Delhi District Court
State vs 1) Ashish Aggarwal @ Goldy on 19 March, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0304922010
Session Case No. 19/2011
State Versus 1) Ashish Aggarwal @ Goldy
S/o. Sh. Radhey Shyam Aggarwal
R/o. A-7, Steel City, Raipur,
Chattisgarh.
Present address: A-2, Daya Nand Colony
Lajpat Nagar-IV, New Delhi.
2) Rahul @ Vijay Kumar @ Gaurav
S/o. Sh. Harish Chander,
R/o. 13/76, Geeta Colony,
Delhi-31.
3) Rohit @ Rajiv Mehra
S/o. Sh. Prem Prakash
R/o. B-13, Mukhram Garden,
Tilak Nagar, New Delhi-18.
4) Rohit Rana
S/o. Sh. Jitender Singh Rana
R/o. 152, DA Flat, Neemdi Colony,
Ashok Vihar, Phase-IV, Delhi-52.
5) Mehtab Ali @ Chand Bhai
S/o. Sh. Kasim Ali,
R/o. H. No. 1934, Gali Chunnamal,
Turkman Gate, Delhi-110002.
6) Ravi Dass @ Rax
S/o. Late Sh. Shankar Dass,
Presently at: R/o. A-20, Gali No.5,
Dayalpur Extn., Delhi-94.
Permanent Resident of:
Sh. Govind Singh
State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 1/44
Ward No.51, House No. 15/25,
Raipur, Chattisgarh.
7) Mohd. Imran @ Aahat
S/o. Sh. Mohd. Irfan
R/o. 1141, Haveli Sadar Sudur,
Matia Mahal, Jama Masjid,
Delhi-06.
FIR No. : 624/2006
U/s: 302/34 IPC
PS: Connaught Place
Date of institution of the case : 10.07.2007
Date when the case reserved for judgment : 12.03.2015
Date of announcement of judgment : 19.03.2015
JUDGMENT
1. All the above mentioned seven accused persons are facing trial in this Court for offences punishable under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC) for committing the murder of Sagar Arora.
2. The case of the prosecution as emanating from the police report under Section 273 (2) of the Code of Criminal Procedure (herein after referred to as the Cr.P.C.) is that Sagar Arora (the deceased) used to frequently visit Bangla Sahib Gurdwara, Connaught Place, New Delhi as he was of a religious bent of mind. He came across the seven accused persons at that Gurudwara and gradually became friendly with them. However after a few days he came to know that the accused persons were involved in illegal activities. Sagar Arora also came to know that they indulged in "galat kaam" (unnatural sex) amongst State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 2/44 themselves and used to film their acts in a compact disk (CD). The accused persons pressurized Sagar Arora to indulge in similar acts but he refused and started maintaining a distance from them.
3. Accused Ashish Aggarwal @ Goldy, Rohit @ Rajiv, Rahul, Rohit Rana and Ravi Dass @ Rax started pressurizing Sagar Arora and threatened him that they would kill him if he discontinued his association with them. Rahul and Rohit Rana also threatened to kill him. Accused Mohd. Imran @ Aahat and Ravi Dass @ Rax threatened Sagar Arora that they would forcefully get an objectionable CD of his prepared and get him defamed if he did not join them in their acts. Ashish Aggarwal @ Goldy threatened Sagar Arora that he would be killed if he made any complaint against them. Sagar Arora got frightened due to such threats but did not give in to their designs and for this reason the accused persons harboured a grudge against him.
4. As per the prosecution at 8:30pm on 13.11.2006 all the accused persons ran into Sagar Arora at Mc Donalds Restaurant, Inner Circle Connaught Place and Ashish Aggarwal @ Goldy, Rahul and Rohit Rana asked him to sit and talk with them and they tried to persuade him to forget about the past. They assured him that they would no longer ask him to join them in their activities. Sagar Arora sat with the accused persons and talked with them for sometime after which accused Rohit Rana and Rahul proposed that they drink beer at that moment of happiness. Sagar Arora refused but Ashish Aggarwal @ Goldy, Rohit and Ravi Dass @ Rax forcibly made him to drink beer due to which he became intoxicated. Thereafter, all the accused persons took Sagar Arora to an empty building, which was known as Skipper Buliding, State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 3/44 Barakhamba Road New Delhi. Sagar Arora tried to flee from the accused persons but Ashish Aggarwal @ Goldy, Ravi Dass @ Rax and Mohd. Imran @ Aahat restrained him physically and all of them started beating him with kicks and punches. Sagar Arora tried to raise an alarm but Rohit gagged his mouth and Ashish Aggarwal @ Goldy and Ravi Dass @ Rax held his hands and legs. Mehtab Ali and Ashish Aggarwal and the other accused persons kept on beating Sagar Arora. Rahul and Rohit Rana beat Sagar Arora several times with an iron rod. Mehtab Ali @ Chand Bhai and Ravi Dass @ Rax snatched his gold necklace, ring and Rs.2,000/- from Sagar Arora which was in his pocket. Subsequently all the accused persons picked up Sagar Arora and threw him in the pit of the shaft of the lift due to which he suffered injuries and fell unconscious.
5. As per the prosecution, Pappu Singh (not examined as a witness) and Bhim Singh (PW8) were working with M/s Bombay Intelligence Security Company Ltd. and were posted at Skipper House Building, Barakhamba Road as Security Guards. The shift of Pappu Singh from 10pm to 6am and he was on duty in the intervening night of 13/ 14.11.2006 and Bhim Singh (PW8) was on duty on 14.11.2006 since 6am. When PW8 came to the premises at about 7:30-8am in the morning of 14.11.2006, he and Pappu Singh heard the cries of some person emanating from the shaft of the lift. Both gave information about the same to the officers of their Company and to the police.
6. DD No. 4A dated 14.11.2006 Ex.PW31/A was recorded by ASI Anita Sharma, PW31, Duty Officer, PS Connaught Place on the basis of a PCR call received at about 8:56am by the wireless operator State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 4/44 of PS Connaught Place as per which one person was stuck in the lift of NDMC Building who was crying. PW31 handed over copy of DD No. 4A to SI Bhupesh Kumar (PW30 and IO of the case) who proceeded to the spot for inquiry.
7. PW30 SI Bhupesh Kumar reached NDMC Building, Barakhamba Road along with Ct Mahinder (PW14). By that time Mukesh Verma Station Officer Delhi Fire Service (PW2), Rajinder Saini Ambulance Officer CATS (PW5), Vazeer Alam Khan, Ambulance Officer LBS Hospital Delhi (PW24) and HC Durga Prasad PCR Victor-21 (PW4) had already reached the place of occurrence having received information of the same. Sagar Arora was found lying in the pit of the shaft of the lift of the semi constructed building described as Skipper House Building, Barakhamba Road, Connaught Place. The pit in which Sagar Arora was found lying was about twenty five feet below the ground level and he was found to be in injured condition with injuries on his head, face, legs, hands, backbone and eyes and he was semiconscious. Sagar Arora was taken out from the shaft of the lift and taken to RML Hospital by PW5 in the CATS Ambulance.
8. At RML Hospital Sagar Arora was examined by Dr. Meenu Chaudhary, Medical Officer (PW7) who prepared her Medico Legal Case Sheet vide MLC Ex.PW6/A. He was found unfit for statement. Information about Sagar Arora was given to his father Ramesh Arora (PW1) by the IO who reached RML Hospital.
9. The IO inspected the place of the incident, i.e. the pit of the shaft of the lift and found one mobile phone handset make Nokia State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 5/44 3315 bearing IMEI No. 350103107602672 screen of which was damaged with one Airtel SIM Card no. 8991100602060855719 which were seized vide seizure memo Ex.PW14/A. The IO also found one wrist watch make Stylan Quartz in working condition, one silver coloured chain and one black coloured leather shoe which were also seized vide memo Ex.PW14/B. Personal search of Sagar Arora was carried out in RML Hospital by Ct Subhash who found Rs.60/- which was handed over to the IO who seized the same vide memo Ex.PW30/A.
