.30 p.m. and then brought her father to the hospital at about 8.15 p.m. As observed by the doctor in MLC Ex.PW13/A, the wound on the neck of the victim was bleeding. There was also bleeding from both the years.
Cross examination of PW14 Ms. Poonam Mehta does not reveal that she was subjected to any cross examination on the point if her clothes got stained with blood, or not, and in case the same got stained with blood what happened to those clothes i.e. as to whether those were or were not produced FIR No. 92/2011 PS Ranjeet Nagar Page 26 of 69 before the police or seized or not seized by the police. In absence of any cross examination of the witness on this point and explanation sought from her, it cannot be said that Om Parkash was not removed from his house to Sir Ganga Ram Hospital by his daughter PW14 - Ms. Poonam Mehta.
12. Another contention raised by learned defence counsel is that regarding conduct of Ms. Poonam Mehta as she did not call any person from the neighbourhood on having seen that her father was lying injured inside the house. Ms. Poonam Mehta has admitted in her cross examination to have not called anyone, at the time her father was to be taken to the hospital. She also did not call police on finding her father lying injured in the house. But the witness was not further questioned as to why she did not call anyone from the neighbourhood at the time she was to remove her father to hospital. Had she been questioned further, she might have furnished explanation in this regard. It appears that she was more worried about her father and as such thought it proper to remove her father to the hospital, as soon as possible, with the aid of Anees, carpenter who was present with her. This conduct of the daughter can safely be said to be natural and does not create any doubt in her testimony regarding removal of her father by her from the house to the hospital.
As noticed above, present case came to be registered on the statement made by PW14 Ms. Poonam Mehta, at the spot and the same was sent to the police station. Prompt registration of the case after recording of statement of FIR No. 92/2011 PS Ranjeet Nagar Page 27 of 69 Ms. Poonam Mehta rules out possibility of any deliberations or consultations or securing presence of witnesses.
It is in the statement of PW 13 Dr. Aathira Pankajakshan, CMO, Sir Ganga Ram Hospital, Delhi that on 02.05.2011, at about 8.13 pm, Om Prakash Sharma S/o Sh. Satnam Dass, aged 86 years, was brought to emergency by Ms. Poonam Mehta. He was brought to the hospital with the alleged history of being found unconscious on bed in his bedroom with bleeding from mouth and all over the chest, at 7.30 pm on the same night. As per history given, the room was found lying locked from inside. The patient was reported to be having cardiac problem and had under gone bypass surgery three years prior thereto. He was also reported to have pacemaker around 1½ year back. This history was given by his daughter.
From the above discussion, it stands established that on 02.05.2011, occurrence took place, at H.No.11/14, East Patel Nagar, New Delhi, at about 7.00 p.m., at the time, Om Parkash (since deceased) was present there along. It also stands established that Ms. Poonam Mehta was the first to reach the place of occurrence and gain entry to the house with the assistance of PW Anis, the carpenter. It also stands proved that Ms. Poonam Mehta removed her father from the house to Sir Ganga Ram Hospital in the company of PW Anis, the carpenter.
Medical Evidence According to PW13 Dr. Aathira Pankajakshan, she medicolegally FIR No. 92/2011 PS Ranjeet Nagar Page 28 of 69 examined Om Prakash Sharma, and found that the patient was brought dead to the hospital. The patient had cervical deformity due to underlying ankylosing spondylosis.
On medicolegal examination the doctor, observed following injuries:
1. Cshaped stab wound at the root of neck anteriorly 1.5 inches in length irregular margins,
2. Lacerated injuries on the root of neck,
3. Bluish discolored linear markings at root of neck encircling the neck above the lacerations,
4. Bluish discoloration on right side of neck, bleedings from both ears and from would at root of neck.
The dead body was got dispatched to mortuary for postmortem examination. MLC Ex PW13/A stands duly proved.
PW9 Dr. B. N. Mishra, Medical Officer, DDU Hospital conducted autopsy on the dead body on 03.05.2011.
On general examination of the body, PW9 found rigor mortis present all over the body. Postmortem staining was present on the back aspect of the body. Both the eyes were lying closed with congestion and subconjuntival haemorrage was present. Mouth was lying partially opened. Face was found congested and suffused.
On external examination, PW9 observed following injuries on the dead FIR No. 92/2011 PS Ranjeet Nagar Page 29 of 69 body: "1. Ligature mark present all around the neck at the level of thyroid cartilage with horizontally placement. The total length of the ligature mark measured 38 cm in circumference and 2 cm - 3.5 cm in width with variable degree of pressure marks with abraded bruised at base of ligature mar and marginal area.
The anterior aspect of ligature mark presented with diffused in pattern and abraded bruised with having the width of 2.5 cm - 3.5 cm. The inferior boarder of the ligature mark bears deep grooving pressure mark which continues towards the lateral and posterior aspect of the neck with width of 1cm. On the bilateral and posterior aspect of the neck presented pressure mark with grooving markedly with uniform and continuous in pattern having the width of 1.5 cm. The anterior aspect of pressure mark have reddish brown colour while rest of part having blackish brown in colour. On dissection of the ligature mark the underneath tissue seen bruised and ecchymosed.
On further exploration of the area (neck part) multiple bruising and extravasations of blood revealed on the soft tissue of neck including larynx, pharynx and muscles of the neck (sternohyoid, sternomastiod and fascia etc. The laryngeal and tracheal mucosa seen highly congested. The right cornua of the hyoid bone and right lamillae of the thyroid cartilage found fractured alongwith collection of dark red clotted blood adjacent of fractured site.
2. Three apartly placed incised wounds of variable size from 2cm x 1c x muscle deep to 1.5 cm x 0.5cm x skin deep present on the basal part of the neck above the sternum having sharp and regular margins with minimal amount of dark red clotted blood present in and around it." On internal examination, PW9 observed that the subscalp was found congested with petechials; congested engorged blood vessels of meninges and brain with numerous petechae seen on the surface of the brain; the hyoid bone, thyroid cartilage fractured alongwith multiple bruising and haemorrhagic spots into the soft tissue of neck as mentioned in external injury no. 1; FIR No. 92/2011 PS Ranjeet Nagar Page 30 of 69 Tracheal mucosa was found highly congested and covered by bloody froth; Blood tinged froth present in tracheal lumen and Both lungs were found congested and suffused on cut section exudating bloody froth.
13. In the opinion of the doctor (PW9), cause of death was ashpyixa caused by ligature strangulation by using rope like ligature material. All the injuries were antemortem in nature and of same duration. External injury no. 1 was sufficient to cause death in the ordinary course of nature. It was a case of homicidal death. The time that elapsed between death and postmortem examination was approx. 18 hours. PW9 has proved autopsy report Ex PW9/A. Medical evidence lends corroboration to the version of prosecution as to when the occurrence took place.
Question then arises, as to who committed the crime?
14. This case is based on circumstantial evidence.
Law regarding circumstances evidence is well settled. Honb'le Apex Court has laid down following principles :
1. the circumstances from which the conclusion of guilt is to be drawn should be fully 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. FIR No. 92/2011 PS Ranjeet Nagar Page 31 of 69
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 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 that the act must have been done by the accused.
