Delhi District Court
State vs . : 1) Yadvender Kadyan @ Vicky on 24 August, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No:455/17
FIR No. :265/17
U/s :302/364/365/201/392/397/411/212/120B/34 IPC
P.S. : Narela
State Vs. : 1) Yadvender Kadyan @ Vicky
@ Moxx
S/o Sh. Sukhbir Kadyan
R/o H.No.1359, Village Shiva,
Distt. Panipat, Haryana
2) Mohit
S/o Sh. Rajender Pal
R/o H.No.399, Ward No.21,
Gandhi Nagar, Gohana,
Sonepat, Haryana.
3) Sagar @ Sarkar @ Langra
S/o Sh. Sulesh
R/o Village Khubdu,
PS:Gannaur, Distt.Sonepat,
Haryana.
4) Amit @ Uttam
S/o Sh. Bhagwan Dass
R/o H.No.138, Ward No.16,
Gohana, PS: Gannaur, District
Sonepat, Haryana
Offence complained of : 302/364/365/201/392/397/
411/212/120B/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
State Vs. Yadvender etc. SC NO:455/17 1
Date of committal : 01.08.2017
Date of Judgment : 24.08.2018
JUDGMENT
1. On 31.03.17, an information was received that on the Chinayak Road leading towards Bawana, a person is lying unconscious. DD No. 11-A was recorded at PS Narela on this information. SI Parmod along with Ct. Hemraj reached the spot. They found that opposite Shivam Garden on Bawana road, dead body of a male was lying by the side of the road. One liquor bottle was also found lying near the body. The body was later on identified as of Sanjay. In the postmortem, the doctor opined the injury over the head as homicidal in nature. During investigation, SI Parmod received zero FIR no. 0004/17, dated 01.04.17 under Section 302/364/3654/201/34 IPC, PS Sadar Gurugram, Haryana, recorded on the complaint of Smt. Rajan Devi.
2. In the complaint, Smt. Rajan Devi had mentioned that her son Sanjay was working as a driver on vehicle no. HR55AA 4231, Honda Amaze owned by Kiran Kumar and taken on lease by Ola company. On 31.03.17 at 00.00.30 hours, her son had gone to drive vehicle to take passenger from Shanti Marg, Gurugram for Delhi. The booking was State Vs. Yadvender etc. SC NO:455/17 2 made by person known as Moxx from mobile number 9205127677. Her son dropped the passenger at Bakoli near Alipur and also informed Ola company. The same person again booked the vehicle from Bakoli to Narela. Her son lifted that person from Bakoli and thereafter, no information was received. On inquiry at their level, they found that car is found in abandoned condition near village Garhi Ujale Khan about 300 meters from St. Oxford School. On 01.04.17, she came to know that her son is murdered and body thrown in Narela. She suspected that murder of her son is committed by Kavita, whose taxi her son used to drive earlier and Sumit son of Kavita, who is lodged in jail, threatened her son about three days back on phone from phone number 9708775364. Three days before the death of her son, Pardeep and Pintu Yadav who are their neighbour and having commercial relations with Kavita also threatened that they would not allow him (Sanjay) to see Saturday.
3. During investigation, the booking details and location chart of vehicle no. HR55AA 4231 was collected. According to the chart, on 31.03.17 at 1.24 am. Sanjay lifted one person Moxx from Shanti Nagar, Gurugram, having mobile no. 9205127677 and dropped him at 3.04 a.m. at Bakoli. After sometime thereof, same person again booked the cab from Bakoli to Narela and Sanjay was asked to attend the same. State Vs. Yadvender etc. SC NO:455/17 3
4. FIR No. 265/17 was registered in Delhi. The call detail record of mobile number 9205127677 were analyzed. It was found that maximum talks took place on mobile numbers 9467506799 owned by Sombir and mobile number 8685009372 owned by Mohit. Statement of Sombir was recorded. Thereafter, all the accused were arrested. During investigation, Sagar got recovered the screw driver used in the commission of offence. From the car also finger prints were lifted which tallied with the finger print of Sagar. They had also pointed out the place where they burnt their blood stained clothes and also the place where they thrown the body and the place where they got down in Bakoli. Mohit also got recovered wallet containing documents of deceased.
5. After completion of investigation, charge sheet against accused persons was filed. Ld. MM after complying with the provisions of Section 208 Cr.P.C., committed the case to the Sessions Court as the offence punishable under Section 302 IPC is exclusively triable by the Sessions Court.
6. Accused Yadvender, Mohit and Sagar were charged for the offence punishable under Section 120B, 364/120B, 392, 302/120B, 201/120B IPC. Sagar was charged for the offence punishable under Section 218 IPC. They all pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
State Vs. Yadvender etc. SC NO:455/17 4
7. Dr. N.K. Gunjan was examined as PW-1. On 02.04.2017 he conducted post mortem on the body of Sanjay S/o Sh. Dalbir Singh. He opined that the cause of death in this case is the cranio cerebral injury as a blunt force trauma to the head. Nature and pattern of injuries were consistent with the findings of assault. Time since death cannot be opined accurately due to preservation of dead body in the cold chamber. After post mortem the clothes, blood sample on gauze piece, viscera in saturated solution of common salt and blood in sodium fluoride for chemical analysis were preserved. Sealed with the seal of NKG FMT BJRM HOSPITAL and handed over to the police along with the sample seal. He proved the post mortem report as Ex.PW1/A.
8. During cross-examination by the defence counsel for accused Amit he deposed while going through his report. He does not remember if IO was present in the room when he conducted the post mortem. He admitted that brief facts were told to him. He admitted that there was supporting staff with him at the time of post mortem. He denied the suggestion that he did not conduct the post mortem or that he mechanically signed the report. No question was put to the witness on behalf of other accused persons.
9. Ct. Naveen was examined as PW-2. He deposed that State Vs. Yadvender etc. SC NO:455/17 5 on 02.06.2017 on the call of Inspector Jarnail Singh he reached PS: Narela. From there he along with Inspector Jarnail Singh and SI Parmod reached opposite Shivam Garden, Vishal Bagh, Narela Bawana Road Delhi. He took the measurements and prepared rough notes at the instance of SI Parmod. Thereafter, he returned to his office.
10. On 05.06.2017 he prepared the scaled site plan Ex.PW2/A.
11. During cross-examination on behalf of accused persons. He denied the suggestion that he did not visit the place of incident or that he prepared the site plan while sitting in the office at the instance of IO.
12. Another Ct. Naveen having No.1679/RD member of the Mobile Crime team was examined as PW-3. He deposed that on 15.04.2017 he along with SHO PS: Narela went to PS Gohana Sadar Sonepat. He inspected vehicle No. HR 55AA 4321 for chance prints and lifted two chance prints from the centre mirror and two from the left side back window. He used the black powder for developing the chance prints and lifted the same with the help of tape. He sent the chance prints to Finger Prints Bureau, Kamla Market.
13. During cross-examination on behalf of accused Sagar he stated that they reached PS: Sadar Gohana at 9:00 pm in private vehicle. SHO came to their office in the car and from State Vs. Yadvender etc. SC NO:455/17 6 there they went to PS: Sadar Gohana. They left Delhi at 5:00 pm. The vehicle was found parked in the compound of police station. There were blood stains on both rear windows of the vehicle. He did not take any photograph of the car. He did not make any arrival entry in PS: Gohana. He denied the suggestion that he did not visit PS: Gohana or did not lift the chance prints.
14. Ct. Vikas was examined as PW-4. On 01.06.2017 he collected one sealed box and 16 other sealed parcels from MHC(M) vide RC No.114/21/17 and 118/21/17 for depositing the same at FSL. He deposited the parcels and the box in the FSL and obtained the acknowledgements. Thereafter, he returned to the police station and handed over acknowledgements to the MHC(M). No one tampered with the case property till it remained in his possession.
15. During cross-examination by the defence counsels he stated that he does not remember if he signed in the register No.19. He deposited the case property in FSL against sl.no.1403 and 1420.
16. HC Arvind was examined as PW-5. He deposed that on 31.03.2017 he was member of the mobile crime team Rohini District. He along with Incharge SI Aakash Deep, SI Manish finger prints expert HC Manoj finger prints proficient reached Narela Bawana road opposite Shivam Garden. By State Vs. Yadvender etc. SC NO:455/17 7 the side of the road one dead body was lying. SI Parmod and other staff met them there. He took 8 photographs of the scene of crime. The photographs are Ex.PW5/A1 to A8. The negatives are Ex.PW5/B1 to B8.
17. During cross-examination by the Ld. Counsel for accused Yadvender Kadyan he stated that they left the office at 7:05 am in Govt. Vehicle No. DL 1VA 7845. They reached the spot at 7:35 am. In his presence IO lifted the blood from the spot. The bottle of liquor which is visible in photograph Ex.PW12/A6 was lying at a distance of about 8 to 10 ft from the body. No question was put to the witness on behalf of other accused persons.
18. HC Satish was examined as PW-6. He deposed that on 02.04.2017 he was working as duty officer. At about 2:45 pm SI Parmod Kumar presented a rukka prepared on zero FIR of PS:Gurgaon Sadar for registration of FIR. On the basis of rukka he got fed the contents in the computer. He proved the computer generated copy of FIR as Ex.PW6/A. He made endorsement on the rukka regarding registration of FIR, same is Ex.PW6/B. He handed over the copy of FIR along with rukka to Inspector Rajinder Singh for further investigation. The certificate u/s 65B Evidence Act is proved as Ex.PW6/C. The testimony of the witness has gone unchallenged and uncontroverted.