10. On 17.11.2006, the IO recorded the statement Ex.PW1/A of Ramesh Arora (PW1 and father of Sagar Arora) on the basis of which the FIR was registered on 17.11.2006 under Section 308 of the IPC. In his complaint, PW1 stated that his son Sagar Arora used to frequently visit the said Gurudwara and on 13.11.2006 at about 5:30pm he left home after telling his mother that he would come back by about 11pm. He stated that despite waiting till late at night, his son did not come home and his mobile phone was found to be switched off. When Sagar Arora did not come home till the morning, PW1 started looking for the phone numbers of friends of his son and in the day time on 14.11.2006, he received a phone call from SI Bhupesh Kumar that his son was hospitalized in RML Hospital. Upon receipt of this information, he went to RML Hospital and found his son to be unconscious. He further stated that after making inquiries at his own level he came to know that on 13.11.2006 at about 8-9pm his son had gone to Mc Donalds Restaurant Connaught Place with his friends Ashish Aggarwal @ Goldy, Rohit Rana and Max and he suspected that some persons had beaten up his son and thrown him in the shaft of the lift of the empty building on State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 6/44 Barakhamba Road.
11. During the course of investigation, the IO PW30 prepared a site plan Ex.PW30/C and tried to record the statement of Sagar Arora but he was declared unfit for giving the statement on 14.11.2006, 15.11.2006, 17.11.2006, 18.11.2006, 19.11.2006, 20.11.2006, 22.11.2006, 24.11.2006, 25.11.2006, 27.11.2006, 28.11.2006, 29.11.2006 (as reflected in the MLC Ex.PW7/A).
12. On 05.12.2006 the Dr. S.N. Gole of RML Hospital declared Sagar Arora fit for recording of his statement and the IO PW30 approached Sagar Arora for this purpose who stated that he was not feeling well and requested the IO that his statement be recorded when he was feeling better. On 17.12.2006 Sagar Arora was discharged from RML Hospital and he was thereafter admitted to Sushruta Trauma Centre, ISBT for treatment of injuries on his backbone. The IO PW30 tried to record his statement in the said hospital but no statement could be recorded as Sagar Arora had undergone an operation in his back.
13. As per the prosecution during further course of investigation, on 04.01.2007 the IO PW30 received a typed complaint in Hindi under the signatures of Sagar Arora dated 28.12.2006 Ex.PW1/DB in the police station which was marked by the SHO PS Connaught Place to the IO for necessary action. The said typed complaint is reproduced in English text as under:-
"Seva mai Shriman Thanadhyaksh Mahoday, Thana Connaught Place, New Delhi.
State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 7/44 Vishay:- Shikayat Virudh 1. Goldy, 2. Aahat, 3. Rohit,
4. Rax, 5, Chand, 6. Ashish Aggarwal, 7. Rahul, 8. Rohit Rana avem unke anya sathiyo dwara prarthi ko blackmail karne, yatnaye dene aur unka kahana na manane par prarthi ko gambhir va khatarnak chotey pahuchakar katilana hamla karne tatha lootpat karne ke sambandh me shikayatpatra.
Mahodaya ji, Mai Sagar putra Shri Ramesh Kumar Niwasi R-41 G, Dilshad Garden, Delhi ka nyay pasand dharmik pravarti ka vyakti hu. Mai aksar Connaught Place Gurudwara me jaata tha aur uprokt Goldy, Aahat, Rohit, Rax, Chand, ,Ashish Aggarwal, Rahul va Rohit Rana bhi Gurudwara me aate the. Dheere dheere inn logo se meri dosti ho gai. Magar kuch dino baad mujhe pata chala ki ye log gairkanuni dhandhe karte hai. To maine inse apani duriya badhani shuru kar di. Iss par Goldy, Rohit, Rahul, Rohit Rana aur Rax ne mujh par dabav banana shuru kar diya aur kaha ki agar humse dosti khatam karega to hum tujhe jaan se maar denge. Rahul va Rohit Rana ne bhi dosti khatm karne par jaan se maarne ki dhamki di. Itana hi nahi, ye log ek dusre ke saath galat kaam bhi karte the aur uski CD bana lete the. Inn logo ne mujhe bhi galat kaam karne ke liye kai baar uksaya magar maine inaki baat nahi mani. Iss par Aahat va Rax ne kaha teri jabardasti gandi CD banakar tere ghar bhej denge aur tujhe badnam kar denge varna humare kaale dhandho me shamil ho ja. Ukta Ashish Aggarwal ne kaha ki agar kahi hum logo ki shikayat karne ki koshish ki to tujhe jaan se maar denge. Inn logo ki dhamki se mai darr gaya magar inke kaale dhandho me fir bhi shamil nahi hua. Iss sabse ukta sabhi log mujse ranjish manane lage. Dinank 13.11.2006 ko raat karib 8.30 baje, ukta sabhi log Connaught Place ke Inner Circle me Mac- Donald ke saamne mil gaye, jaha ukta sabhi logo ne mujhe rok liya aur Ashish Aggarwal, Rahul va Rohit Rana ne kaha ki aao baith kar baate karte hai aur purane gile-shikve dur karte hai aur abb hamare beech koi galat va kale dhandhe karne ki baat nahi karega aur na hi koi galat kaam karne ke liye ek dusre ko uksayega. Mai inn sabhi logo ke saath State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 8/44 vahi park ke kinare baith gaya. Das-panch minute tak baat hoti rahi. Issi beech ukta logo ke 4-5 aur saathi bhi aa gaye, jinhe mai acchi tarah se pehchanta hu. Iske baad Rohi, Rahul va Rohit Rana ne kaha ki chalo iss khushi ke mauke par beer peete hai. Maine saaf mana kar diya magar fir bhi Goldy, Rohit va Rax ne mujhe jabardasti beer pila di jisase mujhe halka halka nasha hone laga. Isake baad ukta sabhi log mujhe ek khali building me le gaye, jo ki sunsaan padi hui thi. Maine inase chuut kar bhagne ki kosish ki magar kamyab nahi ho saka kyoki mujhe Ashish, Goldy, Rax va Aahat ne pakada hua tha. Ek andheri jagah par le jaakar ukta sabhi logo ne mujhe laat-ghuso se maarna shuru kar diya. Maine shor machaya to Rohit ne mera muh bheench liya aur Goldy va Rax ne mere haath- pair pakad liye. Chand va Ashish Aggarwal tatha unke anya sathi mujhe laat-ghuso se maarte rahe. Rahul va Rohit Rana ne lohe ki rod se mere uppar kai var kiye jisase mujhe kaafi chotte aai. Chand aur Rax ne mere gale ki sone ki chain, haath ki anguthi va jeb me se mera purse bhi nikal liya jisme do hazar rupaye the. Isake baad ukta sabhi logo ne mujhe pakadkar ek kuannuma gahare khadde me fenk diya jisase meri reed ki hadddi bhi tut gai aur mai behosh ho gaya. Agale din subah hone par kisi ko mere karahane ki awaz pahuchi to usane police ko suchit kiya aur police ne mujhe uss kaunnuma gahare khadde se bahar nikalkar aspatal me bharti karaya. Kai dino baad mujhe hosh aaya to ukta Goldy, Ashish Aggarwal, Rahul va Rohit Rana mere pass aspatal me pahuche aur mujhe dhamkaya ki agar iss ghatna ke baare me kisi ka bhi naam police ko bataya to jujhe jaan se maar denge. Ek mahine se bhi adhik aspatal me ilaaj chalne ke baad bhi meri halat abhi chalne-firne layak nahi hui hai. Dinak 17.12.2006 ko Dr. Ram Manohar Lohiya aspatal ke dactaro ne mujhe ghar bhej diya hai aur mujhe salah di hai ki kam se kam ek saal tak bistar par hi pade rahna hoga aur dawaiya leni hogi. Tabhi inn gambhir aur khatarnak chotto se chhutkara mil payega. Ukta log mujhe ghar par bhi aakar jaan se maarne ki dhamki de rahe hai. Vaise to jab police ne mujhe Ram Manohar Lohiya Aspatal me bharti karvaya tha to ek mukadama FIR No. 624/06 dinank 17.11.2006, antargat dhara 308, Thana Connaught Place, darj kar liya State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 9/44 tha magar meri behoshi ke karan usme karyavahi aage nahi badai thi. Abb mai apana bayan dene ki sthithi me hu magar mera bayan darj karke ukta mukadme ki karyavahi aage nahi badai gai hai.
Shriman ji se prarthna hai ki ukta sabhi logo ke khilaf sakht se sakht karyavahi karte hue inhe giraftar kiya jaaye aur inse mera loota hua saara samaan vapis dilwaya jaaye. Inhe sakht se sakht saja bhi dilwai jaye. Mai ukta sabhi logo ko saamne aane par pehchan sakta hu. Mai jaldi isliye bhi chahta hu ki meri chotte kafi gambhir va khatarnak hai, pata nahi meri jindagi inase jeet bhi payegi athva nahi.