Reference in this regard may be made to decision in Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. AIR 1990 SC 79; Chenga Reddy & Ors. Vs. State of Andhra Pradesh (1996) 10 SCC 193; Sharad Birdhichand Sards Vs. State of Maharashtra 1984(4) SCC 116; and State of UP Vs. Satish 2005 (1) JCC 408; Deepak Chadha Vs. State 2012 (1) JCC 540; Ramreddy Rajesh Khanna Reddy Vs. State A.P. AIR 2006 SC 1656; Sahadevan And Anr. Vs. State of Tamil Nadu, 2012 (5) SCALE 415
15. In this case prosecution has relied on following circumstances :
1. Location of the accused persons in and around the area of Patel Nagar on 02.05.2011.
2. False plea put forth by accused.
3. Accused found absconding.
4. Arrest of accused Rajesh and Mahesh accused from Darbhanga.
5. Recovery of stolen property from the two accused. FIR No. 92/2011 PS Ranjeet Nagar Page 32 of 69 Accused were absconding
16. It is in the statement of PW37 Inspector Ravinder Singh that he searched for the accused persons, but they were not traceable. It transpired during investigation that Mahesh accused was in contact with Rajesh accused. But both of them were absconding from their house. According to the Inspector, accused Rajesh Chodhary had told Sh. Kamal Kishore Jaitely that he could not come on 02.05.2011 for his job being unwell. Further, according to PW37, location of the mobile of the two accused persons as informed by the operator showed that they were heading Patna via Anand Vihar, Mugal Sarai, etc. Thereupon on 04.05.2011, he instructed Inspector Rajesh to visit Darbhanga in connection with search of the accused persons. On 07.05.2011, Inspector Rajesh and his staff brought both the accused to Delhi from Darbhanga. It is in crossexamination of PW37 Inspector Ravinder Singh that on 03.05.2011, at about 9 am Kamal Kishore Jaitely met him at the police station.
During investigation, PW37 had come to know from Kamal Kishore Jaitely that Rajesh Chaudhary, their driver was on leave for the last 10 days continuously due to burn on his hand. But, on investigation, he found that Rajesh Chaudhary was not available at his jhuggi in the area of Sri Niwas Puri. Although, it transpired that Rajesh Chaudhary was getting his house constructed in village Vasant Pur, Faridabad, yet he was not available at the FIR No. 92/2011 PS Ranjeet Nagar Page 33 of 69 site where the house was under construction. It led to suspicion regarding his involvement.
PW37 Inspector has given mobile phone number of Rajesh Chaudhary accused, that of the juvenile, and those of Ms. Poonam Mehta, Sh. Om Prakash (since deceased), Kamal Kishore Jaitely and Ms. Ambika Jaitely.
It is in the statement of PW19 Kamal Kishore Jaitely that he had told the police that some persons known to his father or family or appeared to have friendly, had gain entry in the house for commission of robbery. Saying so, he had expressed suspicion regarding involvement of their servant Rajesh Chaudhary serving with than as driver for the last 10 years and the Juvenile, who was with them for the last 3 years.
In his crossexamination, he denied to have suspected involvement of his family members in commission of crime and reiterated that he suspected involvement of someone well known.
Location of the accused persons in and around the area of Patel Nagar on 02.05.2011 False plea put forth by accused.
17. Learned Addl. P.P. has referred to the electronic evidence available on record and submitted that prosecution has established presence of the accused in and around the area of Patel Nagar on the given date and time. In this regard, reference has been made to the statement of PW10 Sh. Israr Babu, Nodal Officer from Vodafone Services Ltd.
FIR No. 92/2011 PS Ranjeet Nagar Page 34 of 69
PW10 has proved that Rajesh Chaudhary, accused herein was allotted mobile no.8860235416 on 28.09.2010. He has also proved CDRs in respect of this mobile phone for the period from 01.05.2011 to 03.05.2011. In his cross examination, PW10 Sh. Israr Babu was questioned only about location chart and the witness stated that only from location chart approximate location of concerned mobile phone can be pointed out. It is true that prosecution has not proved location chart in respect of the aforesaid mobile phone number in the name of Rajesh Chaudhary, accused, but there were other two mobile phone connection bearing no.9650668051 and 9650668042 in the name of Rajesh Chaudhary, accused. PW12 Sh. Vishal Gaurav has so deposed.
According to PW12, both these connections were released in the name of Rajesh Chaudhary on 02.07.2010. In this regard, he has proved documents Ex.PW12/A and Ex.PW12/B. Rajesh Chaudhary, accused has not disputed this fact in the cross examination of this witness. PW12 has proved location chart Ex.PW12/G and CDR in respect of both the aforesaid phone numbers, for the period from 01.05.2011 to 06.05.2011. CDRs are Ex.PW12/D and Ex.PW12/E. In his cross examination, PW12 has admitted that as per CDRs neither on 01.05.2011 nor on 02.05.2011, any call was made from mobile phone no.9650668051.
But PW12 was not subjected to any cross examination as regards the CDRs Ex.PW12/D i.e. in respect of mobile phone no.9650668042 or in respect FIR No. 92/2011 PS Ranjeet Nagar Page 35 of 69 of location chart Ex.PW12/G. As per CDR Ex.PW12/D, in respect of mobile phone no.9650668042, as on 02.05.2011, location of this mobile phone was within the range of the Tower no.7522, 23751 and 9811. As per location charge Ex.PW12/G, Tower no.7522 corresponds to West Patel Nagar; Tower no.23751 corresponds to East Patel Nagar and Tower no.9811 corresponds to East Patel Nagar.
Learned Addl. PP has submitted that mobile phone number 8860235416 though allotted to Rajesh Chaudhary accused, was with the juvenile and that both these accused were in contact with each other on 02.05.2011 and that this goes to support the prosecution version regarding involvement of the present two accused and the juvenile in commission of the crime.
As noticed above, mobile phone no. 9650668042 was also in the name of Rajesh Chaudhary accused. CDR of mobile phone no. 8860235416 Ex PW10/C reveals that Rajesh Chaudhary accused was continuously in contact with the person occupying/carrying mobile phone no. 8860235416 on 02.05.2011.
Rajesh Chaudhary, accused has come up with plea that on 02.05.2011, at about 11.30 a.m., Ms. Savina Jaitley W/o Kamal Kishore Jaitley contacted him on his mobile phone from her mobile phone and asked him to reach H.No. 11/14, West Patel Nagar, Delhi as he was to go out of station in connection with his work.