State Vs. Yadvender etc. SC NO:455/17 8
19. ASI Balwan Singh was examined as PW-7. He was working as MHC(M) in police station Narela. He proved the entries in register No.19 as Ex.PW7/A to Ex.PW7/H. He deposed that on 21.04.2017 he sent car No. HR 55 AA 4231 to FSL for inspection through HC Anjeev vide RC No89/21/17 and proved the copy of the same as Ex.PW7/I. On 01.06.2017 he sent one sealed wooden box along with sample seal to FSL Rohini through Ct. Vikas vide RC No.114/21/17 and proved the photo copy of the same as Ex.PW7/J. Ct. Vikas on the same day returned to the police station and handed over the acknowledgements of FSL and copy of RC to him. The photocopy of acknowledgement is proved as Ex.PW7/K.
20. On 01.06.2017 itself he also sent sixteen sealed parcels to FSL through Ct. Vikas vide RC No.118/21/17. He proved the photocopy of RC as Ex.PW7/L. Ct. Vikas on return to the police station handed over the acknowledgement to him and proved the photocopy of acknowledgement as Ex.PW7/M. He made corresponding entries in register No.19.
21. On 21.04.2017 HC Anjeev after getting the vehicle inspected returned to the police station and deposited the car in the malkhana. He made corresponding entry in the register No.19. Till the case property remained in his possession no State Vs. Yadvender etc. SC NO:455/17 9 one tampered with the case property.
22. During cross-examination for accused Yadvender, Sagar and Mohit he deposed that he did not mention the time in register No.19 when he handed over the exhibits to the police officials for taking the same to FSL. He also did not obtain the signature in register No.19 of the Constables to whom the case property was handed over. He obtained their signatures in register No.21. He handed over the exhibits to the police officials in the presence of IO. He denied the suggestion that entries in register No.19 and 21 are ante dated and ante timed. No question was put to the witness on behalf of accused Amit @ Uttam.
23. HC Palvinder was examined as PW-8. He deposed that on 27.06.2017 he was working as MHC(M) at PS:
Narela. On that day on the instruction of IO he handed over two sealed parcels to ASI Ram Kishan vide RC No.145/21/17 for depositing the same at FSL Rohini. ASI Ram Kishan returned to the police station after depositing the case property with FSL and handed over acknowledgement to him. He proved the copy of RC as Ex.PW8/A and the copy of acknowledgement as Ex.PW8/B. He deposed that no one tampered with the case property till it remained in his possession.
24. During cross-examination on behalf of accused State Vs. Yadvender etc. SC NO:455/17 10 Yadvender, Sagar and Mohit he deposed that he did not mention the time in register No.19 when he handed over the exhibits to the police official for taking to the FSL. He did not obtain signature of ASI Ram Kishan in the register No.19. He denied the suggestion that entries in register No.19 and 21 are ante dated and ante timed.
25. Inspector Dheeraj Singh was examined as PW-9. Accused Yadvender Kadyan @ Vicky @ Moxx were taken out from lockup. He along with SI Adesh Kumar and other staff along with accused left the police station. Accused led them to village Kasandi Distt. Sonepat Haryan on Badhana Road. At the corner of the field near the drain he pointed out the place where he had burnt his blood stained clothes vide pointing out memo Ex.PW9/A. Thereafter accused led them to Saini Pura chowk, Gohana near Daksh Engineering college and pointed out the place where he abandoned the robbed car vide pointing out memo Ex.PW9/B. He correctly identified the accused.
26. During cross-examination for accused Yadvender Kadyan he deposed that the accused was on police custody remand. The distance between the police station and the place where accused took them was about 30 km. It took them 2 hours to reach there. They returned to the police station at about 5 or 6 pm. He made the arrival entry but he State Vs. Yadvender etc. SC NO:455/17 11 does not remember the number of the same. He admitted that no public person was called to join the investigation on 18.05.2017. No remanant of burnt clothes were found at the said place. He denied the suggestion that accused had not pointed out any place. He does not remember if any entry at local police station of PS: Kasandi, Haryana was made or not. No police officials from local police station was joined in the investigation.
27. Ct. Rajeshwari was examined as PW-10. She deposed that on 31.03.2017 she was working in CPCR on extension No.138. On that day at 5:52:48 hrs she received information from mobile No.8860009130 that "ek aadmi behosh pada hai, Vinayak road se Bawana ki taraf". She fed this information in computer and dispatched the same at 5:55:14 hrs. She proved the PCR form as Ex.PW10/A. The testimony of witness has gone unchallenged and uncontroverted.
28. Mohan was examined as PW-11. He deposed that he is dealing in mobile phones and is running the shop under the name and style of Kiran Telecom main Bawana chowk. On 25.03.2017 he sold one SIM of airtel No.;9205127677 to Ms. Manisha who furnished her Aadhar Card.
29. During cross-examination for accused Amit he deposed that he issued the above SIM number via Bio Metric State Vs. Yadvender etc. SC NO:455/17 12 Authentication. He has no record regarding issuance of above said SIM. He sold approximately 25 to 30 SIM's in the month of March 2017. He does not know the names and addresses of the customers. No question was put to the witenss on behalf of other accused persons.
30. Sh. Sombir was examined as PW-12. He deposed that he is working in Honda Company, Manesar as Machine Handler for the last 2 years. He was using mobile phone No.9467506799 of BSNL for the last one year. He got issued the said mobile number from BSNL vide customer application form Ex.PW12/A having his photograph on it at point X. He also gave the copy of election ID card as Ex.PW12/B.
31. He was cross examined by Ld. APP as he was resiling from his earlier statement given to the police. In the cross examination by Ld. APP he admitted that he is residing in Rajiv Colony Gurgaon for the last 1 ½ years in a tented accomodation. He admitted that Neeta daughter of his uncle (Tau Ram Niwas) was married in village Shiva, Distt. Sonepat, Haryana. He denied the suggestion that Mohit resident of Gohana became his friend or that they used to visit their house or that he used to talk on mobile phone of Mohit having number 8685009372. He denied the suggestion that mobile phone number of Mohit is reflected in call detail record of his mobile number. He denied the suggestion that State Vs. Yadvender etc. SC NO:455/17 13 Yadvender @ Vicky was having mobile phone No.9205127677 or that he used to talk with Yadvender on his mobile phone number or that the number of Yadvender is reflected in his call detail record. He denied the suggestion that he told this fact that Mohit and Yadvender were his friends. He was confronted with his statement Ex.PW12/C. He admitted that accused Yadvender @ Vicky is his nephew son of Neeta daughter of Ram Niwas. He denied the suggestion that on 27.03.2017 Mohit s/o Sh. Rajender and his friend Sagar son of Sulesh came to his room or that they stayed in his room for two days. He denied the suggestion that on 29.03.2017 Yadvender S/o Sh. Neeta also visited his house or that Mohit, Sagar and Yadvender were present at his room when he left for performing his duty on 30.03.2017 at about 10:40 pm. He denied the suggestion that on 31.03.2017 at about 7:30 am and he reached his room after performing his duty and his nephew Sushil @ Kuldeep informed him that Vicky, Mohit and Sagar had left the room in the night hours at about 1:30 am. He denied the suggestion that at about 1:00 or 12:30 noon he received telephone call of Mohit from unknown Mobile Number or that Mohit told him to vacate the room as they had killed Taxiwala or that police can come anytime. He was confronted with his statement Ex.PW12/C. He admitted that on 30.03.2017 at about 10:40 State Vs. Yadvender etc. SC NO:455/17 14 pm he went for performing his duty and he reached at 1:00 pm in his village Goodha on 01.04.2017. He identified accused Yadvender present in the court. He stated that he does not know if Yadvender is also known by the name of Moxx. He does not know the father name of accused Yadvender Kadyan or whether Sukhbir Kadyan is father of Yadvender Kadyan. He denied the suggestion that accused Mohit and Sagar are present in the court or that he is deliberately and intentionally not identifying them. He denied the suggestion that Mohit and Sagar visited his room on 27.03.2017 and stayed there for two days. No question was put to the witness on behalf of accused Sagar, Mohit and Amit @ Uttam.
32. During cross examination on behalf of accused Yadvender he stated that police did not record his statement.
33. Ct. Dal Singh was examined as PW-13. He brought the record of the RC No.60 of 15.04.2017 Honda Amaze Car No. HR 55AA 4231 was deposited by HC Anwar vide DD No.12 of 02.04.2017 u/s 102 Cr.PC of PS: Sadar. There were blood stains on the back seat and back driver side window and one danda was also lying in the vehicle. The said vehicle was handed over to HC Rajender of PS: Narela. He proved the copy of RC as Ex.PW13/A.
34. During cross-examination for accused Sagar he stated State Vs. Yadvender etc. SC NO:455/17 15 that he handed over the vehicle to HC Rajender at about 4:05 pm on 15.04.17 at Gohana. At the same time they left with the vehicle from police station.
35. During cross-examination for accused Yadvender he stated that Ex.PW13/A is in his handwriting. HC Rajender made the entry in PS: Narela when he reached there but he does not remember the DD number. He denied the suggestion that HC Rajender did not take any vehicle from the police station or that he did not visit the police station on 15.04.2017. No question was put to the witness on behalf of other accused persons.
36. Ct. Jitender was examined as PW-14. He deposed that on 05.04.2017 he along with Inspector Rajender Singh and other staff went in search of accused persons. They reached the house of Amit @ Uttam at Arya Nagar Gohana. Witness correctly identified the accused. They knocked the door of the house of Amit who opened the door. They made inquiries from Uttam about the accused persons. At the same time three boys who were on the roof of the house of accused Uttam ran away. They chased them but they succeeded in escaping from the police. Accused Uttam informed them that Mohit is one of the accused with him in some other case.