Delhi Prarthi
Dinank : 28.12.2006 Sagar Putra Shri Ramesh Kumar
Niwasi-R-41-G,Dilshad Garden,
Delhi.
Pratilipi :- 1. Shriman Police Ayukt Mahodaya, Police Mukhyalay, ITO, New Delhi.
2. Shriman Police Upayukta Mahodaya, Zila Nai Delhi, Thana Parliament Street, Nai Delhi."
14. As per the prosecution, on 04.02.2007 the IO recorded the statement of Sagar Arora under Section 161 of the Cr.P.C. Ex.PW30/D in Sushruta Trauma Centre. The said statement is reproduced as under:-
"Bayan ajane Sagar Arora s/o Sh. Ramesh Arora R/o R- 414, Dilshad Garden, Delhi Age 26 yrs u/s 161 CrPC Bayan kiya ki main pata uprokt par apne mata pita ke sath rahtha hu. Main aksar Conaught Place Gurudwara jata tha. Jo Ashish Agggarwal @ Goldy, Aahat, Rohit @ Rajiv Mehra, Rahul @ Vijay, Rohit Rana, Rex va Chand bhi Gurduwara aatey thai jha par meri unsay mulakat ho gai. Jo hum log aksar Connaught Place mein Central Park mein ikatay hote thai. Jo mujhe bato bato mein pata chala ki yeh sak ladke gay hain. Toh main unse dur rehne laga toh iss par Ashish @ Goldy, Rahul @ Vijay Kumar, Rohit Rana va Rax ne mujh par davab bannana shuru kar dia va State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 10/44 mujhe dhamkate thai. Yeh sabhi ladke apas mein ek dusray ke saath galat kaam kartey thai. Aur CD bhi banate thai. Mujhe bhi galat kaam karne ko boltay thai magar maine inkar kar diya. Mujhe yeh sabhi ladke kehtay thai ki teri galat CD bana kar tere ghar bhej degay. Toh Ashish Aggarwal Goldy ne mujha dhamkaya ki agar yeh batey kisi ko batlai toh tujhe jaan sek khatam kar daigay. Dt 13/11/06 ko raat 8/30 pm par mujhe Ashish Aggarwal @ Goldy, Aahat, Rohit @ Rajiv Mehra, Rahul @ Vijay Kumar, Rohit Rana, Chand va Rex, Connaught Place Mc Donald Restaurant ke pass mil gay. Va Ashish Aggarwal @ Goldy, Rahul @ Vijay va Rohit Rana ne mujhe se kaha ki chalo baat karte hai va puraney gilay shikvay dur kartay hai. Toh main in logo kay saath Central Park kay kinaray baath gaya jo tabhi Rohit @ Rajeev Mehra, Rahul @ Vijay Kumar va Rohit Rana ne kaha ki, chalo isi khushi mein beer petay hai. Mere mana karne par bhi Goldy @ Ashish Aggarwal, Rohit @ Rajiv Mehra va Rax ne mujhe jabardasti beer pila di jis se mujhe halka nasha ho gaya iske baad mujhe saare ladke pakadkar ek khaali Building Barakhamba Road par le gay jo sunsan padi thi tatha mujhe laat ghuso se marna shuru kar diya maine shore machna chaha toh Rohit @ Rajiv Mehra ne mera muh baand kar diya va Goldy @ Ashish Aggarwal va Rex ne meray haath pakar liye. Chand, Rahul @ Vijay, Aahat va Rohit Rana ne mujhe laat ghuso se marna shuru kar diya. Rahul @ Vijay va Rohit Rana ne lohay ki rod se meray upar kai var kiay. Chand va Rex ne meri chain, ghari va rupay 2000 nikal liay va uskay baad mujhe in sabhi ladko ne milkar lift ki shaft jo kafi gehri thi mein phaink dia. Main behosh ho gaya va subah mujhe halka halka hosh aaya toh main jor jor se chillaya toh mujhe police ne bahar nikala va Dr RML Hospital mein bharti kara diya. Jo main Hospital main 20/25 din baad hosh mein aaya tha. Mujhe sar par, aankh par, muh par, paslio mein, haath va pairo par gehri chotay aai thi. Jo meri ridh ki haddi bhi toot gai thi. Ab main bistar par hi padha rahta hu. Iskay baad main Trauma Centre mein bharti ho gaya jahan par bhi mera ilaz chal raha hai. Jab mujhe RML Hospital mein hosh aaya tha toh us waqt Hospital mein Goldy @ Ashish Aggarwal, Rahul @ Vijay Kumar va Rohit Rana aay va State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 11/44 mujhe kaha ki agar police ko kuch bhi hamray baray mein batlaya tho tujhe jaan se maar degay. Pehlay meri tabiyat jayada kharab thi isi wajah se main pehle bayan nahi dey paya tha. Jo Goldy @ Ashish Aggarwal, Rahul @ Vijay, Chand, Rex, Rohit @ Rajiv Mehra, Aahat va Rohit Rana ne mujhe jaan se marne ki niyat se mujhe chotey pahuchai thi. Jo Goldy @ Ashish Aggarwal Ganesh mein rahta hai, Rahul @ Vijay Kumar Uttam Nagar, Chand va Aahat Jama Masjid ki taraf rehtay hai, Rohit @ Rajiv Mehra Tilak Nagar mein va Rohit Rana Ashok Vihar mein rehta hai va Rex ka mujhe pata nahi kahan rehta hai. In sab kay khilaf sakhat karyawahi ki jai. Aaj aap Trauma Centre aay va mera bayan likha joh sun liya thik hai.
SI Bhupesh Kumar PS Connaught Place 4/2/07"
15. As per the prosecution Section 307 IPC was substituted in the FIR in place of Section 308 IPC. The IO issued a notice to the accused Rohit @ Rajeev Mehra who was arrested on 21.02.2007 vide memo Ex.PW18/A and upon interrogation gave a disclosure statement Ex.PW18/C owning up to the allegations made against him. On 21.02.2007, Rohit @ Rajeev Mehra also led the IO to Skipper House Building, Barakhamba Road, Connaught Place and pointed out the shaft of the lift where he along with other accused persons had thrown Sagar Arora after beating him on 13.11.2006 which was recorded in the pointing out memo Ex.PW18/D.
16. As per the prosecution on 07.03.2007, the IO PW30 received secret information about the presence of accused Ashish Aggarwal @ Goldy and Rahul @ Vijay Kumar at Mc Donalds Restaurant B-Block Connaught Place. PW30 along with Ct Adesh Tyagi (PW15) apprehended both the accused persons and interrogated when State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 12/44 they disclosed their involvement in the incident. Ashish Aggarwal @ Goldy and Rahul @ Vijay Kumar were arrested on 07.03.2007 vide arrest memo Ex.PW15/A and Ex.PW15/B respectively and their disclosure statements also recorded vide Ex.PW15/C and Ex.PW15/D respectively. Ashish Aggarwal @ Goldy and Rahul @ Vijay Kumar also led the IO to the Skipper House Building, Barakhamba Road, Connaught Place and pointed out the shaft of the lift where they along with other accused persons had thrown Sagar Arora after beating him on 13.11.2006 which was recorded in the pointing out memos Ex.PW15/ E and Ex.PW15/F respectively. As per the prosecution, the pointing out proceedings in respect of both these accused persons were recorded separately and together.
17. At that stage, the other accused persons Mohd. Imran @ Aahat, Rohit Rana, Ravi Dass @ Rax and Mehtab Ali @ Chand Bhai could not be traced and proceedings under Section 82 of the Cr.P.C. were sought to be initiated. The IO after recording the statements of the witnesses filed a charge-sheet under Sections 307 / 34 IPC against Ashish Aggarwal @ Goldy, Rahul @ Vijay Kumar and Rohit @ Rajiv Mehra.