FIR No. 92/2011 PS Ranjeet Nagar Page 36 of 69
Plea of the accused further is that although he initially showed reluctance, ultimately he accompanied by Mahesh Chaudhary accused came to Delhi to contact Ms. Savina Jaitley at her house at 1.30 p.m. but she was not available. Lakhan (Juvenile) told him that Ms. Savina Jaitley was away from the house and as such, he (Rajesh Chaudhary) and his coaccused Mahesh Chaudhary remained in the area upto 4.30 p.m. / 5.00 p.m. In his statement U/s 313 Cr.P.C., accused Mahesh Chaudhary has also come up with the plea that he accompanied Rajesh Chaudhary, coaccused on 02.05.2011 from Roshan Nagar, Faridabad and they reached Patel Nagar, New Delhi. According to accused Mahesh Chaudhary, he accompanied accused Rajesh Chaudhary when the later told him about the phone call from Ms. Sabina Jaitley. He has also pleaded that Rajesh Chaudhary, accused made a phone call, perhaps to Juvenile, and thereafter to Ms. Sabina Jaitley and then told him (Mahesh Chaudhary) that she was not present at the house and they had to wait.
So the defence plea is that after having received phone call from Ms. Sabina Jaitley on 02.05.2011, at 11.30 a.m., both the accused came to Delhi and tried to contact Ms. Savina Jaitley at 1.30 p.m. but at that time she was not available there and as such they remained in the area upto 4.30 p.m. / 5.00 p.m. FIR No. 92/2011 PS Ranjeet Nagar Page 37 of 69 From the aforesaid defence plea, learned Addl. P.P has rightly pointed out that accused persons have admitted their presence in the area i.e. near the place of occurrence after having left Roshan Nagar, Faridabad, at about 11.30 p.m. and that they remained in the area upto 4.30 p.m./5.00 p.m.
18. The contention raised by learned Addl. P.P. is that accused persons have come up with false plea that when Ms. Sabina Jaitley met them, she handed over to them two laptops, one laser beam and Rs.20,000/ in cash as these instruments were to be got serviced, but they have not been able to substantiate this defence plea on record, and this fact is an additional circumstance which connects the accused with the crime.
This Court finds that the accused persons have come up with the aforesaid plea of having been called by Ms. Sabina Jaitley on 02.05.2011 and Rajesh Chaudhary, accused having been delivered three items i.e. two laptops and one laser beam, but they have not been able to substantiate this plea either during cross examination of the concerned witnesses or by leading defence evidence.
Had Ms. Sabina Jaitley delivered any such items to Rajesh Chaudhary, accused for service, she must have been questioned about it in her cross examination. It is case of the prosecution that PW Ms. Sabina Jaitley used to assist her husband at the advertising office, situated in Rajindra Place. In her cross examination, PW20 Ms. Savina Jaitley stated to have left for the office FIR No. 92/2011 PS Ranjeet Nagar Page 38 of 69 on 02.05.2011, at 10.30/11.00 a.m. and to have contacted Rajesh Chaudhary,accused on his mobile phone. According to this witness, at about 12.30 p.m., she contacted him only to inquire if he was coming for his duty, as promised by him. It was nowhere suggested to her in her cross examination that on 02.05.2011, Rajesh Chaudhary, accused accompanied by his brother inlaw Mahesh Chaudhary, accused reached the area of East Patel Nagar and that at that time she handed over to Rajesh Chaudhary, accused two laptops and one laser beam. Accused persons have not stepped into the witness box as their own witness to state about this fact.
Case of the prosecution is that accused Mahesh Chaudhary alone contacted his friend PW21 Satish on 02.05.2011, met him at Okhla Railway Station and handed over to him a bag containing two laptops and a camera like instrument i.e. laser beam.
According to PW21 Satish, accused Mahesh Chaudhary told while delivery him these items belong to his friend and that Mahesh Chaudhary would come next day and collect the same from him. PW21 has also deposed about delivery of these items to the police 45 days thereafter in presence of accused Mahesh Chaudhary and their seizure by police vide memo Ex.PW19/F. Had Ms. Sabina Jaitley delivered the three items to Rajesh Chaudhary, accused for service, this defence plea would have been suggested even to FIR No. 92/2011 PS Ranjeet Nagar Page 39 of 69 PW21 Satish. But a perusal of his cross examination reveals that he was not suggested that at the time Mahesh Chaudhary accused delivered these items to Satish, he told him that those had been given to Rajesh Chaudhary, accused for service and that they would collect the same after some days on return form their village. What was suggested to PW21 in defence is that PW Satish had no acquaintance with Mahesh Chaudhary, and that he did not hand over these three items to him. Moreso, this suggestion put to PW21 is not in consonance with the defence plea put forth by the two accused in their statements U/s 313 Cr.P.C.
From the above discussion, this Court finds that prosecution has established presence of the two accused persons on the given date in the area of Patel Nagar, but the accused persons have come up with false defence plea that Rajesh Chaudhary accused was called by Ms. Sabina Jaitley to her house and that at that time, she handed over to him two laptops and one laser beam and Rs.20,000/ for service for these instruments.
Learned defence counsel has submitted that, since Rajesh Chaudhary, accused was employed as driver, in case of his involvement in the commission of present crime someone from the neighbourhood must have seen him entering the house or coming out after the occurrence, but there is no such evidence on record to suggest so, which creates doubt regarding involvement of Rajesh Chaudhary,accused in commission of the crime. FIR No. 92/2011 PS Ranjeet Nagar Page 40 of 69
It is true that during investigation, no one from the neighbourhood came forward and told the police that anyone of them saw Rajesh Chaudhary and Mahesh Chaudhary, accused entering the house i.e. H.No.11/14, East Patel Nagar or leaving the said house in the evening. Simply because, no one from the neighbourhood happened to witness entry or exit, it cannot be said that no such occurrence took place at the house on the given date and time.
Even otherwise, as is going to be discussed hereinafter, prosecution has led convincing evidence about recovery of the two laptops and laser beam on 07.05.2011 when produced by PW21 Satish in presence of accused Mahesh Chaudhary.
So far as involvement of the juvenile is concerned, PW14 Ms. Poonam Mehta has deposed that on 02.05.2011 after the calls, made by her to her father on the landline phone and mobile phone, went answered, she also contacted her niece Ms. Ambika Jaitely on her mobile phone and she replied that she and her brother Pranav were at the tuition centre and Lakhan was accompany them.
PW20 Sabina Jaitely as stated in her crossexamination that on 02.05.2011 at about 3 3.30 pm she received a call from Lakhan expressing his desire to accompany her kids in the car, at the time they were to go for tuition. She turned down his request on the ground that her fatherinlaw would be alone but the juvenile again called her and insisted to accompany his FIR No. 92/2011 PS Ranjeet Nagar Page 41 of 69 kids telling her that her son (Pranav) was down with fever. Thereupon, she allowed him to accompany kids.
On behalf of the defence, it was suggested to the witness that she had sent the juvenile in the company of her kids at the time they were to go for tuition and without any insistence by the juvenile. The witness denied this suggestion. Accused persons have not led any evidence to suggest that Ms. Sabina Jaitely allowed Lakhan to accompany kids to the tuition centre, so as to show that he was not at all involved in this matter.
In view of the above discussion, this Court finds that prosecution has led cogent evidence as to what led to suspicion against Rajesh Chaudhary and the juvenile accused regarding involvement in commission of crime.