37. During cross-examination for accused Amit he State Vs. Yadvender etc. SC NO:455/17 16 deposed that they left from PS: Narela at about 2:00 pm in private vehicle i20 car. There were four persons in the vehicle i.e. Ct. Sandeep, ASI Jai Bhagwan, Inspector Rajender and he himself at about 3:30 pm they reached at Gohana and informed the local police station. He does not know if IO made entry in PS: Gohana, but local police officials accompanied them. He does not remember the names of the local police officials who accompanied them. He does not know at what time they reached at the house of Amit. It took 20 minutes to reach the house of Amit from PS:
Gohana. He does not know how many stories were there in the house of Amit. They remained at the house of Amit for about 15-20 minutes. IO did not request any neigbour to join the proceedings. There were house on all the four sides. He does not know how many other persons were present in the house of Amit.
38. During cross-examination for accused Mohit he stated that police officials of PS: Gohana accompanied them on his motorcycle to the house of Amit. The local police officials led them to the house of accused. In his presence details of other involvements of Mohit were not told by Amit. Sarpanch could not be joined as the accused was not apprehended from the village. No question was put to the witness on behalf of accused Yadvender and Sagar.
State Vs. Yadvender etc. SC NO:455/17 17
39. HC Rajender Singh was examined as PW-15. He deposed that on 15.04.17 he along with SHO Inspector Jarnail Singh went to PS:Sadar Gohana. In the police station car No. HR 55AA 4231 was found parked. The car was inspected by the crime team of Delhi. Chance prints were also lifted. There were blood stains on the window panes of the car. One bamboo stick was also found inside the car having blood stains. The bamboo stick was put in a cloth parcel, sealed with the seal of JS and seized vide seizure memo Ex.PW15/A. Thereafter, they returned to the PS:
Narela. The car was also brought to the police station by driving the same. He identified the bamboo stick as Ex.PW15/1 as the same which was found inside the car.
40. During cross-examination for accused Sagar he stated that he does not remember at what time they left the police station but it was in the afternoon. They reached police station Narela at about 8:30 or 8:45 pm. He denied the suggestion that they returned to the police station along with car No. HR 55AA 4231 by 5:00 pm. The crime team met them at PS: Sadar Gohana. He denied the suggestion that crime team met them at police station Narela. He denied the suggestion that Sagar was already in the police station 3 - 4 days prior to 16.05.2017. He denied the suggestion that they forced the accused to touch the car so that finger prints could State Vs. Yadvender etc. SC NO:455/17 18 be lifted from there.
41. During cross-examination on behalf of accused Yadvender Kadyan he deposed that SHO made the departure entry. They left in the car of SI Avdhesh. The distance between PS: Narela and PS: Sadar Gohana is about 40 km and it took them 1 or 1½ hour to reach there. He cannot tell the time of their reaching the PS: Sadar Gohana. From police station Narela they reached Bawana. From Bawana to Kharkhoda and then to Gohana. Ct. Daal Singh issued the road certificate No.605 for taking away the case property. Ct. Daal Singh was the malkhana moharrar. There were 2-3 persons in the crime team but he does not remember their names. He does not remember at what time crime team started inspecting the car No. HR 55AA 4231. He does not know who opened the car but the key of the car was available with PS: Sadar Gohana. Ct. Naveen drove the car to PS: Narela. He handed over the road certificate to the malkhana Moharrar PS: Narela. SHO was carrying the cloth and sealing material with him. He does not remember how much time was taken by crime team to inspect the car.
42. During cross-examination for accused Mohit he denied the suggestion that Bamboo stick was not found in the car or that it was planted upon the accused. He denied the suggestion that no proceedings were recorded in PS: Sadar State Vs. Yadvender etc. SC NO:455/17 19 Gohana or that all the proceedings were recorded in the PS:
Narela. No question was put to the witness on behalf of accused Amit @ Uttam.
43. Ms. Manisha was examined as PW-16. She deposed that she does not know any person by the name of Yadvender Kadyan. She purchased the mobile phone No.8447557570 vodafone and phone number 9205 and the other digits she does not remember. She purchased both the above numbers from Kiran Telecom, Main Bawana chowk. She purchased these numbers in the month of July 2016. The mobile phone No.9205127677 was purchased from Kiran telecom vide CAF Ex.PW16/A having her photogrpah at point X.
44. Leading question was put to her by Ld. APP with permission of the court. Wherein she admitted that she is having facebook account which she closed in the month of January 2017.She does not know any person by the name of Yadvender Kadyan @ Vicky @ Moxx. Accused was also pointed out to her but she did not identify the accused. She had not given mobile phone No. 9205127677 to accused Yadvender. No question was put to the witness on behalf of defence.
45. SI Pramod Kumar was examined as PW-17. On 31.03.17 he received DD no.11A Ex.PW-17/A that a person State Vs. Yadvender etc. SC NO:455/17 20 is lying unconscious at Vinayak Road to Bawana Road. He along with Ct. Hem Raj reached opposite Shivam Garden, Bawana Road where dead body of a male was lying. There was bleeding injury on the head of the body. The crime team was called. Crime team inspected the scene of crime and the photographer took the photographs. One half filled liquor bottle make Imperial Blue 375, only for sale in Haryana was found on the spot. The bottle along with its lid was put in a plastic container sealed with the seal of PK and seized vide memo Ex.PW-17/A. From the spot the blood stained soil was lifted. It was put in a plastic container, sealed with the seal of PK and seized vide memo Ex.PW-17/B. The earth control sample was lifted, put in a plastic container, sealed with the seal of PK and seized vide memo Ex.PW-17/F. Blood was also lifted from the spot, put in a plastic container, sealed with the seal of PK and seized vide memo Ex.PW-17/D. He prepared application Ex.PW-17/E for preserving the dead body in the mortuary of BJRM hospital and sent the body to the mortuary through Ct. Hemraj.
46. On 02.04.17 he prepared inquest papers i.e. form no.25.35 Ex.PW-17/F-1, brief facts Ex.PW-17/F-2. The dead body was identified by Harender and Pitamber vide statements Ex.PW-17/F-3 and PW-17/F-4. He recorded statements of Harender and Arvind Ex.PW-17/G-1 and G2 State Vs. Yadvender etc. SC NO:455/17 21 respectively. He moved an application Ex.PW-17/H for post mortem. After the post mortem the dead body was handed over to the relatives vide memo Ex.PW-17/I. After post mortem doctor handed over viscera in sealed box along with sample seal which was seized by him vide memo Ex.PW- 17/J. Doctor also handed over the clothes of deceased in sealed parcel and the blood sample of the deceased in gauze in sealed envelope along with sample seal which he seized vide seizure memo Ex.PW-17/K. He deposited the case property in malkhana.
47. On 02.04.17 he received the copy of zero FIR of PS Gurugram Sadar dt.01.04.17 under sec. 302, 364, 365,201/34 IPC. He made endorsement Ex.PW-17/L on the same and got the FIR registered. Further investigation was assigned to Inspector Rajender Singh, after registration of case.
48. He along with Inspector Rajender Singh reached the place where dead body was found. IO prepared site plan. He handed over all the documents prepared by him to the IO.
49. During cross examination on behalf of accused Yadvender and Mohit, he deposed that he called the crime team after about 10 minutes of his reaching the spot. Blood was found on the head of the body and also on the ground. He recorded the statement of Harender and Arvind in BJRM State Vs. Yadvender etc. SC NO:455/17 22 hospital. He denied the suggestion that he received the exhibits from the doctor in unsealed condition.
50. During cross examination for accused Sagar, he stated that Harender and Arvind met them on 01.04.17 in the evening when they identified the dead body. They themselves came to the PS. From the PS they were taken to the mortuary of BJRM hospital at 6 PM.
51. He does not know where the B Block of Bhorgarh is situated. The dead body was lying at a distance of 4-5 km.from Muneem ji ka Bagh.
52. No question was put to the witness on behalf of accused Amit.
53. SI Subhash Chand was examined as PW-18. He deposed that on 29.05.17 he received the case file along with lifted chance prints Q1 to Q4 with photographs and negatives. He searched on the record of Bureau and chance print mark Q4 was found identical with the right ring finger impression of Sagar son of Sh.Sulesh Kumar r/o V&PO Khubru, PS Gannaur, Dist. Sonepat, Haryana, who was arrested in case FIR no.265/17 dt.02.04.17 under Sec.302/364/365/201/392/397/212/411/34 IPC PS Narela. On manual comparison chance prints Q1 and Q3 were found identical with the right thumb and right middle finger impression of Sagar son of Sulesh Kumar mark S1 and S2 State Vs. Yadvender etc. SC NO:455/17 23 respectively. The chance print Q2 is unfit for comparison. He proved his detailed report as Ex.PW-18/A. The chart showing identical ridge characteristics, detailed description of identical ridge characteristics, finger print slip of Sagar running into 5 pages as Ex.PW-18/A. Nothing material came on record to discredit the witness during cross examination.
54. Sh. Chander Shekhar, Nodal Officer, Bharti Airtel was examined as PW-19. He brought the record of mobile phone no.9205127677. As per record this mobile number was issued in the name of Manisha Sehrawat d/o Sh. Sanjay r/o H.No.D-196, Main Bazar, bus stand Bawana, Mukhtiyar Singh Marg, Delhi. The photocopy of CAF is proved as Ex.PW-16/A. The call detail record of this number from 01.03.17 to 01.04.17 is proved as Ex.PW-19/A. The certificate under Sec.65 B of Evidence Act is proved as Ex.PW-19/B. The cell ID chart is proved as Ex.PW-19/C.