18. On 12.07.2007 Sagar Arora died in his house at R-41-G, Dilshad Garden, Delhi. Upon receiving information the IO PW30 went to the house of the deceased and prepared the inquest papers Ex.PW30/E mentioning brief facts in Ex.PW30/E1. The body of Sagar Arora was sent to GTB Hospital for postmortem examination and request in this regard was made to the CMO of the said hospital vide Ex.PW30/F. Tarvinder Kumar PW20 (paternal uncle of the deceased) State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 13/44 and PW1 identified the body of the deceased vide memo Ex.PW20/A and Ex.PW30/G respectively. Dr. R.P. Singh, Jr. Resident of UCMS and GTB Hospital conducted the postmortem examination on the body of Sagar Arora and prepared his report no. 810 of 2007 Ex.PW29/A. PW29 opined that the cause of death was shock as a result of septicemia due to multiple bed sores following long standing immobilization as a result of spinal injury.
19. Upon the death of Sagar Arora, Section 302 of the IPC was added to the FIR. On 19.07.2007 SI Mahesh Kumar PW10 upon instructions and briefing of the IO inspected the place of the incident and prepared a scaled site plan of the area Ex.PW10/A. In the meanwhile accused persons Mohd. Imran @ Aahat and Rohit Rana were declared as proclaimed offenders by the Court of Sh. Vikas Dhall, MM on 13.07.2007.
20. HC Rajesh Kumar PW19 was posted in the PO Cell of PS Jama Masjid. He had been contacted by ASI Jai Singh PW21 and HC Ram Niwas PW11 both posted in the PO Cell of PS Connaught Place who made inquiries about the accused Mohd. Imran @ Aahat who was stated to be residing in the area of Jama Masjid. PWs 19, 21 and 11 with the help of a secret informer apprehended Mohd. Imran @ Aahat on 25.07.2007 who was arrested under Section 41 of the Cr.P.C. vide arrest memo Ex.PW19/A and was brought to PS Connaught Place. The IO PW30 interrogated Mohd. Imran @ Aahat who disclosed his involvement in the crime and was arrested on 26.07.2007 by the IO vide memo Ex.PW26/A and his disclosure statement Ex.PW26/C was recorded and on the same day, he also led the IO to Skipper House State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 14/44 Building, Barakhamba Road, Connaught Place and pointed out the shaft of the lift where he along with other accused persons had thrown Sagar Arora after beating him on 13.11.2006 which was recorded in the pointing out memo Ex.PW26/D.
21. Accused Mohd. Imran @ Aahat had disclosed that he could get accused Mehtab Ali @ Chand Bhai apprehended. The IO PW30 on 26.07.2007 itself took the accused Mohd. Imran @ Aahat along with PW21, PW11, Ct Krishan and Ct Naveen to Ashok Vihar as information was received that Mehtab Ali @ Chand Bhai could be found in a shop at that place. Help of a secret informer was also taken. Accused Mehtab Ali @ Chand Bhai was apprehended outside a shop and upon interrogation disclosed his involvement in the offence. Mehtab Ali @ Chand Bhai was arrested vide memo Ex.PW21/A and his disclosure statement recorded vide Ex.PW21/C. He disclosed that he could get the other accused Ravi Dass @ Rax apprehended.
22. On 27.07.2007, the accused Mehtab Ali @ Chand Bhai led the IO along with other police officials to house no. 6-H, B-Type, Aaram Bagh, Paharganj, Delhi where Ravi Dass @ Rax was apprehended and interrogated by the IO in which he also disclosed his involvement in the offence. Accused Ravi Dass @ Rax was arrested vide memo Ex.PW21/D and his disclosure statement recorded vide Ex.PW21/F. Accused Mehtab Ali @ Chand Bhai and Ravi Dass @ Rax thereafter separately led the IO and other police officials to Skipper House Building, Barakhamba Road, Connaught Place and pointed out the shaft of the lift where they along with other accused persons had thrown Sagar Arora after beating him on 13.11.2006 which were recorded in the State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 15/44 pointing out memos Ex.PW21/G and Ex.PW21/H respectively.
23. After recording the statements of the witnesses, the IO filed a supplementary charge-sheet against the accused Ashish Aggarwal @ Goldy, Rahul @ Vijay Kumar, Rohit @ Rajiv Mehra, Mehtab Ali @ Chand Bhai, Ravi Dass @ Rax and Mohd. Imran under Sections 302 / 34 of the IPC.
24. During the course of investigation, the last accused Rohit Rana surrendered before the Court at Patiala House Courts. With the permission of the Court, the IO interrogated him in which he also disclosed that he was instrumental in the crime and was arrested on 26.11.2009 vide arrest memo Ex.PW30/N and his disclosure statement recorded vide Ex.PW30/Q. Police custody of Rohit Rana was obtained and upon further interrogation in the police station, he gave another disclosure statement Ex.PW30/R. Rohit Rana led the IO to Skipper House Building, Barakhamba Road, Connaught Place and pointed out the shaft of the lift where he along with other accused persons had thrown Sagar Arora after beating him on 13.11.2006 which was recorded in the pointing out memo Ex.PW30/S.
25. After completing the investigation qua accused Rohit Rana, the IO filed another supplementary charge-sheet in the Court under Sections 302 / 34 IPC.
26. By order dated 03.05.2008, charges under Sections 302 / 34 IPC were framed against the accused namely Ashish Aggarwal @ Goldy, Rahul @ Vijay Kumar, Rohit @ Rajiv Mehra, Mehtab Ali @ State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 16/44 Chand Bhai, Ravi Dass @ Rax and Mohd. Imran to which they pleaded not guilty and claimed trial. Subsequently by order dated 02.02.2010, charges under Sections 302 / 34 IPC were also framed against accused Rohit Rana to which he pleaded not guilty and claimed trial.
27. The prosecution has examined thirty one witnesses to bring home its charges against the accused persons. The brief description of witnesses examined in the course of the trial tabulated as under:-
WITNESS RELEVANCY PW1 Ramesh Arora He is father of the deceased Sagar Arora, informant of the FIR and has deposed about facts disclosed to him by the deceased.
PW2 Mukesh Verma He is the Station Officer, Delhi Fire Service who had reached Skipper House Building, Barakhamba Road, Connaught Place on 14.11.2006.
PW3 ASI Devender Prasad He is the Duty Officer of PS Connaught Place who registered the FIR on the basis of the rukka sent by SI Bhupesh Kumar.
PW4 HC Durga Prasad He was posted in PCR Post-Victor 21 and reached with his vehicle after receiving a call at Skipper House Building, Barakhamba Road, Connaught Place on 14.11.2006.
PW5 Rajender Saini He is the Ambulance Officer CATS and had received a call from the PCR and reached Skipper House Building, Barakhamba Road, Connaught Place on 14.11.2006.
State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 17/44 PW6 Dr.B.B. Sharma He was posted as Senior Radiologist RML Hospital who had examined Sagar Arora.
PW7 Dr.Meenu Chaudhary She is the Medical Officer RML Hospital who examined Sagar Arora and prepared her MLC.
PW8 Bhim Singh He was a Guard posted Skipper House Building, Barakhamba Road, Connaught Place and had called the police after hearing the cries of Sagar Arora in the morning of 14.11.2006.
PW9 Ms. Lakshmi She is the Record Clerk of RML Hospital who proved the opinion of Dr. S.N. Gole on the MLC of Sagar Arora.
PW10 Sh. Mahesh Kumar He was the Draftsman who prepared a scaled site plan at the instance of IO SI Bhupesh on 19.07.2007.
PW11 Ct. Ram Niwas He was posted in the PO Cell of PS Connaught Place and apprehended accused Mohd. Ahat alongwith ASI Jai Singh and HC Rajesh on 25.07.2007.
PW12 Dr.Subhodh Kr. Gupta He was Incharge of the Neurosurgery Department of DDU Hospital and had conducted an operation on Sagar Arora on 29.01.2007.
PW13 Pawan Singh He is the Nodal Officer of Idea Cellular Ltd. who produced the records of Mobile no. 9891552466.
PW14 HC Mahinder Singh He was posted in PS Connaught Place and had accompanied the IO SI Bhupesh to Skipper House Building, Barakhamba Road, Connaught Place on 14.11.2006.
PW15 Ct Adesh Tyagi He was posted in PS Connaught Place and had accompanied SI Bhupesh Kumar and effected the arrest of accused Ashish Aggarwal and Rahul @ State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 18/44 Vijay Kumar on 07.03.2007.
PW16 Dr. Satyendra Kumar He was the CMO of Sushruta Trauma Centre and proved the handwriting of Dr. Suffal Kumar on the discharge slip of Sagar Arora.
PW17 Manish Kumar Singh He is the Nodal Officer of Tata Tele Services Ltd. who produced the records of Mobile nos. 9210299295 and 9210640198.