Arrest of Rajesh and Mahesh accused from Darbhanga
19. Case of prosecution is that after the occurrence, both the accused persons were not traceable. According to PW37 Inspector Ravinder Singh, he collected CDRs in respect of mobile phones of Rajesh Chaudhary and Mahesh Chaudhary - suspects which revealed their location on the date of occurrence since noon time, in East Patel Nagar. As further stated by him, on 04.05.2011, he directed PW38 Inspector Rajesh Kumar to visit to visit Darbhanga in connection with search of accused persons.
PW38 PW38 Inspector Rajesh Kumar has deposed regarding his departure FIR No. 92/2011 PS Ranjeet Nagar Page 42 of 69 from Delhi in the company of PW34 SI Vivek Singh and HC Sanjiv Kumar. He has narrated the manner in which his party reached Darbhanga bus terminal after having left Delhi on 04.05.2011 at 11.00 a.m. It is in his statement that at about 10.00/11.00 p.m. they came to know about presence / location of the two accused in the area of Darbhanga bus terminal. So, after having alighted at Patna Airport, they reached Khas Mahal crossing and then Darbhanga Bus Terminal at about 5.00 a.m. but there was no clue regarding presence of the two suspects. Then they conducted local police at L.M.N. University took along SI Ashok and other staff.
The party headed by PW38 then reached Leela Krishna Bhawan, a guest house, near Darbhang Bust Terminal. According to PW27 Sh. Rajesh Kumar Aggarwal owner of the guest house on 04.05.2011, at about 10.00 p.m., accused persons checked in at the said guest house / hotel and got booked one room No.106 vide entry at Sr.no.606 recorded in register. Bill book which contains counter foils of bills from no.1301 to 1400 was seized by the police.
It is in evidence that PW38 Inspector Rajesh Kumar, accompanied PW27 by Rajesh Kumar Aggarwal Manager reached Room No.106 of the guest house. Both accused persons were found present. According to PW38 inquiries from the accused persons and conducted their cursory search as well. Rajesh Chaudhary accused was found in possession of railway ticket, FIR No. 92/2011 PS Ranjeet Nagar Page 43 of 69 mobile, and cash worth Rs.11,500/, ATM card and other items. Same were seized vide memo Ex.PW34/A. Rajesh Chaudahry accused represented that the case was part of the stolen property. The currency notes were seized vide memo Ex.PW34/H. That is how, Rajesh accused was arrested.
Mahesh Chaudhary was found in possession of Rs.5500/. He too disclosed that the cash was part of the stolen property. The currency notes were seized vide memo Ex.PW34/G. He too made disclosure statement. Same is Ex.PW38/B. So, Mahesh accused was also arrested and subjected to personal search vide memo Ex.PW34/D and Ex.PW34/F respectively.
It is in evidence and not dispute by the two accused that both the accused persons were then produced before Chief Judicial Magistrate, Darbhanga and their custody remand was obtained.
According to PW38 Inspector Rajesh Kumar on the same day, he visited Leela Krishna Bhawan - guest house in the company of SI Vivek and seized reception register Ex.PX, bill book Ex.PY, photocopy of license of hotel/ guest house vide memo Ex.PW27/A. As per statement of PW38, On reaching Anand Vihar Railway Station, Delhi both the accused were produced before PW37 Inspector Ravinder Singh, who prepared separate seizure memos in respect of mobile phone Ex.P21 recovered from Rajesh accused and coaccused Mahesh Ex.P22. FIR No. 92/2011 PS Ranjeet Nagar Page 44 of 69
PW37 Prosecution has examined PW27 Sh. Rajesh Kumar Aggarwal, owner of hotel / guest house, Lila Krishna Bhawan, in Bela Garden, Darbhanga, Bihar. He has supported the prosecution version regarding arrest of the two accused from Room No.106 of his guest house / hotel in his presence. Further according to him, police took away the two persons from the said room of the hotel. He has also deposed about seizure of register and bill book entry at Sr.no.606 made in the relevant register is Ex.PW27/B. Bill book is Ex.PY.
PW31 PW31 SI Ashok Kumar was then serving at PS LNM University. He has supported the prosecution version regarding arrest of the accused from Room NO.106 of the aforesaid guest house. It is in his cross examination that on reaching in front of Room No.106, he got the room opened in presence of Manager of the hotel, Inspector Rajesh Kumar and his staff. Belongings of the accused persons were lying in the room.
There is nothing in the statements of PW38, PW34 & PW31 to disbelieve the version regarding arrest of the accused from room no.106 of the aforesaid guest house in the morning of 05.05.2011. Arrest memos and personal search memos of the two accused persons also lend corroboration to the prosecution version in this regard.
FIR No. 92/2011 PS Ranjeet Nagar Page 45 of 69
The accused persons have not disputed their arrest from Darbhanga. They have come up with the version that police apprehended both of them from the area of Darbhanga, took them to guest house, detained them there and in the morning, took them to local police station, but their defence plea does not stand proved from the material available on record. They have not led in defence evidence to substantiate that they were not apprehended from the said accused house.
It is significant to note that PW27 Sh. Rajesh Kumar Aggarwal, who runs the aforesaid guest house / hotel was never suggested that the accused persons did not stay at the said guest house or that they were forcibly made to stay there by Delhi police.
It is true that as per prosecution version on personal search of the accused they were found in possession of cash. Rs.11,000/ and Rs.5500/. But it is a different matter that there is no cogent & convincing evidence to suggest that this cash formed part of the stolen property.
Recovery of Rs.2,80,000/
20. Case of the prosecution is that in pursuance of their disclosure statements, accused persons Rajesh Chaudhary and Mahesh Chaudhary led the police party headed by Inspector Ravinder Singh, HC Mahinder Singh, Kamal Kishore Jaitely and other police staff to house situated in Roshan Nagar, Ganpati Colony, Faridabad.
FIR No. 92/2011 PS Ranjeet Nagar Page 46 of 69
According to PW37 Inspector Ravinder Singh on 07.05.2011, after custody of both the accused was handed over to him by Inspector Rajesh Kumar at Anand Vihar Railway Station, both of them made disclosure statements. According to the witness, Rajesh Chaudhary accused made his disclosure statement first, disclosed therein that he had kept concealed stolen money and a gold ginny at his house in the area of Ganpati Colony and that he could get the same discovered. Besides this, he also disclosed to have kept concealed the clothes, which he and his coaccused Mahesh Chaudhary were at the wearing at the time of commission of crime and offered to get the same discovered from the field near his house. Disclosure statement of Rajesh Chaudhary accused is Ex PW30/B. As per this disclosure statement, same was attested by PW30 HC Mahinder Singh and Ct. Parvinder. According to PW30, it is Mahesh accused who made the disclosure statement first and thereafter, Rajesh Chaudhary accused made disclosure statement. Mahesh Chaudhary accused disclosed to have kept concealed cash worth Rs.2,80,000/ in an almirah lying in a room of his house situated in Ganpati Colony, Faridabad and that he could get the same discovered from there. According to the witness, Rajesh Chaudhary accused offered to get discovered gold ginny which he had kept concealed on the roof of the house of Mahesh Chaudhary. Witness has proved his attestation on disclosure statements Ex PW30/A & B of Mahesh and Rajesh FIR No. 92/2011 PS Ranjeet Nagar Page 47 of 69 accused respectively.