55. During cross examination on behalf of accused Yadvender, he denied the suggestion that he prepared the false and fabricated call detail record at the instance of IO.
56. During cross examination on behalf of accused Amit, he admitted that when there is congestion on one tower the mobile phone may pick the signal from the other tower but the CDR will show the number of the tower of the signal is picked.
State Vs. Yadvender etc. SC NO:455/17 24
57. No question was put to the witness on behalf of accused Sagar and Mohit.
58. ASI Ram Kishan was examined as PW-20. He deposed that on 22.06.17 on the direction of SHO he received two sealed parcels from MHC(M) for depositing the same at FSL, Rohini vide RC no.145/21/17. He deposited the parcels with FSL and obtained the acknowledgement. He returned to the PS and handed over the copy of road certificate and acknowledgement to the MHC(M). No one tampered with the case property in any manner till the case property remained in his possession. Nothing material came on record to discredit the witness during cross examination.
59. Sh. Pawan Singh Nodal Officer Idea Cellular was examined as PW-21. He has brought the record of mobile number 8685009372. As per the record this number was alloted in the name of Mohit son of Rajender Pal r/o 181-20, Ward no.20, Gandhi Nagar, Gauhana, Sonepat. Photo copy of CAF is proved as Ex.Ex.PW-21/A. The photocopy of Aadhar card annexed with the CAF is proved as Ex.PW- 21/B. Call detail record of this number from 01.03.17 to 01.04.17 is proved as Ex.PW-21/C. The certificate under Sec.65B of Evidence Act is proved as Ex.PW-21/D.
60. He has also brought the record of mobile phone number 8750588283. As per the record this number was State Vs. Yadvender etc. SC NO:455/17 25 allotted in the name of Kiran Kumar son of Pitamber Singh r/o Ghasiya Garhi, Kolahar, Mathura (UP). The photocopy of CAF is proved as Ex.PW-21/E. Photocopy of Aadhar card annexed with the customer application form is proved as Ex.PW-21/F. The call detail record of the above number from 30.03.17 to 05.08.17 is proved as Ex.PW-21/G. The certificate under Sec.65 B of Evidence Act is proved as Ex.PW-21/H.
61. He has also brought the record of mobile number 8750376260. As per the record this number was allotted in the name of Asha Rani wife of Dal Chand r/o 76, Mughal Pur, Bareli (UP). The photocopy of CAF is proved as Ex.PW-21/I. Photocopy of Aadhar card annexed with the customer application form is proved as Ex.PW-21/J. The call detail record of this number from 10.05.17 to 20.05.17 is proved as Ex.PW-21/K. The certificate under Sec.65 B of Evidence Act is proved as Ex.PW-21/L.
62. During cross examination on behalf of accused Mohit, he denied the suggestion that he generated the false and fabricated CDR at the instance of IO. Using one sim two calls can not be made at the same time. He admitted that two numbers can not be dialed at the same time from one phone.
63. Sh. Sudesh Pal Tomar, SD Admn, BSNL, Sonepat was examined as PW-22. He has brought the record of mobile State Vs. Yadvender etc. SC NO:455/17 26 phone no.9467506799. As per record, this number was issued in the name of Sombir son of Sh. Ram Phal r/o H.no.33C, Vill Gudha, Tehsil Gohana, Dist.Sonepat, Haryana. He proved the copy of CAF as Ex.PW-12/A. Photocopy of voter ID card annexed with customer application form is proved as Ex.PW-12/B. The CDR of this mobile phone number from 01.03.17 to 01.04.17 is proved as Ex.PW-22/A and certificate under Sec.65 B of Evidence Act is proved as Ex.PW-22/B.
64. Sh. Rajesh Shankla, JTO BSNL, Gurugram was examined as PW-23. He has brought the record of mobile phone No. 9467506799 as per the record this mobile phone number was issued in the name of Sombir S/o Sh. Ramphal R/o H.No.33/C, Village Gudha, Tehsil:Gohana, Distt. Sonepat, Haryana. The customer application form is Ex.PW12/A. The copy of the voter ID card annexed with the customer application form is proved as Ex.PW12/B. The testimony of the witness has gone unchallenged and uncontroverted.
65. Smt. Rajan Devi was examined as PW-24. She deposed that her son Sanjay was working as driver with Ola Company and used to drive taxi No. HR 55AA 4231 Honda Amaze owned by Sh. Kiran Kumar. On 31.03.2017 her son left at 12:00 midnight for taking the passengers from State Vs. Yadvender etc. SC NO:455/17 27 Gurgaon to Delhi. Her son dropped the customer at Bakoli. That customer again booked the car. Her son picked that customer from Bakoli to drop him at Narela. Thereafter her son had not returned home. They searched for Sanjay and Ola company. From Ola company they reached Gohana where they found the vehicle No. HR 55 A 4231 parked abandoned. The key was still in the ignition. All the doors were lying open. The clothes of her son were also lying in the car. There were blood stains in the entire car. From there they returned to Gurgaon police station. The police did not register the case. From there they went to CO to got the complaint registered. From Gurgaon they returned to Narela in search of their son Sanjay and also visited PS: Narela. In PS: Narela they came to know that dead body of her son is lying in the hospital. She identified the body of her son in the mortuary of the hospital. After the post mortem they received the dead body . She proved her complaint given at PS:
Sadar Gurugram as Ex.PW24/A.
66. During cross-examination she admitted that in her complaint she doubted Kavita and her son whose vehicle her son used to drive earlier and that Sumit is already in Jail. She also admitted that three days before the incident her son was threatened to be killed from mobiloe phone No.9708775364 and prior to that Pardeep and Pintoo having commercial State Vs. Yadvender etc. SC NO:455/17 28 relation with kavita also threatened that they would not allow him (Sanjay to see Saturday). She admitted that she suspected Kavita and Sumit are also behind the murder of her son. Her son was facing trial in two criminal cases.
67. SI Aakash Deep was examined as PW-25. On 31.03.2017 he was posted as Incharge Mobile Crime team. On that day after receiving information from the control room he along with HC Arvind Photographer and SI Manish Kumar reached in front of Shivam Garden, Narela Bawana road on the kaccha road SI Parmod along with staff met them there. By the side of the road a dead body of a male was lying. There was a wound on the back side of neck of the body. Blood was found on the spot. Half filled bottle of liquor was also found. Photographer took the photographs. He inspected the scene of crime and gave his report Ex.PW25/A. The testimony of witness has gone unchallenged and ucontroverted.
68. Harender was examined as PW-26. He deposed that Sanjay was his elder bother and was working as driver with Ola company. His brother used to drive taxi No. HR 55AA 4231 Honda Amaze owned by Sh. Kiran Kumar who is his cousin brother. His brother Sanjay was having mobile No. 9711953010. Ola company has also provided him mobile No.8750588283. On 01.04.2017 at about 10:00/ 10:30 am State Vs. Yadvender etc. SC NO:455/17 29 his mother made a call to him and informed that Sanjay had not returned home with vehicle. On those days he was residing at H.No.34 Gali No.14A Block Khajoori Delhi. His mother also informed that both the mobile phones of Sanjay are switched off and are not responding. His brother usually used to return home at 7:00 am. He left his house for going to the house of his mother. When he reached Dhaula Kuan at about 12:00/12:30 noon he made a call to his mother who informed that there is no information /news about Sanjay. From Daula Kuan he left for Ola company situated in Phase- IV Gurgaon. From Ola company he was provided the location of the mobile phone as well as of the Honda Amaze by the Ola company. As per the detail provided by the company the vehicle of his brother was booked from Gurgaon to Bakoli, Delhi by Moxx Kadyan having mobile no.9205127677 dt.31.03.2017. After dropping the customer the vehicle of his brother Sanjay was again booked for Narela from Bakoli. When his brother dropped the customer at Bakoli, he informed the company that a quarrel took place with the person who was sitting in the car at that time. The Manager of the company told his brother to drop the customers and that the vehicle will not go out of Delhi. The last location of the drop was found in Narela. Thereafter, the location of vehicle was found in Gohana near village Garhi, Ujale Khan State Vs. Yadvender etc. SC NO:455/17 30 near St. Oxford School. The vehicle was found stationed 60- 70 meters away from the school. He along with his mother reached the company and his cousin brother Kiran Kumar and friend of his brother Sh. Arvind Singh left for Gohana. They all reached the place where vehicle of his brother was found stationed. The key of the vehicle was found in the ignition. The door of the vehicle were found open and there was blood. There was one danda inside the car on the rear seat and one screw driver. The screw drier was of green colour. One empty liquor bottle was found in the said car. He made inquiries from the nearby houses who informed that this vehicle is stationed there since morning at 5:30 to 6:00 am. They all went to PS: Sadar Gohana, Distt. Sonepat, Haryana and informed the police. He also informed the police that his brother Sanjay is missing and his vehicle is found stationed near village Garhi Ujala. The police accompanied them and searched for his brother but he was not found any where. At about 8:00/8:30 am he alongwith police officials went to PS: Sadar Gohana with vehicle of his brother Sanjay. He filed the complaint with the police regarding missing of his brother Sanjay. Vehicle of his brother was parked in PS:
Sadar Gohana. Thereafter, he went to his house.