PW18 HC Manish He was posted in PS Connaught Place and had accompanied SI Bhupesh Kumar and effected the arrest of accused Rohit @ Rajiv Mehra on 21.02.2007.
PW19 HC Rajesh Kumar He was posted in the PO Cell of PS Jama Masjid and apprehended accused Mohd. Ahat alongwith ASI Jai Singh and Ct Ram Niwas on 25.07.2007.
PW20 Tarvinder Kumar He was a relative of Sagar Arora and identified his dead body.
PW21 ASI Jai Singh He was posted in the PO Cell of PS Connaught Place and apprehended accused Mohd. Ahat alongwith Ct Ram Niwas and HC Rajesh on 25.07.2007.
He also assisted the IO SI Bhupesh Kumar in the apprehension of the accused Mehtab Ali @ Chand Bhai and Ravi @ Rax on 26.07.2007.
PW22 HC Inder Singh He was working as Duty Office in PS Connaught Place and recorded DD No. 8 on 12.07.2007 about the death of Sagar Arora.
PW23 HC Kumar Pal Singh He was posted in PS Connaught Place and had accompanied Banwari Lal to deliver the special report to the Ld. MM and DCP.
PW24 Vazeer Alam Khan He was the Ambulance Officer of LBS State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 19/44 Hospital Delhi and reached Skipper House Building, Barakhamba Road, Connaught Place on 14.11.2006.
PW25 R.K. Singh He is the Nodal Officer of Bharti Aritel Ltd. who produced the records of Mobile no. 9818420414.
PW26 Insp. Ramphal Sharma He was posted as Insp. Investigation in PS Connaught Place and conducted part investigation of the case on 26.07.2007.
PW27ASI Lahari Singh Tomar He was posted in PS Connaught Place and on instructions of the IO, he collected the postmortem report of the deceased from GTB Hospital and handed over the same to the IO.
PW28 HC Surinder Singh He produced the original record of DD No. 13A dated 12.07.2007 regarding recording of information of the death of Sagar Arora.
PW29 Dr. R.P. Singh He was the Junior Resident of UCMS and GTB Hospital, Department of Forensic Sciences and conducted the postmortem of Sagar Arora.
PW30 SI Bhupesh Kumar He is IO of this case.
PW31 ASI Anita Sharma She produced the records of DD No. 4A
dated 14.11.2006.
28. After the prosecution closed its evidence, statements of all the accused persons were recorded under Section 313 of the Cr.P.C. and the incriminating evidence was put to them. All denied that they were involved in the commission of the offence and claimed that they had been falsely implicated. None of the accused persons expressed any desire to lead evidence in defence.
State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 20/44
29. Arguments were addressed by the Ld. Addl. PP for the State as well as the counsel for the accused persons. In addition, written submissions were filed on behalf of the State as well as on behalf of the accused persons. Amongst others, the Ld. Addl. PP for the State had submitted that the statement of Sagar Arora recorded under Section 161 of the Cr.P.C. on 04.02.2007 Ex.PW30/D be treated as his dying declaration under Section 32 (1) of the Indian Evidence Act, 1872. On the other hand, counsel for the accused had submitted that there was no direct evidence which could link any of the accused persons with the alleged offences. They submitted that there is no eye-witness who has seen the deceased Sagar Arora in the company of any of the accused persons at any point of time let alone on 13.11.2006. They submitted that there were suspicious circumstances surrounding the recording of the statement Ex.PW30/D. Even otherwise the same could not be considered to be a dying declaration as it was not recorded at any time which could be said to be under the expectation of death.
30. I have heard the counsel for the parties and have gone through the record of this case. My findings are as under:-
31. Undisputedly, there is no witness in this matter who has seen any of the accused persons in the company of Sagar Arora at any point of time. The case of the prosecution is based on circumstantial evidence. In the case of Sharat Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 and as reiterated in the case of Nanhar & Ors. v. State of Haryana, reported in (2010) 11 SCC 423, the Hon'ble Supreme Court was pleased to lay down that the chain of circumstantial evidence has to be complete in all respects and that State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 21/44 the following conditions must be fulfilled before a case against an accused can be said to be fully established as under:-
(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;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
32. In the opinion of this Court, in the present matter the following circumstances have to be established by the prosecution in order to prove that the accused persons are guilty of the offences for which they have been charged:-
a) That the deceased Sagar Arora was frequently visiting Bangla Sahib Gurudwara and that he used to regularly perform sewa at the said Gurudwara where the accused persons befriended Sagar Arora;
b) That the accused persons were habitually indulging in unnatural sex amongst themselves and used to make CDs of their acts and tried to pressurize the deceased to join them in their activities and threatened him with dire consequences if he refused;
c) That on 13.11.2006 Sagar Arora met the accused State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 22/44 persons at Mc Donalds Restaurant in Connaught Place where he consumed beer with them and after which the accused persons took him forcibly to the deserted Skipper Building at Barakhamba Road, Connaught Place where they beat him with kicks, fists and iron rod and threw him in the shaft of the lift after grabbing his gold necklace, ring and cash amounting to Rs.2,000/-;
d) That the deceased Sagar Arora had given a typed complaint dated 28.12.2006 against the accused persons;
e) That the deceased Sagar Arora had given a dying declaration on 04.02.2007 to the IO giving the cause and circumstances of the transactions which resulted in his death; and
f) That the death of Sagar Arora was caused due to the injuries suffered by him on account of being assaulted by the accused persons on 13.11.2006.
33. I shall now proceed to scrutinize the evidence led by the prosecution in order to ascertain whether the entire chain of circumstances in respect of the allegations against the accused persons have been established. PW1 is the father of the deceased. In his cross- examination conducted on 09.02.2009 on behalf of the accused Rohit @ Rajiv Mehra, he admitted that he did not know that the accused persons were friends of his deceased son prior to the incident. He did not witness the incident. He has not seen any of the accused persons in the company of his son on or prior to the date of the incident i.e. 13.11.2006. In his cross-examination on behalf of the accused Mohd. Imran @ Aahat and Ravi Dass @ Rax, he deposed that his son was visiting the said Gurudwara for the last two years and that he had accompanied his son to the said Gurudwara only once but he could not State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 23/44 remember the date, month or year.
34. SI Bhupesh Kumar PW30 is the IO of the case. In his cross-examination on behalf of the accused Ashish Aggarwal @ Goldy and Rahul @ Vijay conducted on 04.04.2012, he deposed that he could not find any witness who could state that they had seen the accused persons going to Skipper Building or assaulting Sagar Arora. In his cross-examination on 17.05.2012 on behalf of the accused Ravi Dass @ Rax, PW30 deposed that it had not come in his investigation that the accused persons used to visit the said Gurudwara (except the statement of Sagar Arora). He deposed that there was no evidence about the accused persons being involved in other illegal activities. No CDs of the accused persons indulging in unnatural sex were recovered. He further deposed that he had seized the mobile phone instruments of the accused persons but they did not contain any video clippings of any unnatural sex. He could not state whether any person had seen the accused persons outside Mc Donalds Restaurant in Connaught Place. He deposed that Sagar Arora did not disclose to him that the accused persons were carrying liquor. He deposed that he did not find any empty bottle of liquor from the spot. PW30 had also deposed that even though he had collected CDRs of the mobile phone numbers of the accused persons, no calls were made by the said numbers to the mobile phone of Sagar Arora, either by the accused persons or by Sagar Arora to each other.
35. There is no evidence that Sagar Arora used to frequent Bangla Sahib Gurudwara or that he was befriended by the accused persons at that place. There is no evidence that the accused persons State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 24/44 used to indulge in unnatural sex amongst themselves and filmed their acts in CDs. There is no evidence that the accused persons met Sagar Arora at Mc Donald's Restaurant in Connaught Place in the evening of 13.11.2006, made him consume beer and took him to Skipper Building and threw him in the shaft of the lift after assaulting him (apart from the statement of Sagar Arora). There is no person who has seen Sagar Arora in the company of any of the accused persons at any point of time let alone on 13.11.2006.