It may be mentioned here that PW37 Inspector Ravinder Singh when questioned in his crossexamination as to where these two accused persons made disclosure statement, stated that on 7.05.2011 on having reached Anand Vihar Railway Station at about 11.30 am he did not conduct any investigation except taking the two accused in his custody, and further that the two accused persons made disclosure statement before him when they reached near Vikas Marg after having left Anand Vihar Railway station. So, according to PW37, disclosure statements were recorded after having left the Anand Vihar Railway Station, when they were near Vikas Marg. This statement of the witness is in contradiction with his version given in chief examination and statement made by PW30.
In chief examination PW30 clearly stated that having obtained the custody of the accused persons, he started interrogating both the accused at Anand Vihar Railway Station and both of them made disclosure statements.
According to PW30 HC Mahinder Singh the disclosure statements were made by the two accused at Anand Vihar Railway Station. Further according to him, these disclosure statements were attested by him and Kamal Kishore Jaitely and Ct. Parvinder.
But disclosure statements Ex PW30/A and Ex PW30/D do not bear attestation of Kamal Kishore Jaitely.
FIR No. 92/2011 PS Ranjeet Nagar Page 48 of 69
When we advert to the statement of PW19 Kamal Kishore Jaitely, he nowhere stated in his chief examination about making of disclosure statement by any of the two accused. According to the witness, on 07.05.2011 police called him to join the investigation in connection with recovery and he met the police at Meethapur crossing. This goes to show that prosecution version regarding making of disclosure statement Ex PW30/A and Ex PW30/B is not free from doubt.
Admittedly, no one from the public was associated at the time of recording of the disclosure statements. It stands so admitted by PW30. PW37 Inspector stated to have asked some passersby to join the party, but they did not join. So, statement of PW30 and PW37 in this regard are in contradiction. It appears that PW37 shifted the place of recording of the statement from Anand Vihar to place near Vikas Marg as he did not join any person from the public at the time of interrogation of accused.
As regards recovery from Ganpati Colony, Roshan Nagar, Faridabad PW37 Inspector Ravinder Singh has stated that both the accused led them to their house. Admittedly, the house situated in the area of ABlock, Roshan Nagar, Ganesh Puri colony is the house of fatherinlaw of Rajesh Chaudhary accused. It has come on record that during the relevant period accused Rajesh Chaudhary was putting up at this very house.
Further according to PW37, on entering the house Rajesh Chaudhary FIR No. 92/2011 PS Ranjeet Nagar Page 49 of 69 accused picked up a key from over an almirah lying in the room and handed over the same to Mahesh Chaudhary. Thereupon, Mahesh Chaudhary accused opened the almirah and took out a polythene containing cash worth Rs.2,80,000/. These currency notes were turned into a parcel, sealed with seal bearing impression RS and seized vide memo Ex PW19/C. Ex PW19/C bears attestation of Kamal Kishore Jaitely and HC Mahinder Singh.
PW30 HC Mahinder Singh, the attesting witness has deposed that both the accused led them to Ganesh Puri Colony and Mahesh accused got recovered from there Rs.2,80,000/ from an almirah lying in one of the rooms of the house. These currency notes were seized vide memo Ex PW19/C. Witness has proved his attestation at point B on Ex. PW19/C. According to this witness, these currency notes were turned into a parcel which was sealed with seal bearing impression RS.
PW19 Kamal Kishore Jaitely, the other attesting witness to the recovery has deposed that on 07.05.2011 he reached Meethapur crossing and met police of PS Ranjeet Nagar. Accompanied by the police, he reached first street of Roshan Nagar, Faridabad where house of father in law of Rajesh Chaudhary accused is situated. Rajesh Chaudhary and Mahesh Chaudhary accused were there. Rajesh Chaudhary picked up key of an almirah, lying in a room of the house of his fatherinlaw and handed over it to Mahesh Chaudhary accused. Mahesh Chaudhary accused then opened an almirah FIR No. 92/2011 PS Ranjeet Nagar Page 50 of 69 and picked up a polythene bag which was found containing currency notes worth Rs.2,80,000/. The witness has also deposed about seizure of the currency notes and proved his attestation on memo.
Accused persons have not claimed this amount of Rs. 2,80,300/. They have denied its recovery at their instance from the said house. PW37 Inspector has admitted in his crossexamination that other houses were situated near house in Roshan Nagar, Faridabad. At the time they reached the said house, wife of Rajesh accused (sister of Mahesh) was found present there. He admitted to have not got attested from the wife any document. As regards nonattestation from persons from the locality, PW37 stated that persons from the locality were asked to join the investigation but they did not come forward.
PW30 HC Mahinder Singh has also admitted that sister of Mahesh Chaudhary was found present at the house but she was not asked to attest the seizure memo. PW19 Kamal Kishore Jaitely could not remember if any person was found present at the house in Roshan Nagar at the time of aforesaid recovery. According to him, the house was lying open at the time of their arrival. But in his crossexamination he specifically stated that it is Rajesh Chaudhary accused who picked up key from the top of the almirah and handed over the same to Mahesh and thereafter the latter opened the almirah.
PW19 has displayed ignorance if police officials called any person from the neighbourhood to join the party at the time of recovery, though according FIR No. 92/2011 PS Ranjeet Nagar Page 51 of 69 to him there were other houses by the side of the said house. In the very next sentence, he admitted that persons from the public had gathered in front of the house.
Learned defence counsel has contended that prosecution version regarding recovery of cash is doubtful, firstly, because key of the almirah in question was not seized and, secondly, there is no corroboration from independent witness.
It is true that prosecution has not led any evidence regarding seizure of key of the almirah, but admittedly, in crossexamination PW37 Inspector Ravinder Singh or PW30 or PW19 were not subjected to cross examination regarding seizure of key. So, they had no opportunity to explain in this regard. Had they been questioned they could depose about the same or furnish explanation regarding nonseizure of key.
It is true that wife of Rajesh, accused, who is sister of Mahesh accused was not asked to be an attesting witness to the recovery of Rs.2,80,300/. In view of the fact that the recovery finds corroboration fro the statement of Kamal Kishore Jaitely an independent witness on material aspects, the prosecution version regarding recovery of this amount cannot be doubted.
Learned Addl. PP has rightly submitted that it is not believable that for false implication of the accused, police would collect such a huge amount from family of the victim and plant the same on the accused. FIR No. 92/2011 PS Ranjeet Nagar Page 52 of 69
Recovery of gold ginny at the instance of Rajesh Chaudhary, accused
21. Case of prosecution is that after the recovery of Rs.2,80,300/ Rajesh Chaudhary, accused led the party headed by Inspector Ravinder Singh to the roof of the same house of his fatherinlaw and got recovered one ginny from the bricks. PW37 Inspector Ravinder Singh has deposed about recovery of gold ginny from the bricks lying on the terrace of the said house, at the instance of Rajesh Chaudhary, accused. He has also deposed regarding seizure of the gold ginny, vide memo Ex.PW19/D after it was turned into a parcel and sealed with his seal bearing impression 'RS'.