69. Next day i.e. 02.04.2017 he went to Ola company Gurgaon. He again requested the company officials to find State Vs. Yadvender etc. SC NO:455/17 31 the exact location of the mobile phone of his brother. The company informed him that the last dropped location of the car is Narela Delhi. He reached PS: Narela where he had shown the photographs of his brother and informed that vehicle of his brother is parked in Gohana. Police officials of PS: Narela Delhi informed that they found a dead body. They had shown him the photographs and took him to BJRM hospital where he identified the dead body as of his brother Sanjay. They lodged the complaint with the police station Narela. Kiran also made the complaint with the police which is Ex.PW26/A. The post mortem on the dead body was conducted on 02.04.2017. The dead body was identified by him and Arvind vide document Ex.PW17/F3. Police recorded his statement Ex.PW17/G1. After post mortem the dead body was handed over vide memo Ex.PW17/I. He also identified the complaint given by her mother at PS: Sadar Gurgaon as Ex.PW24/A.
70. During cross-examination by the defence he admitted that earlier his brother Sanjay used to drive the vehicle of Kavita which he drove for 2-3 months. He had not given any statement to the police telling that he doubted Kavita and her son whose vehicle his brother used to drive earlier and Sumit is already in jail or that three days before the incident his brother was threatened by Sumit or that the call was received State Vs. Yadvender etc. SC NO:455/17 32 from mobile phone No.9708775364 or that prior to that Pardeep and Pintoo having commercial relation with Kavita also threatened that they would not allow him to see Saturday or that he suspected Kavita and Sumit are also behind the murder of his brother. Witness was confronted with his statement Ex.PW26/DX where it was found recorded. He admitted that police officers did not obtain his signatures on the seizure of danda and the screw driver. He had seen these articles in the car and police requested him not to touch the same. He had not signed any document showing that he had gone to PS: Sadar Gohana. He stated that signature of Arvind were taken. He admitted that the signature of Arvind are not there on the seizure of screw driver and the danda and the seizure of the vehicle. He denied the suggestion that he had not visited Gohana or that vehicle was not found in his presence. He admitted that there were 7-8 criminal cases in Delhi and Haryana against his brother Sanjay. There is one criminal case pending against him u/s 397 IPC.
71. Sh. Sukhdev Singh was examined as PW-27. He deposed that on 05.04.2017 two persons came to his shop for selling the mobile phone make Vivo of grey colour. He is running the shop in the name of Star Telecom, Civil Road, Gohana. The said boy had given the ID in the name of Uttam State Vs. Yadvender etc. SC NO:455/17 33 @ Amit. He purchased the said mobile phone for Rs.8,000/-.
After about one week two police persons of PS: Narela visited his shop and asked him, 'if he had purchased a stolen mobile phone". He informed to the police that he had purchased the mobile phone from two boys who had furnished the ID. He handed over the photocopy of the ID which was given to him by Amit @ Sh. Bhagwan Dass. The said person had given in writing that he is selling the mobile phone to me on 05.04.2017 and also mentioned the IMEI number also. The said photocopy of the ID card of Amit is Ex.PW27/A which was taken in possession vide memo Ex.PW27/B. Witness correctly identified the ID. He also handed over the mobile phone to the police. Police put that mobile phone in the plastic container and seized vide memo Ex.PW27/C. He also informed the police that he had installed CCTV cameras connected with DVR at his shop. On the asking of police he handed over the relevant CCTV footage to the police officials in the pendrive. The police seized that pendrive vide seizure memo Ex.PW27/D. Police also seized the DVR installed at his shop vide seizure memo Ex.PW27/E. The witness identified accused Amit @ Uttam correctly. He stated that the other boy who accompanied Amit is not present in the court. He identified the mobile phone as Ex.PW27/I. He identified the DVR as State Vs. Yadvender etc. SC NO:455/17 34 Ex.PW27/Article2 and the pendrive as Ex.PW27/Article3. The pendrive could not be played despite efforts. The witness stated that when the accused persons came to his shop they were clean shaven but today they are having beard therefore it is difficult to recognize them. He pointed towards Yadvender as the person accompanying Amit.
72. During cross-examination for accused Amit and Yadvender he stated that he is running the shop for the last 13 to 15 years. He is dealing in sale and purchase of old mobile phones. He is deposing in the court for the first time. He asked the accused persons to provide the ownership documents and receipt of purchase of mobile phone but they were not having any receipt. He purchased the said mobile phone from the accused without ownership document and bill because accused handed over him the ID. It was told to him that the phone is about 4 months old. The actual cost of the aforesaid mobile phone may be 18,000/- to 19,000/-. He denied the suggestion that he is dealing in stolen mobile phones or that Amit did not hand over his ID to him or did not sell the mobile phone to him. The ID is not legible now but while handing over the photocopy to the police it was visible and face was also clearly visible. Police visited his shop 3-4 times. Police prepared the documents but he does not remember on which date police prepared the documents. State Vs. Yadvender etc. SC NO:455/17 35 One day police also came with accused Amit @ Uttam to whom he identified as the person who sold the mobile phone to him. On that day he also handed over the pendrive to the police and the DVR. He is also maintaining one register regarding sale and purchase of mobile phones. But he did not hand over that register to the police. He had given IMEI Number to the police on Ex.PW27/A after retrieving it from the mobile. He denied the suggestion that he does not maintain any register with respect to sale or purchase of mobile phones. No question was put to the witness on behalf fo accused Sagar and Mohit.
73. Anupam Singh was examined as PW-28. He deposed that he is working as Leasing Executive OLA Fleet Technologies Pvt. Ltd,. Vehicle No. HR 55AA 4231 was owned by M/s OLA Flee Technologies Pvt. Ltd., There was an agreement with Mr. Kiran to drive this vehicle but some unauthorized person was driving the same. The vehicle was fitted with GPS. He received notice u/s 91 Cr.PC on behalf of the company, same is Ex.PW28/A. The company gave reply to the same along with the documents which were seized by the police vide Ex.PW28/B. The photocopy of the RC of the vehicle is Ex.PW28/C. The movement report is Ex.PW28/D. The detail of the customer who booked the vehicle is Ex.PW28/E running into two pages. The photocopy of the State Vs. Yadvender etc. SC NO:455/17 36 lease agreement is Ex.PW28/F. Annexed with the same is driving licence of Kiran Kumar. The testimony of the witness has gone unchallenged and uncontroverted.
74. HC Anjeev Kumar was examined as PW-29. He deposed that on 16.04.2017 he joined the investigation with Inspector Jarnail Singh and SI Avdesh. They left in search of accused persons and reached Shahpur Garhi road. One secret informer met them who informed them the wanted accused Sagar would come there and would go towards Alipur. After some time one person having bandage on his hand was seen coming. Secret informer pointed towards him. The said person was apprehended. He was arrested vide arrest memo Ex.PW29/A. His personal search was conducted vide memo Ex.PW29/B. Accused Sagar @ Sartaj @ Langra was brought to PS. IO interrogated him and recorded his disclosure statement Ex.PW29/C. The witness correctly idnetified him. The accused led them to the place of drop point -1 at NH-1, Road going towards Chandigarh in front of village Bakoli at red light signal and pointed out the same where they dropped from the Taxi and again boarded the same taxi vide pointing out memo Ex.PW29/D. The accused also pointed out the place where dead body was thrown on the road i.e. Narela Bawana Road Shivam Garden vide pointing out memo Ex.PW29/E. The accused led them State Vs. Yadvender etc. SC NO:455/17 37 at some distance from the place where dead body was found at the corner of the road and picked up one screw driver used in the killing of taxi driver. There were blood stains on the screw driver. The sketch of the screw driver Ex.PW29/F was prepared. The screw driver was having handle of green colour. It was put in a plastic container, sealed with the seal of JS and seized vide memo Ex.PW29/G.
75. On 17.04.2017 he along with SI Avdhesh and IO along with accused Sagar went to the house of accused Amit @ Uttam. He was apprehended on the pointing out of accused Sagar. He was arrested vide arrest memo Ex.PW29/H. His personal search was conducted vide memo Ex.PW29/I. Accused Amit made the disclosure statement Ex.PW29/J. Accused Amit disclosed about selling of mobile phone to Star Telecom, Civil road Gohana. Amit led them to that shop. Sukhdev Singh owner of the shop met them who produced the mobile phone make Vivo grey colour. The mobile phone was put in a plastic container, sealed with the seal of JS and seized vide memo Ex.PW27/C. The owner of the shop also provided the photocopy of the voter ID card which was seized vide memo Ex.PW27/B. The witness also correctly identified the photocopy of voter ID Card of accused Amit S/o Sh. Bhagwan Dass Ex.PW27/A. Sukhdev Singh also handed over one pendrive having the footage of 05.04.2017 when State Vs. Yadvender etc. SC NO:455/17 38 accused Amit sold the Vivo phone to him. The pendrive was put in an envelope, sealed with seal of JS and seized vide memo Ex.PW27/D. Witness also correctly identified accused Uttam @ Amit.
76. On 21.04.2017 on the direction of Inspector Rajender Singh he took vehicle No. HR 55AA 4231 to FSL Rohini for examination. He reached Rohini where he met Inspector Rajender. FSL team inspected the vehicle and handed over eight exhibits, which were sealed with the seal of RS and seized vide memo Ex.PW29/K. He identified the mobile phone make Vivo as Ex.PW27/Article1. He identified the pendrive as Ex.PW27/Artice3 and the screw driver as Ex.PW29/Article1.