36. As per the prosecution Sagar Arora had given a typed complaint in Hindi dated 28.12.2006 Ex.PW1/DB to the SHO PS Connaught Place which was received on 04.01.2006. The SHO PS Connaught Place has not been examined as a witness. The IO PW30 had deposed in his examination in chief that the said complaint was marked to him by the SHO PS Connaught Place. In his cross- examination conducted on 04.04.2012 on behalf of the accused Ashish Aggarwal @ Goldy and Rahul @ Vijay, the IO PW30 has deposed that the said complaint was dated 04.01.2007 whereas the same bears the typed dated of 28.12.2006. He could not say whether Sagar Arora himself came to the police station to lodge the said complaint. He deposed that the said complaint had the signatures of Sagar Arora and that he has verified that fact from Sagar Arora. He could not recollect whether Sagar Arora had referred to his complaint dated 28.12.2006 in his statement dated 04.02.2007 Ex.PW30/D. He further deposed that after receiving the complaint Ex.PW1/DB on 04.01.2007, he had interrogated and recorded the statement of Sagar Arora on 04.02.2007.
37. In his cross-examination on 16.05.2012 conducted on State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 25/44 behalf of the accused Ravi Dass @ Rax, PW30 has deposed that he could not say from whom SHO PS Connaught Place had received the complaint Ex.PW1/DB. He admitted that he himself (PW30) did not receive the said complaint directly. He deposed that the complaint mentioned the diary number of the SHO but he had not placed the copy of the diary number with the charge-sheet. He deposed that he did not cite the SHO as a witness but stated that it was the SHO who prepared the charge-sheet. He admitted that as on 04.01.2007 Sagar Arora was admitted in the hospital and that there was no mention of any doctor or hospital staff on the complaint Ex.PW1/DB. There was no statement of any staff of the hospital that the said complaint was dictated on the instructions of Sagar Arora in their presence. He also admitted that there was no witness regarding the person who had typed the said complaint. He admitted that Sagar Arora had not mentioned about submission of the complaint Ex.PW1/DB in the police station on 04.01.2007 in his statement dated 04.02.2007 Ex.PW30/D.
38. In his cross-examination on 17.05.2012 conducted on behalf of the accused Rohit Rana, PW30 admitted that between 28.12.2006 to 04.01.2007, Sagar Arora was hospitalized. He stated that he had confronted Sagar Arora with the typed complaint Ex.PW1/DB and he disclosed that he had given the said complaint but did not inquire as to from where the said complaint was typed. He denied the suggestion that Sagar Arora had not named Rohit Rana in his complaint Ex.PW1/DB.
39. PW1 Ramesh Arora was examined in chief on 09.02.2009. He has not mentioned anything about the complaint Ex.PW1/DB in the State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 26/44 same. In cross-examination conducted on behalf of the accused Ashish Aggarwal @ Goldy, he deposed as correct that before recording of statement of Sagar Arora, one complaint was sent to the police station. He deposed that he did not remember whether Sagar Arora was in hospital when the said complaint was typed. He deposed that the said complaint was got typed by one of his relatives but he could not remember his name. In his cross-examination on behalf of the accused Rohit @ Rajiv Mehra on 09.02.2009, PW1 identified the signatures of Sagar Arora at point A on Ex.PW1/DB. He further admitted that his son Sagar Arora had told him that the IO had obtained his signatures on some blank papers.
40. In his cross-examination on 18.02.2010 on behalf of the accused Rohit Rana, PW1 deposed that his son Sagar Arora did not have any friend by the name of Rohit Rana. He stated that he knew all the friends of his son but he had never heard the name of Rohit Rana from his son. He deposed that even when admitted in hospital, Sagar Arora did not disclose the name of Rohit Rana to him. He further stated that his son did not disclose the name of Rohit Rana to the IO and that his son had told him and the IO that there were six persons who had caused injuries to him. At that stage of his cross-examination, PW1 deposed that he had seen Rohit Rana for the first time in the Court on that day and that he did not know him. He further admitted that "Even in the written complaint dated 28/12/06 Ex.PW1/DB name of Rohit Rana was not mentioned either by my son or by me to the investigating officer. The said complaint was got prepared by one of my relative whose name I do not remember, in which the name of Rohit Rana was not mentioned by my son or by me".
State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 27/44
41. The question which arises is whether the complaint dated 28.12.2006 Ex.PW1/DB is reliable or not?
42. The SHO PS Connaught Place who is stated to have received the said complaint on 04.01.2007 has not been examined as a witness. The document Ex.PW1/DB bears an endorsement at point A1 on the left hand corner of its first page as per which the same was marked by the SHO to PW30 on 04.01.2007. The said document consists of four typed pages. I have gone through the said document but I have not been able to find any diary number on the same. There is no evidence of the fact as to who submitted the said document in PS Connaught Place. Admittedly w.e.f. 28.12.2006 to 04.01.2007 Sagar Arora was hospitalized. Although the said document is stated to bear the signature of Sagar Arora at point A, as identified by his father PW1, there is no investigation carried out to have the said signature of Sagar Arora to be verified and compared with any of his admitted signatures. PW1 has stated that the said complaint was got typed by one of his relatives whose name he could not recollect. The IO has not made any attempt to trace the person who typed the said complaint. PW1 deposed that Sagar Arora had told him that the IO had obtained his signatures on blank papers.
43. There are seven accused persons in this case namely Ashish Aggarwal @ Goldy, Rahul @ Vijay Kumar, Rohit @ Rajiv Mehra, Mehtab Ali @ Chand Bhai, Ravi Dass @ Rax, Rohit Rana and Mohd. Imran. The complaint Ex.PW1/DB has been reproduced above. As per the same, the complaint has been made against eight named persons State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 28/44 and their associates. The relevant portion of the said complaint is reproduced as under:-
"Vishay:- Shikayat Virudh 1. Goldy, 2. Aahat, 3. Rohit,
4. Rax, 5, Chand, 6. Ashish Aggarwal, 7. Rahul, 8. Rohit Rana avem unke anya sathiyo dwara prarthi ko blackmail karne, yatnaye dene aur unka kahana na manane par prarthi ko gambhir va khatarnak chotey pahuchakar katilana hamla karne tatha lootpat karne ke sambandh me shikayatpatra."
44. Although as per the prosecution, Ashish Aggarwal is also as Goldy, the compliant Ex.PW1/DB describes Goldy and Ashish Aggarwal as two separate persons. Further, this complaint mentions the name of Rohit Rana but PW1 in cross-examination deposed that his son Sagar Arora did not have any friend by the name of Rohit Rana and that his son had not disclosed the name of Rohit Rana either to him or to the IO.
45. PW30 IO has deposed that he had confronted Sagar Arora in respect of the complaint Ex.PW1/DB while recording his statement on 04.02.2007. I have gone through the statement dated 04.02.2007 Ex.PW30/D (which has also been reproduced above). I am unable to find any mention about the complaint Ex.PW1/DB in the statement Ex.PW30/D.
46. In these circumstances, the document / complaint Ex.PW1/DB is not at all reliable in order to form the basis of prosecution of the accused persons in respect of the charges framed against them.
47. This brings us to the dying declaration of Sagar Arora State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 29/44 Ex.PW30/D. The contents of the same have been reproduced above. Before proceeding further, one will have to examine whether the statement dated 04.02.2007 Ex.PW30/D of Sagar Arora can be considered to be a dying declaration for the purposes of Section 32 (1) of the Indian Evidence Act or not.
48. In the case of Mukeshbhai Gopalbhai Barot v. State of Gujarat, reported in (2010) 12 SCC 224, the Hon'ble Supreme Court was pleased to hold that a statement of a person recorded under Section 161 of the Cr.P.C. would be treated as a dying declaration after his death. The relevant portion of the said judgment is as under:-
"16. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations Ex.44 and 48 could not be taken as evidence in view of the provisions of Section 161 and 162 of the Cr.P.C. when read cumulatively. These findings are, however, erroneous. Sub-Section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who is dead. The provision reads as under:
"Sec.32. Cases in which statements of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount o delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
When it relates to cause of death. - (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 30/44
question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
We see that the aforesaid dying declarations are relevant in view of the above provision. Even otherwise, Section 161 and 162 of the Cr.P.C. admittedly provide for a restrictive use of the statements recorded during the course of the investigation but sub-Section (2) of Section 162 deals with a situation where the maker of the statement dies and reads as under:
"(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act."
17. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex.44 and 48 had no evidentiary value, therefore, is erroneous. In this view of the matter, the first dying declaration made to the Magistrate on 14th September 1993 would, in fact, be the first information report in this case."
(emphasis supplied)
49. In view of the law laid down in the case Mukeshbhai Gopalbhai Barot v. State of Gujarat (supra), the statement Ex.PW30/D will have to be treated as the dying declaration of Sagar Arora.