Ex.PW19/D bears attestation of PW30 HC Mahender Singh and PW19 Kamal Kishore Jaitley. Both these witnesses have deposed about recovery of gold ginny at the instance of Rajesh Chaudhary, from underneath the bricks lying on the roof of the house.
PW30 HC Mahender Singh has also deposed in line statement of PW19 Kamal Kishore Jaitley and PW39 Inspector Ravinder Singh regarding recovery of gold ginny. The gold ginny was got released on superdari. It is true that PW19 could not produce the ginny, in court. On 13.08.2013, he explained that he was unable to trace out ginny despite efforts and further stated that he shall produce the same as and when the same was traced out. Nonproduction of ginny got released on supperdari does not adversely affect the case of FIR No. 92/2011 PS Ranjeet Nagar Page 53 of 69 prosecution, when its recovery stands duly proved from the statements of the aforesaid three witnesses. Accused persons have not claimed any right in respect of gold ginny. Even otherwise, as is available from the cross examination of PW37, learned defence counsel did not cross examine this witness on the point of recovery of gold ginny. PW30 HC Mahender Singh was not cross examined on the point of recovery of gold ginny at the instance of Rajesh Chaudhary, accused. PW19 was also not subjected to any cross examination on this point.
From the evidence led by the prosecution, it stands proved that Rajesh Chaudhary accused got recovered a gold ginny from the room of the aforesaid house of his fatherinlaw on 07.05.2011, in presence of Kamal Kishore Jaitley, HC Mahender Singh and the party headed by Inspector Ravinder Singh.
Recovery of two shirts at the instance of accused
22. As per prosecution version after recovery of gold ginny from the aforesaid house Rajesh Chaudhary and Mahesh Chaudhary, accused led the party headed by Inspector Ravinder Singh to the nearby fields and got recovered a polythene containing two shirts having stains of blood.
According to PW37, both the accused led them to the fields situated nearby, picked up a polythene containing shirts stating that those were the shirts which they were wearing at the time of commission of crime. Mahesh Chaudhary told that he was wearing Ferozicolour shirt whereas Rajesh FIR No. 92/2011 PS Ranjeet Nagar Page 54 of 69 Chaudhary told that the was wearing the other shirt. He seized both the shirts after having turned them into a parcel, which was sealed with the seal bearing impression 'RS'.
Ex.PW19/E bears attestation of PW30 HC Mahender Singh and PW19 Kamal Kishore Jaitley. According to PW30, after the party came downstairs both the accused led them to the fields situated nearby and got recovered from there one polythene containing two shirts having blood stains. Both these were sealed and seized vide memo Ex.PW19/E. PW19 has also deposed about recovery of two shirts one of white colour with stripes and other of Ferozicolour. These were lying in a polythene with words 'thank you have a nice day' printed on it. The witness has proved his attestation vide memo Ex.PW19/E. It may be mentioned here that in case of this recovery from the fields, IO should have prepared rough site plan so as to establish the place of its recovery. Herein no rough site plan of the place of recovery has been prepared to establish the place of recovery.
Furthermore, although according to PW37 - the Inspector, shirts were recovered from two polythenes, but according to attesting witnesses there was only one polythene. Seizure memo ex.PW19/E also pertains to recovery of one polythene and not two polythenes. According to PW37, he sealed the parcel containing shirts with his seal and handed over the same to PW30 HC FIR No. 92/2011 PS Ranjeet Nagar Page 55 of 69 Mahender but the Head Constable nowhere deposed about delivery of seal to him. PW Kamal Kishore Jaitley has also not deposed on this aspect. As per prosecution version, the two shirts were sent to FSL for analysis were found having stains of human blood of 'B' group.
It is case of prosecution that blood of the deceased was of 'B' group but when the prosecution has failed to rule out possibility by tampering with the case property i.e. the two shirts before the same reached FSL, Rohini, for analysis, it is difficult to say that the two accused persons got these two shirts recovered or that they were wearing the same at the time of commission of crime.
Recovery of two laptops and one laser beam
23. Case of prosecution is that after recovery of two shirts from the fields in the area of Roshan Nagar, Faridabad, both the accused led the party headed by Inspector Ravinder Singh to Sri Niwas Puri and got recovered two laptops and one laser beam i..e part of the stolen property. On this aspect, prosecution has examined, PW37 Inspector Ravinder Singh, PW30 HC Mahinder Singh and PW19 Kamal Kishore Jaitely.
PW37 According to PW37 the Inspector, Mahesh accused led his party to the house of his friend Satish Kumar, in the area of Sri Niwas Puri. Satish Kumar, found present there, produced before them two laptops and one laser beam FIR No. 92/2011 PS Ranjeet Nagar Page 56 of 69 which was in three parts. Satish Kumar told them that these items, were kept by with him by Mahesh accused telling him that he had brought the same from his friend. Mahesh had asked him (Satish) to keep these items as he was in hurry. According to the witness, he seized these items vide memo Ex PW19/F. PW30 PW30 Head Constable has also deposed about recovery of two laptops and a laser beam, when produced by Satish, who was found present at his jhuggi in the area of Sri Niwas puri. According to the witness, both the accused had led them to the said jhuggi and on reaching there Mahesh pointed out towards Satish, who in turn produced these items, which were seized vide memo Ex PW19/F. Ex PW19/F bears attestation of HC Mahinder Singh. From this memo dated 07.05.2011, it stands recorded that one laptop of compaq and other of dell and one beam laser were seized by the Inspector in presence of the two witnesses by Satish Kumar.
PW19 PW19Kamal Jaitely and other witness to the recovery has also deposed about recovery of the aforesaid three items on their production by Satish Kumar who was found present at his clinic in a private colony in the area of Sri Niwas Puri Delhi. According to the witness, Satish told them that these items were given to him by Mahesh on the night of 02.05.2011. The witness has FIR No. 92/2011 PS Ranjeet Nagar Page 57 of 69 proved his attestation at point A on seizure memo Ex PW19/F. PW21 Prosecution has also examined PW21 Satish to prove recovery of the aforesaid three items. According to PW21, on 02.05.2011, at about 7 8 pm, Mahesh Chaudhary accused called him twice on his phone and asked him to reach Okhla Railway Station. Both the times, he refused. But, when Mahesh called him for the third time, he reached Okhla Railway Station and found him present there. Mahesh handed over to him a bag containing two laptops and one laser beam.
PW21 has proved his attestation on seizure memo Ex PW19/F. There is nothing in the statements of aforesaid four PWs to disbelieve the version narrated by them.