77. During cross-examination for accused Sagar he deposed that on 16.04.2017 he joined the investigation at about 10 or 11 am. At about 4:30 pm they reached at Alipur road. They were in private vehicle. At about 7:15 pm they returned to the police station after completion of investigation on 16.04.2017. It took them 30 to 35 minutes in completing the arrest proceedings. It took them about 45 minutes to an hour in police station before accused led them to the scene of crime. There were no residential houses and shops near the place from where accused was apprehended. He does not remember at what time they reached the place where the State Vs. Yadvender etc. SC NO:455/17 39 dead body was found. There is distance of about 7 to 10 km in between the place where dead body was thrown and Bakoli. There is a railway level crossing on the way from Bakoli to the place where dead body was thrown. There is distance about 3 to 4 km in between Narela B Block Industrial area and the place where the dead body was found. IO requested public persons to join but none agreed. IO requested public persons at the place of pointing out of the first dropping by the accused but none agreed. Public persons were also requested to join at the place where accused was arrested but none agreed and also at the place of recovery of screw driver. He denied the suggestion that screw driver was planted upon the accused or i.e. why the site plan of place of recovery was not prepared. No photographs were taken at the time of effecting recovery of screw driver. No chance prints were lifted from the screw driver. He denied the suggestion that accused Sagar was apprehended by the police 3-4 days prior to 16.04.2017 or that he was falsely implicated in this case.
78. During cross-examination on behalf of accused Amit he stated that he joined the investigation of the present case in the night of 16.04.2017 which continued on 17.04.2017. At about 8 or 9 pm on 16.04.2017 they returned to the police station. They left the police station in between 1 am to 4 am State Vs. Yadvender etc. SC NO:455/17 40 on 17.04.2017. They left the police station in private vehicle but he does not remember the make, registration number or ownership of the vehicle. SI Avdhesh was driving the said vehicle. They reached the local police station but he does not know if IO intimated local police or not. No local police official accompanied them. At about 7 -8 am they left the local police station of Gohana for the house of Uttam. There is a distance of about 40 to 60 km in between PS: Narela and local police station of Gohana. They reached the house of Uttam at about 7:30 am. He cannot tell how many stories were there in the house of Uttam. They remained at the house of Uttam for about 30 to 45 minutes. Some public persons gathered outside the house. At about 8:15 am they reached the shop of Sukhdev. The shop was lying open when they reached there. They stayed on the shop for about half an hour. He has no knowledge if Sukhdev is maintaining a register or record for the sale and purchase of mobile phones. He admitted that he was standing outside the shop of Sukhdev during the proceedings conducted by the IO. The pendrive may have been given by Sukhdev. He denied the suggestion that IO did not request any public person to join the proceedings at the house of Amit and at the shop of Sukhdev. After visiting the shop of Sukhdev they went to the house of accused Amit and his father was told about his State Vs. Yadvender etc. SC NO:455/17 41 arrest. From the house of accused Amit they directly reached at PS: Narela. He denied the suggestion that he did not join investigation on 17.04.2017.
79. During cross-examination on behalf of accused Yadvender and Mohit he denied the suggestion that accused Amit and Sagar did not make any disclosure statement or that he did not join the investigation.
80. ASI Surender Singh was examined as PW-30. On 31.03.2017 he was working as duty officer in PS: Narela. On that day at 6:02 am he received information from control room that one person is lying unconscious on Vinayak road to Bawana. He conveyed this information to SI Parmod who along with Ct. Hem Raj went to the spot. ERV1, SHO and Bravo were also sent to the spot. He recorded this information in DD No.11A Ex.PW17/A. The testimony of the witness has gone unchallenged and uncontroverted.
81. ASI Prahlad Singh was examined as PW-31. He deposed that on 01.04.2017 he was posted at PS: Sadar Gurgaon. On that day he received written complaint of Kiran and Harender having complaint No.813-5P dt. 01.04.2017 which was marked to him. The complaint is Ex.PW26/A. He made inquiries from the office of Ola cab. He came to know that vehicle No:HR 55 AA4231 was booked by mobile phone No. 92051276771 on 31.03.2017 by one person Moxx and State Vs. Yadvender etc. SC NO:455/17 42 he was picked at about 1:24 am. Its location was at Shanti Nagar Gurugram. The vehicle was taken to Bakoli, Delhi as per drop location at 3:04 am at Bakoli. The person again booked the same vehicle from the same number and took the cab to Narela from Delhi. These facts were conveyed to the complainant. The place of incident was found Bakoli which is under the jurisdiction of PS: Narela Delhi. The said complaint was filed vide Ex.PW31/A. On the same day written complaint Ex.PW24/A of Smt. Rajan Devi was received. The offence was found to be committed in the area of PS: Narela Delhi. He made endorsement Ex.PW31/B and prepared the rukka. The contents of the rukka were fed in the computer through computer operator and zero FIR Ex.PW31/C was registered. The testimony of this witness has gone unchallenged and uncontroverted.
82. Sh. Vivek Kumar Junior Forensic /Assistant Chemical examiner was examined as PW-32. He deposed that on 27.06.2017 two sealed parcels duly sealed with seal of JS were received in FSL. In one parcel there was DVR as detailed in his report and in the second parcel there was one pendrive. The DVR was forensically cloned on the sterile storage media but the requisite data of 05.04.2017 from 6:53 pm to 7:01 pm could not be found in the DVR. The exhibits were re-sealed with the seal of FSL V:K DELHI. He proved State Vs. Yadvender etc. SC NO:455/17 43 his report as Ex.PW32/A. The testimony of the witness has gone unchallenged and uncontroverterd.
83. Ms. Anita Chhari was examined as PW-33. She deposed that vehicle No.HR 55AA 4231 Honda Amaze ivtec white colour was received in FSL for inspection. On 21.04.2017 she thoroughly examined the car for biological clue material. She prepared the report about the material found in the car. The same is Ex.PW33/A. The witness was again re-called. She detailed the material found and proved her report as Ex.PW39/C.
84. During cross-examination by the defence she denied the suggestion that they did not inspect the aforesaid vehicle or that they did not notice any blood in aforesaid vehicle.
85. Ct. Hemraj was examined as PW-34. He deposed that in the intervening night of 30/31.03.17 he was posted at PS Narela. On that day in the morning hours SI Pramod received DD no.11A regarding one person lying unconscious at Chinayak Road, Narala, Bawana Road. He along with SI Pramod reached near Shivam Garden, Bawana Road, He corroborated the testimony of PW-17 regarding seizure of the exhibits from the spot, getting conducted the post mortem on the body and the seizure of the exhibits from the hospital after the postmortem.
86. During cross examination for accused Yadvender, he State Vs. Yadvender etc. SC NO:455/17 44 denied the suggestion that he had not joined the investigation with the IO or that he signed all the documents while sitting in the PS at the instance of the IO.
87. During cross examination for accused Sagar, he deposed that they reached at the spot at about 6.20 AM. 10 to 15 public persons gathered on the spot. IO made inquiries from them in his presence but did not record their statements. He does not know what was found written on the liquor bottle found at the spot. He did not meet any relative of the deceased outside the mortuary. He admitted that one has to cross the railway line to reach the place where dead body was found if he starts from SRHC hospital. He is not sure that Narela Bawana Road is also known as Chinayak Road.
88. During cross examination for accused Mohit, he stated that he does not remember if crime team lifted any chance prints. He left the spot after 9 AM. Crime team officials reached at the spot after one hour of their reaching the spot. He does not know at what time crime team started inspection. Crime team left the scene of crime in his presence but he does not remember the time.
89. No question was put to the witness on behalf of the accused Amit.
90. HC Sunil was examined as PW-35. On 18.04.17 he State Vs. Yadvender etc. SC NO:455/17 45 joined the investigation with Inspector Jernail Singh. He left the PS along with accused Sagar and reached the field of Surender Banwala r/o Village Kasandi, Sonepat, Haryana. In the said field near the nala, accused pointed out the ashes of the clothes. The ashes of clothes were put in a polythene, sealed with the seal of JS and seized vide memo Ex.PW- 35/A.
91. On 08.05.17 he again joined the investigation. On this date he left along with IO in search of the accused persons. When they reached near Singhu Border, one secret informer met them, who informed that Mohit would come from the side of Gauhana towards Alipur. After some time one person was seen coming and was pointed out by the secret informer. That person was apprehended. He disclosed his name as Mohit. He was arrested vide memo Ex.PW-35/B. His personal search was conducted vide memo Ex.PW-35/C. Accused made the disclosure statement Ex.PW-35/D. Accused pointed out the place of first dropping point and from where they again hired the same taxi vide pointing out memo Ex.PW-35/E. The accused also pointed out the place opposite Shivam Garden, Narela, Bawana Road where the dead body was found vide pointing out memo Ex.PW-35/F. At some distance from that place, accused pointed out towards the bushes and from there produced one wallet of red colour State Vs. Yadvender etc. SC NO:455/17 46 containing ID card, Aadhar car, PAN and driving license in the name of Sanjay. The cards were again put in a wallet. The wallet was wrapped in a piece of cloth, sealed with the seal of JS and seized vide seizure memo Ex.PW-35/G.
92. On 10.05.17 he again joined the investigation of the present case with the IO. Accused Mohit was in his custody. Accused led them on the road, Auchandi Border to Kharkhoda near Pritam and Sons Filling Station, Vill. Pipli. Accused pointed out the place from where he made a call to his cousin brother Anurag. The pointing out memo Ex.PW- 35/H was prepared. Thereafter he pointed out the place in village Kasandi where they stopped the vehicle for meeting with his friend Kishan but coult not meet Kishan. IO prepared the pointing out memo Ex.PW-35/I. Accused led them them to Badana Road, Sonepat, Haryana in the field of Surender Bhanwala where they had burnt the clothes vide pointing out memo Ex.PW-35/J. Thereafter accused led them to Saini Pura Chowk, near Daksh Engineering College and pointed out the place where they abondoned the robbed car vide pointing out memo Ex.PW-35/K. Witness has identified the accused Mohit and Sagar. He identified the plastic container containing the ashes as Ex.PW-35/Article 1. He identified the wallet containing voter ID card, Aadhar card, PAN card and driving license of Sanjay Ex.PW-35/Article 2. State Vs. Yadvender etc. SC NO:455/17 47
93. During cross examination for accused Amit he denied the suggestion that he did not join the investigation as deposed by him.