50. At this stage I may note that it had been argued by the counsel for the accused persons that the statement Ex.PW30/D was State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 31/44 recorded on 4.2.2007 whereas the death of Sagar Arora took place much later on 12.7.2007, and the said statement not having been recorded under the expectancy of death, could not be considered to be a dying declaration.
51. Section 32 (1) of the Evidence Act Act provides that statements, written or verbal, of relevant facts made by a person who is dead are themselves relevant facts when the statement is made by a person as to the cause or any of the circumstances of the transaction which resulted in his death whether the person who made them was or was not, at the time when they were made, under expectation of death. Section 32 (1) of the Act itself provides that such a statement need not be made under expectation of death. Hence the submission of the counsel for the accused that Ex.PW30/D cannot be considered to be a dying declaration is rejected.
52. Whether the said dying declaration can be relied upon to prove the charges against the accused persons is another question which will be dealt with at a later part of my judgment.
53. PW1 Ramesh Arora, father of the deceased deposed in his examination in chief that on 13.11.2006 at about 5.30pm Sagar Arora left his house after informing his mother that he would return by 11pm. When he failed to come back he and his wife made calls on his mobile phone but in vain. He deposed that his son usually went to Gurudwara Bangla Sahib on Saturdays and thought that he may have gone there. He deposed that at about 9am on the next day he received a call from SI Bhupesh Kumar who informed him that his son had met State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 32/44 with an accident and was admitted in RML Hospital. He deposed that later on he came to know his son had been poisoned by his friends who took him to an under construction building, beat him and dumped him in a 25 feet pit of the lift shaft. He deposed that in RML hospital he found his son in serious condition with his ribs and spinal cord broken due to which he was unable to stand. He further deposed that the police met him in the hospital on 14.11.2006 and his statement Ex.PW1/A was recorded on 17.11.2006. PW1 further deposed in his examination in chief that his son remained in hospital for about one month and 25 days and the accused persons used to visit his son in the hospital and extended threats due to which he became scared. He deposed that his son Sagar had told him that the accused persons had injured him and he apprehended that they might kill him. He deposed that that the accused had committed unnatural sex with his son and that they pressured him to submit himself to satisfy the unnatural lust for a Minister who would pay him a sum of Rs.11,000/- per month. When he refused to comply with their demands, the accused persons administered an intoxicant in his tea, put him in a car and took him to a shop of one Aahat, beat him and committed unnatural sex with him. He deposed that one Minister of the state of Uttar Pradesh had joined the accused persons in the act. PW1 further deposed in his examination in chief that PW1 further deposed that his son had named Ashish Aggarwal, Rohit Mehra, Aahat, Chand, Rax, Goldy @ Ashsih who present in the Court but he was unable to identify the accused persons individually by their names. He further deposed that his son had taken with him a watch, a gold chain and Rs.2,000/- cash.
54. A perusal of the examination in chief of PW1 Ramesh State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 33/44 Arora reveals that he has not deposed anything about the recording of the statement of Sagar Arora by the IO on 04.02.2007. In his cross- examination on 09.02.2009 conducted on behalf of the accused Ashish Aggarwal @ Goldy, he deposed that he did not know the reason for delay in recording the statement of Sagar Arora by the police. In his cross-examination on behalf of the accused Rohit @ Rajiv Mehra, he has deposed that he did not know the friends of his son prior to the incident and that he had not witnessed the incident. He further stated that whatever he deposed in Court was what his son Sagar told him. He deposed that the police had recorded the statement of Sagar Arora on two occasions but he could not recall the dates and the first statement of Sagar Arora was recorded by the police in his house. He has also admitted that his son had told him that the IO had obtained his signatures on some blank papers. PW1 has denied that accused Rohit Rana was the friend of his son or that his name was disclosed either by him or his son to the IO.
55. As regard the allegations that the accused persons had threatened Sagar Arora and him in the hospital while Sagar Arora was under treatment, PW1 deposed that he had informed the IO about the threats but he had not lodged any complaint in this regard. He admitted that he did not take any steps regarding the threats other than informing the IO. He further deposed that his son had only given the description of the Minister who had committed unnatural sex upon him but did not given his name. He deposed that he had revealed this fact to the IO verbally but the IO did not pay any heed. He stated that he had not made any complaint against the IO to the senior police officers in this regard. He deposed that none of the accused persons had ever visited State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 34/44 his house. He further admitted that none of the accused persons had threatened Sagar Arora in his presence. He deposed that they threatened him in the presence of his wife and that his wife had revealed this fact to him.
56. I have reproduced the contents of Ex.PW1/DB and Ex.PW30/D. The same do not contain any allegation that the accused persons pressurized Sagar Arora to submit to the unnatural lust of a Minister against payment of Rs.11,000/- per month. The same also does not contain any allegation that the accused persons took him to the shop of Mohd. Imran @ Aahat after administrating some intoxicant in his tea and thereafter committed unnatural sex upon him, in which one Minister of the State of Uttar Pradesh was also involved. These facts deposed by PW1 are not reflected in Ex.PW1/DB and Ex.PW30/D even though PW1 stated that he has reproduced the facts which his son had told him. Even though Ex.PW30/D and Ex.PW1/DB stated that the accused persons had threatened Sagar Arora in the hospital, PW1 in cross-examination admitted that the accused persons never threatened Sagar Arora in his presence. He went on to say that the threats were extended in the presence of his wife who revealed the same to him. He stated that he did not give any complaint in this regard in writing and had not made any complaint to senior police officers against the IO for not having acted on his oral complaints.
57. PW30 IO in cross-examination deposed that the original statement of Sagar Arora recorded under Section 161 of the Cr.P.C. had been sent to the Vernacular Record Keeper. He stated that there was no evidence regarding involvement of any Minister of the State of State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 35/44 Uttar Pradesh in the case. He deposed that he made several efforts to record the statement of Sagar Arora but he was not in a position to give a statement as he was under the treatment of the Sushruta Trauma Centre. He deposed that on 05.12.2006, Sagar Arora was declared fit for recording of his statement but whenever he went for this purpose Sagar Arora was not in a position to give any statement as he was suffering from multiple problems such as high fever, back pain. He admitted that he did not associate any doctor, Sub-Divisional Magistrate or Metropolitan Magistrate for recording of statement of Sagar Arora as there was no such requirement.
58. The question which arises is whether the dying declaration Ex.PW30/D is reliable or not. In the case of Umakant v. State of Chhattisgarh reported in (2014) 7 SCC 405 the Hon'ble Supreme Court was pleased to observe in repect to the law on dying declarations as under:
"22. The legal position about the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Govt. (NCT of Delhi), taking into consideration the earlier judgments of this Court in Paniben v. State of Gujarat and another judgment of this Court in Panneerselvam v. State of T.N. has given certain guidelines while considering a dying declaration: (Atbir case, SCC pp. 8-9, para 22) "(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 36/44
merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
59. Further in the case of State of Rajasthan v. Shravan Ram reported in (2013) 12 SCC 255 the Hon'ble Supreme was pleased to hold as under:-
12. We may now examine whether the statement of PW 3 Prem Chand recorded under Section 161 CrPC, marked as Ext. P-6 could be accepted as a dying declaration, wherein it was stated by him that the deceased was raising a hue and cry and was abusing her father-in-law for ablazing her. PW 3 was declared hostile. Further, PW 4 and PW 5, the neighbours, who have stated to have seen the deceased in a burning state and raising a hue and cry, neither disclosed the cause of death nor mentioned the names of any of the accused persons. Consequently, the dying declaration made by Prem Chand remained uncorroborated. It is trite law that it is unsafe to base reliance on the statement made under Section 161 CrPC as a dying declaration without any corroboration. Although corroboration as such is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of the declaration.
State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 37/44 This Court in Arvind Singh v. State of Bihar while dealing with the case of oral dying declaration stated as follows:
(SCC p. 408) "Dying declarations shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence."
(emphasis supplied)
60. From the ratio laid down in the above mentioned cases relating to the probative value of a dying declaration, it is apparent that there is no format prescribed under law regarding the manner in which a dying declaration is to be recorded. There is no mandatory requirement under the law that the dying declaration is to be recorded in a question and answer form, to be recorded by a Magistrate, to be witnessed by some person, to be recorded in the handwriting of the deceased or to be signed by him. The satisfaction about the reliability of the manner in which a dying declaration is recorded will depend on the facts and circumstances of each case. There is no universal rule that a dying declaration can or cannot form the sole basis or material on which conviction of an accused can be based. There is no mandate under law that a dying declaration can be acted upon only after corroboration by other supporting pieces of evidence. Whether a dying declaration requires corroboration from other material will also depend on the facts and circumstances of each case.