As noticed above, accused persons have admitted delivery of the aforesaid items to PW Satish on 02.05.2011. It was for them to establish that Sabina Jaitely had delivered these three items to Rajesh. Accused, for service. They have failed to prove this fact. PW20 Sabina Jaitely was nowhere suggested that she had delivered these three itmes to Rajesh Chaudhary on 02.05.2011, for service. PW 21 Satish was also nowhere suggested that Mahesh had delivered these items to him for service.
It may be mentioned here that in their statements under Section 313 CrPC, Rajesh accused has pleaded that as suggested by Mahesh he handed FIR No. 92/2011 PS Ranjeet Nagar Page 58 of 69 over to Satish (friend of Mahesh) two laptops and laser beam for safe custody but as per plea put forth by Mahesh in his statement under Section 313 CrPC, he took Rajesh to Sri Niwas Puri and it is Rajesh who delivered these three items to his friend Satish. So, the defence plea put forth by the two accused is selfcontradictory.
This Court finds that prosecution has established, beyond doubt, recovery of the two laptops and a laser beam on 07.05.2011 on their production by Satish PW21, to whom the same had been delivered by Mahesh accused in the evening of 02.05.2011.
Recovery of knife, rope and ladies purse
24. As per version of prosecution, on 08.05.2011, during interrogation, accused Rajesh Chaudhary and Mahesh Chaudhary made disclosure statements. In h is disclosure statement, Rajesh Chaudhary, accused is stated to have kept concealed stolen jewellery in an almirah lying at the house of victim same being share of the juvenile.
According to PW37 Inspector Ravinder Singh, Rajesh Chaudhary, accused also disclosed to have thrown away stolen ladies bag containing rope used in strangulating Om Parkash in a pond near Awana Market, Srinivaspuri and that he could get same discovered from there. According to PW37, disclosure statement made by Rajesh Chaudhary accused is Ex.PW37/C. Further according to PW37, accused Mahesh Chaudhary also made FIR No. 92/2011 PS Ranjeet Nagar Page 59 of 69 disclosure statement before him and offered to get recovered the weapon of offence i.e. knife from the drain by the side of bus stop Sriniwas Puri. He also disclosed to have kept stolen property with someone known to him in Patna and offered to get the same discovered. Disclosure statement of accused Mahesh Chaudhary is Ex.PW37/D. These disclosure statements Ex.PW37/C & Ex.PW37/D purport to have been attested by PW30 HC Mahender and HC Pavinder Singh, but PW30 has nowhere deposed about making of any such disclosure statement. So there is no corroboration to the statement of PW37 Inspector Ravinder Singh that Rajesh Chaudhary and Mahesh Chaudhary, accused made disclosure statement Ex.PW37/C and Ex.PW37/D before him.
This document purports to have been prepared by PW35 Inspector Ravinder Singh but the Inspector produced both the accused before Inspector Gurdev Singh for the purpose of recovery in pursuance thereof.
According to PW35 Inspector Gurdev Singh, on 08.05.2011, he accompanied by other staff, namely, Ct. Kamla Parsad, Ct. Sat Parkash and Kamal Kishore Jaitley and both the accused reached bus stand of Sriniwas Puri. On reaching there, from a vacant space by the side of the bus stand, accused Mahesh Chaudhary got recovered one knife. The blade of the knife was found stained with blood. He prepared its rough sketch Ex.PW19/H, turned the knife into a parcel, sealed it with seal bearing impression 'GS' and FIR No. 92/2011 PS Ranjeet Nagar Page 60 of 69 seized the same, vide memo Ex.PW19/G. So far as recovery of knife at the instance of Mahesh Chaudhary, accused is concerned, according to PW35 - Inspector Gurdev Singh, Ex.PW19/G i.e. the seizure memo purports to have been attested by Kamal Kishore Jaitley,Ct. Kamla Parsad, PW33 Ct. Satya Parkash. Ex.PW19/H the rough sketch also purports to have been attested by aforesaid three witnesses.
In his cross examination, PW35 Inspector Gurdev Singh stated to have left the police station on 08.05.2011, at 10.00 a.m., reached Sriniwas Puri at 11.00 a.m. According to him, one or two passengers were found present at the bus stand but they could not join on arrival of bus. Since Kamal Kishore Jaitley, son of the victim was already with the party, nonjoining of any person from the bus stand cannot be said to have adversely affected the case of prosecution.
But a perusal of record would reveal that Inspector Gurdev Singh did not prepare any rough site plan of the place of recovery. There is no explanation for nonpreparation of rough site plan of the place of recovery. Generally, in such like cases, rough site plan of the place of recovery of the incriminating material is prepared, so as to pin point the place of recovery and corroborate the version. Herein, nonpreparation of the rough site plan of the place of recovery adversely affects the case of prosecution. FIR No. 92/2011 PS Ranjeet Nagar Page 61 of 69
PW32 PW32 Ct. Kamla Parsad has also deposed about recovery of knife from the grass near the bus stand, in the area of Sriniwas Puri, at the instance of Mahesh Chaudhary accused on 08.05.2011. According to the witness, knife was having stains of blood. He has proved his attestation at point C on seizure memo Ex.PW19/G. Although according to PW35 & PW32, the knife was turned into parcel and sealed with the seal bearing impression 'GS', there is nothing in their statements as to whom the seal was handed over by the Inspector Gurdev Singh after its use in sealing the parcel.
PW33 PW33 Ct. Satya Parkash, another witness to the recovery of the knife at the instance of Mahesh Chaudhary, accused, has also nowhere stated about delivery of seal by the Inspector to anyone else. PW19 Kamal Kishore Jaitley, still another witness to the recovery of knife has also deposed about the recovery and further that the knife got recovered was in broken condition, without handle, but having stains of blood. But, he too has nowhere stated about delivery of seal by Inspector Gurdev Singh to any member of the party. Actually, he has not stated even about sealing of the parcel.
In view of the above discussion, this Court finds that prosecution has failed to rule out possibility of tampering with case property i.e. the knife. FIR No. 92/2011 PS Ranjeet Nagar Page 62 of 69 Consequently, no reliance can be placed on the report Ex.PY received from FSL. Even otherwise, undisputedly, blood group of the stains of blood observed on the knife could not be determined, as is available from the report.
According to PW9 Dr. B.N. Mishra, on 14.06.2011, Inspector Ravinder Singh submitted an application and two sealed parcels lying sealed with the seal of "GS", to have his opinion regarding consistency of injuries observed on the dead body of Om Parkash with the weapon contained in the parcel. On opening one of the sealed parcels, blade of a knife was taken out. On examination of the knife, he opined that injuries mentioned at point - 2 i.e. injury on the anterior aspect of the neck could be inflicted with this weapon. He further opined that possibility of knife getting broken, in the course of its use, cannot be ruled out.
As discussed above, prosecution has not been able to rule out possibility of tampering with the parcel containing kinfe Ex.P11, the opinion given by doctor regarding use of knife in causing injuries on the person of Om Parkash, does not help the prosecution to hold that th is very knife was used in commission of the crime.