94. During cross examination for accused Yadvender, he denied the suggestion that accused Sagar and Mohit did not make any disclosure statements or that their signatures were obtained on certain blank papers which were later on converted into various memos etc to falsely implicate the accused persons.
95. During cross examination for accused Sagar, he deposed that on 18.04.17 they left the PS at about 10 AM after making departure entry. They reached the field of Surender Banwala between 12 noon to 1 PM. They did not inform the local police of Gauhana, Haryana. Surender met them in the field itself. IO did not record the statement of Surender. IO took the photographs of the spot in the mobile phone. Field of Surender is at a distance of 50 to 60 km from PS Narela. They returned to PS at about 9/10 PM. He denied the suggestion that accused did not point out any place or his signatures were obtained on blank papers forcibly.
96. During cross-examination for accused Mohit he deposed that they left the police station at about 11 am on 08.05.2017 in police gypsy. At about 4:00 pm they reached at Singhu border. IO was carrying his kit and laptop. They all State Vs. Yadvender etc. SC NO:455/17 48 were in uniform and were standing in front of Aggarwal shop at Singhu Border. IO did not request shopkeepers to join investigation. IO overpowered the accused and handed over to him. They did not allow the accused to run away. They remained at Singhu Border upto 6:00 pm. The arrest papers and disclosure of accused was recorded by IO while sitting on chair. No person was called from police beat box before or after the apprehension of accused. The information about arrest of accused was given to his relatives at about 5:15/5:30 pm. At about 6:30/6:45 pm they reached the point of first dropping. IO prepared the site plan (but no such site plan is available on record). No photograph of the wallet recovered were taken. He denied the suggestion that the wallet, Aadhar card, Pan card, Driving lisence and Voter ID Card were already with them or that the same was planted upon the accused. They returned to the PS at about 8:30/9:00 pm.
97. On 10.05.2017 they left the police station at about 9:30 am. Ct. Amit and Ct. Devender were with them. At about 12:00 noon they reached village Kasandi. IO did not record the statement of village Pradhan, Krishan or any other family member of Krishan or the neighbours. He had seen the field of Surnder Bhanwala prior to the pointing out by accused Mohit. He denied the suggestion that accused did not point State Vs. Yadvender etc. SC NO:455/17 49 out the field of Surender Bhanwala. He denied the suggestion that accused did not make any disclosure statement.
98. Inspector Rajender Singh was examined as PW-36. On 02.04.2017 he received the copy of FIR and original rukka for further investigation. He along with SI Parmod reached Naya Narela, Bawana road, Opp. Shivam Garden. He prepared the site plan Ex.PW36/A at the instance of SI Parmod. SI Parmod handed over the documents prepared by him and briefed him. He made efforts to find out clue of the accused but could not trace them. He sent request to the service provider for providing the desired documents of mobile phone number 9205127677. He contacted the officers of OLA company at Gurugram on telephone and obtained the route of vehicle No.HR 55 AA 4231. He recorded the statement of Harender, Smt. Rajan Devi and Kiran Kumar. He also interrogated the persons whose name appeared in the statement of these witnesses.
99. On 04.04.2017 he got the call detail record of the mobile phone number and gone through the same. In the CDR there was mobile phone No:9467506719 in the name of Sombir S/o Sh. Ramphal R/o Village Gudda. On 05.04.2017 he met Sombir at his house in Gudda and recorded his statement. Thereafter, they reached the house of Mohit but State Vs. Yadvender etc. SC NO:455/17 50 he was not found there. They came to know that Mohit has criminal antecedents. He along with SI Jai Bhagwan and Ct.Jitender went to PS: Gohana, Sonepat and collected previous involvement of Mohit. From perusal of that he came to know that Amit was co-accused with him in the earlier cases. They reached the house of Amit @ Uttam at Arya Nagar, Gohana. On seeing the police party 3 persons ran away from the roof of Amit @ Uttam. They met Amit @ Uttam, who informed that 3 boys who ran away from roof are Yadvender @ Vicky @ Moxx, Mohit and Sagar. He searched for the accused persons but they could not be found. On 14.04.2017 he handed over file to Inspector Jarnail Singh who conducted further investigation.
100. On 21.04.2017 he along with HC Anjeev took car No. HR 55 AA 4231 to FSL Rohini and got the same inspected from FSL experts. The FSL experts lifted 8 exhibits from the car. All the exhibits were sealed in 8 separate parcels with the seal of RS and seized vide memo Ex.PW29/K. The witness has correctly identified all the accused persons.
101. During cross-examination for accused Yadvender he stated that he left PS at about 4:00pm on 02.04.2017 and reached the spot within half an hour in his own car. On 02.04.2017 he made request to the service provider of the mobile phone number to provide the CDR. The CDR may State Vs. Yadvender etc. SC NO:455/17 51 have been provided by service provider on 03.04.2017. He did not visit the office of OLA company at Gurugram. He did not record the statement of concerned persons of OLA company at Gurugram. He denied the suggestion that he did not obtain the route of vehicle bearing No. HR 55AAS 4231 till the investigation remained with him. He did not obtain the documents of route of aforesaid vehicle. He interrogated Kavita, Pradeep and Pintu Yadav on 03.04.2017 but did not record their statements. He denied the suggestion that in connivance with Kavita, Pardeep, Pintu and Sumit he falsely arrested the accused persons. He did not make any inquiry from Sumit. He also obtained CDR of mobile phone numbers of above said persons or did not file the same. He does not remember the mobile phone numbers of the aforesaid persons. He cannot tell if deceased was habitual offender. He denied the suggestion that on 05.04.2017 he did not visit the house of Sombir or Sombir did not give any statement to him.
102. No local police official accompanied them when they visited the house of Amit @ Uttam. He asked local police to accompany them but they refused due to shortage of staff. He did not inform the local police regarding running of 3 boys. They along with local police did not search for those 3 boys. He denied the suggestion that he did not fairly State Vs. Yadvender etc. SC NO:455/17 52 investigate the case.
103. During cross-examination on behalf of Mohit he deposed that on 05.04.2017 he visited the house of Mohit. He had not informed the local police before visiting the house of Mohit. He had obtained the previous criminal record of accused Mohit and the address of co-accused from the PS. He does not remember the name of police officials from whom he collected the previous criminal record of accused Mohit and the addresses of other accused persons.
104. During cross-examination on behalf of accused Amit he stated that Amit was residing in ward No.16, Arya Nagar, Gohana. At the time of their visit parents of Amit, Amit and the 3 other accused persons were present in the house. They remained at the house of Amit for one and half hour. The house of Amit is constructed upto one and a half storey there are built up houses on both side of house of Amit. No house was situated on the back side of house of Amit. He made inquiries from the neighbourers of Amit.
105. Same cross examination was adopted on behalf of accused Sagar.
106. HC Anwar was examined as PW-37. He deposed that on 02.04.2017 he was posted in PS: Sadar Gohana, Distt. Sonepat as HC. On that day Munshi informed him that a vehicle is parked abandoned at Sainik Pura, Ramgarh road. State Vs. Yadvender etc. SC NO:455/17 53 He reached there along with two more constables. He found that one car No. HR 55A 4231 white colour Honda Amaze was found parked by the side of the road. There were iron pipes on the front and rear bumper of the car. On checking blood was found on the rear seat and rear window of the car. One Bamboo stick was also lying in the car having blood stains. He seized the car u/s 102 Cr.PC. Thereafter he returned to the police station along with the car and deposited the car in the malkhana. He proved the siezure memo of the cars as Ex.PW37/A.
107. During cross-examination on behalf of accused Sagar he stated that there is a distance of about 12 km between PS: Sadar Gohana and the place from where the car was found abandoned. The ignition key was not found in the car. The car was brought to the police station by towing it. They reached the place where car was found at about 9:30 am. He denied the suggestion that he got the information on 01.04.2017 itself that a car is lying abandoned on that road or that this information was given by the mother and brother of the deceased or that it was also informed that the ignition key of the car was in ignition and all the doors are lying open. He does not know if the mother and brother of deceased gave this information in police station Sadar Gohana at 8:30 pm on 01.04.2017. No question was put to State Vs. Yadvender etc. SC NO:455/17 54 the witness on behalf of other three accused persons.
108. SI Avdhesh was examined as PW-38. He stated that on 15.04.2017 he along with inspector Jarnail Singh and other staff of crime team visited PS: Sadar Gohana. They met the local police officials. Car No. HR 55AA 4231 was found stationed in the premises of PS: Gohana. There were blood stains on the inner and outer glass of the said car and one blood stained danda was also found inside the car. Crime team officials inspected the said car and lifted the finger prints. The blood stained danda was measured, wrapped in a piece of cloth. Sealed with the seal of JS and seized vide memo Ex.PW15/A. He also corroborated the testimony of PW-29 with respect to the arrest of accused Sagar and also the testimony of PW-20 with respect to the pointing out of the place of first dropping and throwing of the body and recovery of the screw driver. He also corroborated the testimony of PW-27 with respect to the arrest of accused Amit. The seizure of Vivo phone, the photocopy of voter ID card from the shop of Sukhdev. He also corroborated the testimony of PW-38 with respect to the arrest of accused Yadvender and the pointing out made by him. He also corroborated the testimony of PW38 with respect to the pointing out. He also corroborated the testimony of PW-9 regarding the pointing out of place by accused Yadvender State Vs. Yadvender etc. SC NO:455/17 55 where they have burnt the clothes and also where the car was abandoned. He corroborated the testimony of PW-27 regarding the seizure of the DVR. He identified the mobile phone make Vivo as Ex.PW27/Article-1. The pendrive is Ex.PW27/Article-3. The screw driver as Ex.PW29/Article-1. The DVR as Ex.PW27/Article2 and the Bamboo stick as Ex.PW15/Article-1.