61. In the case of State of Rajasthan v. Shravan Ram (supra), State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 38/44 the Hon'ble Supreme Court was of the view that it would be unsafe to base reliance on a statement under Section 161 of the Cr.P.C. as a dying declaration without any corroboration. It was held that although corroboration was not essential but it would be expedient to have the same to strengthen the evidentiary value of such dying declaration.
62. I have already referred to the complaint Ex.PW1/DB dated 28.12.2006 and stated to have been received by the SHO of PS Connaught Place on 04.01.2007. The same has been found to be not reliable for the reasons already recorded above. The contents of Ex.PW1/DB and the dying declaration Ex.PW30/D dated 04.02.2007 have been reproduced above. Both appear to be strikingly similar to each other in respect to their contents. As per the IO, he recorded Ex.PW30/D on 04.02.2007 and while doing so he confronted Sagar Arora with his earlier complaint Ex.PW1/DB. However Ex.PW30/D does not mention anything about any earlier complaint having been given by Sagar Arora. PW1 in his cross-examination had repeatedly stated that Sagar Arora did not have any friend by the name of Rohit Rana and that neither he nor his son had disclosed the name of Rohit Rana to the IO. However Ex.PW30/D has repeatedly mentioned the name of Rohit Rana in the same. Further even though Ex.PW30/D and Ex.PW1/DB had stated that the accused persons had threatened Sagar Arora in the hospital, the cross-examination of PW1 in this regard is shaky.
63. As on 04.02.2007, Sagar Arora was stated to be hospitalized in Sushruta Trauma Centre. There is no witness who has seen the IO recording the said statement. This statement does not contain any allegation that any of the accused persons along with a State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 39/44 Minister of State of Uttar Pradesh had committed unnatural sex with the deceased in the shop of Mohd. Imran @ Aahat but PW1 father of the deceased has deposed these facts in his examination in chief which as per him was based on the facts revealed to him by his deceased son.
64. In the case of State of Rajasthan v. Shravan Ram (supra), the Hon'ble Supreme Court was of the view that it would be unsafe to base reliance on a statement under Section 161 of the Cr.P.C. as a dying declaration without any corroboration. In the present case the dying declaration Ex.PW30/D is a statement recorded under Section 161 of the Cr.P.C. In the facts and circumstances of this case as recorded above, I am of the opinion that it would not be safe to base reliance on the dying declaration Ex.PW30/D without any corroboration.
65. As regards corroboration to the dying declaration, I have already found that there is no person or witness who has ever seen any of the accused persons in the company of the deceased Sagar Arora at any point of time. There is no eye-witness to corroborate the dying declaration of the deceased. The version of PW1 Ramesh Arora is as per what the deceased told him. His evidence is not direct but is hearsay. There is no other circumstantial evidence which can remotely connect any of the accused persons with the commission of the offence.
66. As per the charge-sheet, all the accused persons at the time of their arrest and interrogation had disclosed their involvement in the offence. Their individual disclosure statements were recorded. They also led the police to the place of the incident and pointed out the same which were recorded in pointing out memos. Rohit @ Rajeev Mehra State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 40/44 was arrested on 21.02.2007 and his disclosure statement Ex.PW18/C and pointing out memo Ex.PW18/D are dated 21.2.2007. Ashish Aggarwal @ Goldy and Rahul @ Vijay Kumar were arrested on 07.03.2007 and their disclosure statements Ex.PW15/C and Ex.PW15/D respectively and pointing out memos Ex.PW15/ E and Ex.PW15/F respectively are dated 7.3.2007. Mohd. Imran @ Aahat was arrested on 25.07.2007 and his disclosure statement Ex.PW26/C pointing out memo Ex.PW26/D are dated 25.7.2007. On 26.07.2007 Mehtab Ali @ Chand Bhai was arrested and his disclosure statement Ex.PW21/C is dated 26.6.2007. On 27.07.2007 Ravi Dass @ Rax was arrested and his disclosure statement Ex.PW21/F was recorded on the same day. On 27.07.2007 Mehtab Ali @ Chand Bhai and Ravi Dass @ also recorded their pointing out memos Ex.PW21/G and Ex.PW21/H respectively.
67. As far as the disclosure statements of the accused persons are concerned, they are inadmissible in evidence by virtue of the provisions of Section 25 of the Indian Evidence Act which provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 27 of the Act would have rendered information received from any of the accused given in their disclosure statements admissible, provided any fact was deposed to have been discovered as a consequence of such information. In the present case there is none as no fact has been deposed to have been discovered in consequence of the disclosure statements of the accused persons.
68. As regards the pointing out memos, it is to be noted that State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 41/44 the IO already had knowledge of the said place as firstly he had rescued the deceased from place of the incident in the morning of 14.11.2006, secondly he had received the complaint Ex.PW1/DB on 04.01.2007 and thirdly he had recorded the statement Ex.PW30/D on 04.02.2007. However all the accused persons were apprehended subsequent to 4.2.2007 and their disclosure statements and pointing out memos are much later than 04.02.2007. When the IO already had knowledge about the place of the incident, it cannot be said that he had discovered the place of the incident as a consequence of information given to him by any of the accused persons after their apprehension. Hence even the pointing out memos of the accused persons are rendered inadmissible in evidence.
69. As far as the death of Sagar Arora is concerned, the MLC Ex.PW7/A records alleged history of the patient being found unconscious in the said building. His right eye was not opening, he could not stand and was unable to speak. There were bruises on right eye lid with swelling, abrasion on abdomen, bruises on right arm, clean lacerated wound on right eyebrow and head injury. He was not fit for statement till 05.12.2006. As per Ex.PW12/A and as deposed by PW12 Dr. Subodh Kumar Gupta, Sagar Arora remained hospitalized in DDU Hospital Neurosurgery Department w.e.f. 22.01.2007 to 07.02.2007 when he was discharged. He was brought as a case of paraplegia with cord depression at D-8 level. He was operated upon by PW12 on 29.01.2007 and surgery was effected by decompression of the cord and fixation by using pedical screw and pedical rods. Ex.PW12/A Discharge Summary records that he was also suffering from bed sores, was unable to move his lower limbs and had faecal incontinence. Regular State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 42/44 dressing as well as bowel / bladder care was advised.
70. Ex.PW1/D1 (colly.) are certain medical records of Sagar Arora from GTB Hospital, Lok Nayak Hospital and RML Hospital. The same reveals that on 16.03.2007, Sagar Arora was taken to GTB Hospital for bed sores caused by traumatic paraplegia. He was operated upon for this condition. He constantly received treatment for the injuries and condition caused due to the assault upon him.
71. The postmortem examination of Sagar Arora was conducted by PW29 Dr. R.P. Singh who has opined that the cause of death was due to shock as a result of septicemia caused due to multiple bed sores which had occurred due to his long immobilization caused by spinal injuries. I have already referred to the findings in the report Ex.PW29/A. As per the medical evidence on record, Sagar Arora had received grievous injuries as a result of the assault on him and fall into the pit of the shaft of the lift in Skipper Building. He remained under treatment for a long period of time in hospital as well as at home. Due to being immobilized and restricted to his bed for a long time he developed bed sores which became infected. The infection spread and caused septicemia leading to his death. The death of Sagar Arora is therefore directly attributable to the assault and injuries suffered by him.
72. However there is no evidence in this case to link any of the accused persons with the assault on Sagar Arora. The complaint Ex.PW1/DB is totally unreliable. The dying declaration Ex.PW30/D cannot be acted upon without corroboration. Hence, in these facts and circumstances there is only only conclusion which can be reached at State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 43/44 the end of this trial i.e. the prosecution has been unable to prove the charges made against the accused persons. They are acquitted of the charges framed against them under Sections 302 / 34 of the IPC. However in compliance of Section 437A of the IPC, the bail bonds furnished by the accused persons shall remain in force for a period of six months from today.
73. File be consigned to record room.
Announced in the open court (REETESH SINGH)
on 19th March, 2015 ASJ-02/FTC, PHC/NDD
19.03.2015
State vs. Vs Ashish Aggarwal @ Goldy & Anrs.
FIR No. 624/06, PS: Connaught Place 44/44