As noticed above, accused Rajesh Chaudhary made disclosure statement before PW37, but as discussed above, prosecution has not been able to lead any evidence in corroboration to statement of PW37 about making of disclosure statement by Rajesh Chaudhary, accused. FIR No. 92/2011 PS Ranjeet Nagar Page 63 of 69
According to PW35 Inspector Gurdev Singh, after the recovery of knife was made at the instance of Mahesh Chaudhary, accused, both the accused led the police party to the area of Awana Market, District Faridabad, Haryana and from the woods and bricks lying by the side of a pond in that area, Rajesh Chaudhary accused picked up one ladies bag of black colour. It was found containing one 5 ft. long rope of badami colour and having stains of blood. According to the witness, he turned the bag and the rope into a parcel sealed it with the seal bearing impression 'GS' and seized the same vide seizure memo Ex.PW19/J. Ex.PW19/J purports to have been attested by PW19 Kamal Kishore Jaitley, PW32 Ct. Kamla Parsad and PW33 Ct. Satya Parkash. According to PW35 Inspector Gurdev Singh, after having used the seal in sealing the parcel, he handed over the seal to Ct. Kamla Parsad. PW32 although initially displayed ignorance as to whom the seal was handed over, but again said that it was handed over to him Record reveals that no rough site plan of the place of recovery of bag and rope was prepared. There is no explanation in this regard. Furthermore, in this regard, no electronic evidence was collected by the IO to suggest presence of Rajesh Chaudhary accused in the area of Awana Market, so as to prove that it is he who had visited the area and thrown the bag containing rope, so as to strengthen case of prosecution in this regard. Therefore, FIR No. 92/2011 PS Ranjeet Nagar Page 64 of 69 prosecution has failed to establish beyond doubt recovery of bag and rope at the instance of Rajesh accused.
It it true that PW9 Dr. B.N. Mishra has given his opinion also regarding use of rope in strangulation of Om Parkash but when prosecution has not been able to establish beyond doubt recovery of rope and the bag at the instance of Rajesh Chaudhary accused, it is difficult to say that this very rope was used in strangulating Om Parkash.
Recovery of stolen property at the instance of the juvenile
25. Case of the prosecution is that on 09.05.2011, Inspector Ravinder Singh reached the house of Kamal Kishore Jaitely, where Lakhan (juvenile) was found present there. He was inquired and apprehended, got medically examined and ultimately produced before Juvenile Justice Board.
On 09.05.2011 safe custody of the juvenile was obtained by Inspector Ravinder Singh. The juvenile then provided information and in pursuance thereof got discovered two gold chains and three gold rings from the almirah lying in the balcony of the house of Kamal Kishore Jaitely. These were turned into parcel, that was sealed and seized.
According to PW37 Inspector Ravinder Singh, the juvenile led his party to the balcony of H. No. 11/14, East Patel Nagar, New Delhi and from an almirah lying there he got recovered two gold chains and three gold rings, wrapped in a piece of newspaper. These were sealed and seized vide memo FIR No. 92/2011 PS Ranjeet Nagar Page 65 of 69 Ex PW37/F. At the time, juvenile was apprehended, he was found in possession of on mobile phone no. 8860235416 vide memo, copy Ex PW37/G. As noticed above, mobile phone no. 9650668042 was also in the name of Rajesh Chaudhary accused. CDR of mobile phone no. 8860235416 Ex PW10/C reveals that Rajesh Chaudhary accused was continuously in contact with the person occupying/carrying mobile phone no. 8860235416 on 02.05.2011. All this evidence goes to show that the three i.e. the juvenile and the present two accused were in regular contact with each other and their involvement in the present occurrence.
Conclusion
26. In view of the above findings, this Court finds that prosecution has established location of the accused persons, as on the date of occurrence i.e. 02.05.2011 in the area of Patel Nagar i.e. where the place of occurrence is situated; that on that date, the two accused persons were in regular contact with the juvenile; that both the accused persons were absconding; that both of them were apprehended while they were staying at the guest house in the area of Darbhanga, Bihar; recovery of Rs.2,80,000/ i.e. stolen property from their house situated in Roshan Nagar, Faridabad and that accused failed to explain possession of the cash; recovery of gold ginny i.e part of the stolen property from the same house; delivery of stolen property i.e. two laptops and FIR No. 92/2011 PS Ranjeet Nagar Page 66 of 69 one laser beam i.e. part of the stolen property, to PW Satish, friend of Mahesh accused on the evening of the occurrence and recoveries of these items at the instance of Mahesh accused. The circumstances established are consistent only with the hypothesis of the guilt of the accused and totally inconsistent with their innocence.
Accordingly, this Court holds that on 02.05.2011, both the accused persons, in prosecution of their criminal conspiracy, did commit murder of Sh. Om Prakash Sharma while committing robbery at his house at the time he was present there alone. Both the accused are accordingly held guilty of the offence under Section 120B IPC, 394 read with Section 120B IPC and 302 read with Section 34 IPC and convicted thereunder.
27. Be put up on 02.12.2014 to hear the convicts on the point of sentence.
Announced in Open Court
on 29.11.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No. 92/2011 PS Ranjeet Nagar Page 67 of 69
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.38/11
FIR No.92/11
PS Ranjit Nagar
In the matter of:
State
Versus
1. Rajesh Chaudhary,
2. Mahesh Chaudhary .......Convicts
ORDER ON SENTENCE
02.12.2014
Present: Sh. Rakesh Mehta, Addl. P.P. for State.
Both convicts in JC, with counsel Sh. R. K. Gaur.
Heard on the point of sentence.
Convicts and their learned counsel have prayed for leniency on the point of sentence.
It stands established that on 02.05.2011, both the convicts in prosecution of their criminal conspiracy, did commit murder of Sh. Om Prakash Sharma, aged about 87 years, while committing robbery at his house at the time he was present there alone. Rajesh Chaudhary accused was one of the servants, the other servant being the juvenile. Herein, greed eclipsed faithfulness and wisdom, and as a result, the faith reposed by the master and the other family members in the servant stands FIR No. 92/2011 PS Ranjeet Nagar Page 68 of 69 shattered.
Having regard to all the facts and circumstances, the offences proved against the convicts, the convicts are hereby sentenced as under: Name of Offences Under Section Rigorous Fine (Rs.) Simple convicts Imprisonment Imprisonment in default of fine
1. Rajesh 1. 120B IPC, 5 years 10,000/ 2 months Chaudhary
2. 394 r/w Sec.120B IPC 5 years 10,000/ 2 months
3. 302 r/w Sec. 34 IPC Imprisonment 40,000/ 6 months for Life
2. Mahesh 1. 120B IPC, 5 years 10,000/ 2 months Chaudhary
2. 394 r/w Sec.120B IPC 5 years 10,000/ 2 months
3. 302 r/w Sec. 34 IPC Imprisonment 40,000/ 6 months for Life All the substantive sentences of imprisonment shall run concurrently. The period of detention already undergone by the convicts during investigation, inquiry and trial to be set off against the period of sentence. Case property i.e. the knife, shirts, rope and purse be destroyed in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 02.12.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No. 92/2011 PS Ranjeet Nagar Page 69 of 69