109. During cross-examination for accused Mohit he denied the suggestion that no blood stains were found on the Bamboo stick Ex.PW15/Article1. No finger prints were lifted by the crime team in his presence. On 15.04.2017 they left the police station at 4 pm for going to Gohana. They returned to the police station from Gohana at 9:00/9:30 pm. They were in private vehicle. He does not remember the registration number or the name of the owner. IO was carrying IO kit with him and his laptop. He did not make any DD entry while leaving the police station and on arrival.
110. During cross-examination on behalf of accused Sagar he stated that the distance between PS: Narela and PS:
Gohana is about 50 kms. HC Rajender drove the vehicle to PS: Narela from PS: Gohana. He does not remember if ignition key of the car was available in the car or not. He does not remember how the car was started for bringing it to the PS: Gohana. They reached PS: Gohana at about State Vs. Yadvender etc. SC NO:455/17 56 5:00/5:30 pm. Crime team was also with them. He denied the suggestion that Sagar was detained about 4-5 days before 15.04.2017.
111. On 16.04.2017 they returned to PS: Narela after concluding the proceedings at about 9:30 pm. Informer passed on the information to the IO at about 4:30 pm on Alipur road. Accused Sagar was noticed by them after about 45 minutes of receiving information. They all were in police uniform. Informer pointed out the accused from a distance of about 20 to 30 steps. They apprehended the accused while he was passing by near them. It took them half an hour in concluding the arrest proceedings. The distance between the place of arrest of accused Sagar and PS: Narela is about 5 to 6 k.m. It took them an hour in recording disclosure statement of accused Sagar. Accused pointed out the place of first dropping at 7:45 or 8:00 pm. They were in Govt. vehicle. The distance between police station Narela and the first dropping point is about 7 to 8 km. The distance between the first dropping and the place where dead body was found is about 9 to 10 km. They reached at about 9 pm at the place where dead body was thrown as pointed out by accused Sagar. He stated that he cannot say if the screw driver like PW29/Article1 are easily available in the market.
112. During cross-examination for Yadvender Kadyan he State Vs. Yadvender etc. SC NO:455/17 57 stated that on 17.04.2017 the CCTV footage was not taken from the Star Telecom. Local police was informed before reaching the shop of Star Telecom. He cannot tell the DD number recorded at PS: Gohana about the arrival. No nearby shopkeepers joined the investigation despite the request.
113. He does not know if the IO gave information in PS:
Narela regarding the information received qua accused Vicky. Photographs of the place of apprehension of accused Yadvender @ Vicky were not taken. No site plan of place of arrest was prepared. The secret informer passed on the information at about 7 pm. Accused was apprehended at about 8 pm. No public person could be joined at the time of arrest of accused. He denied the suggestion that accused was called in the police station regarding interrogation in the present case or that he was falsely arrested. He denied the suggestion that signature of accused were taken forcibly on certain blank papers and later on those papers were manipulated by the IO.
114. On 17.05.2017 the local police from Gurugram was not joined. Public witnesses were asked to join at the time of pointing out but none agreed. On 17.05.2017 they also visited the house of Manisha at about 4:00 pm. IO did not record the statement of any family member of Manisha at Bawana.
State Vs. Yadvender etc. SC NO:455/17 58
115. On 18.05.2017 they left the police station at about 10:00 am. IO made the departure entry. The distance between the PS: Narela and village Kasaundi Sonepat is about 50 kms. It took them 1½ hours to reach. They did not join the local police at the time of pointing out. He denied the suggestion that accused was not taken any where on 18.05.2017 or that all the proceedings were conducted while sitting in the police station. At the time of pointing out by accused Yadvender no exhibits / finger prints or chance prints were lifted. He denied the suggestion that on 19.05.2017 they did not visit the shop of Sukhdev at Gohana or that no DVR was sealed.
116. During cross-examination for accused Amit @ Uttam he stated that on 17.04.2017 they left the police station at about 5:00/ 5:15 am. They reached Gohana in his Santro car. IO stayed in PS: Gohana for about 10 to 15 minutes. From police station they reached the house of Amit in 10-15 minutes. They stayed at the house of Amit @ Uttam for about 10-15 minutes. The house of Amit is built upto first floor. There are houses on both sides of house of Amit. IO went inside the houses of neighbours to request them to join the investigation. The shop of Star Telecom is at the distance of about 2-3 km from the house of accused Amit. They reached Star Telecom at about 8:00 am and remained there for 30 State Vs. Yadvender etc. SC NO:455/17 59 minutes. From the shop of Sukhdev they went to the house of accused Amit @ Uttam and arrested him. They remained there for about 30 to 45 minutes.
117. Inspector Jarnail Singh was examined as PW-39. He deposed that on 31.03.2017 an information was received that one person is lying unconscious at Chinayak road to Bawana road. He along with his staff reached opposite Shivam Garden Bawana road where one male dead body was lying. The blood was found on the head of the body. SI Parmod along with Ct. Hemraj and other staff met him. Crime team was called at the spot. SI Parmod conducted the further proceedings. On 15.04.2017 he conducted the investigation in this case and corroborated the testimony of PW-15 and PW-38 with respect to bringing the car back and seizure of danda. He corroborated the testimony of PW-29 regarding arrest of accused Sagar. The pointing out made by him and the recovery of the screw driver. He corroborated the testimony of PW-27 and PW-38 with respect to the seizure of Vivo mobile phone, arrest of accused Amit, the seizure of pendrive. He also corroborated the testimony of PW-29 with respect to pointing out by accused Sagar of the field where the clothes were burnt and the seizure. He corroborated the testimony of PW-35 and PW-38 with respect to the arrest of accused Mohit and the pointing out made by him. Thereafter, State Vs. Yadvender etc. SC NO:455/17 60 he also corroborated the testimony with respect to the seizure of wallet of the deceased at the instance of accused Mohit. He corroborated the testimony of PW-35 and PW-38 about the places pointed out by accused Mohit. He corroborated the testimony of PW-38 regarding arrest of accused Yadvender @ Vicky and the pointing out made by him. He identified the accused persons. He sent the exhibits to FSL. He sent the documents to finger print bureau for comparison of the finger prints along with the specimen finger prints of accused persons. He collected the movement report of the car from the OLA company. He sent the DVR and pendrive to FSL, collected the FSL results Ex.PW32/A and Ex.PW39/D. He collected the original Bill of the mobile set from Ankit Kumar on 28.08.2017 vide memo Ex.PW39/E. The bill is Ex.PW39/F. On 02.09.2017 Rahul came to the police station and handed over the mobile phone set make Intex which was seized vide memo Ex.PW39/G. He identified the case property.
118. During cross-examination on behalf of accused Yadvender Kadyan he stated that he does not remember if he made any departure entry when he left for the spot on 31.03.2017. He reached the spot in Govt. Gypsy. He left the police station at about 6:15 am and reached the spot at about 6:45 am. Crime team was called through wireless set State Vs. Yadvender etc. SC NO:455/17 61 at about 7:00 am. He does not remember when the crime team reached the spot. The investigation of the present case remained with Inspector Rajender Singh from 31.03.2017 till 14.04.2017.
119. He made the departure entry on 15.04.2017 while leaving for PS: Sadar Gohana. He also made arrival entry in PS: Sadar Gohana. Ct. Naveen of the crime team was with them. He denied the suggestion that Ct. Naveen did not accompany them to PS: Sadar Gohana. He admitted that his signatures is not on the seizure memo of aforesaid vehicle. He did not obtain the CCTV footage of PS: Sadar Gohana regarding their visit. He did not record the proceedings in camera regarding inspection of the vehicle by the crime team. The aforesaid vehicle was seized by HC Anwar of PS:
Gohana. He did not visit the place from where vehicle was seized. The door of the vehicle were not found locked but the same were found closed. There was no ignition key in the ignition of said vehicle. The duplicate key of the said vehicle was got prepared through Malkhana moharrar. He does not know if the aforesaid vehicle was on CNG or petrol.
120. On 17.04.2017 when they visited the shop of Sukhdev Singh no local police official accompanied them. They visited the local police station and made arrival entry. He recorded the statement of Sukhdev only once. He does not know on State Vs. Yadvender etc. SC NO:455/17 62 which date he obtained the DVR. The pendrive from Sukhdev was obtained on 17.04.2017. No public person was asked to join investigation at the time of seizure of DVR, Pendrive and mobile phone.
121. He did not inform police station Narela regarding the information received about accused Yadvender. He did not ask the public persons to join the investigation at the time of arrest of accused Yadvender. TIP of accused Yadvender was not got conducted from Sukhdev.
122. During the period investigation remained with him he did not call Kavita, Pradeep and Pintu and also did not record their statements. He denied the suggestion that they were the real culprits or that in connivance with them he falsely implicated the accused persons. He admitted that mother of deceased lodged the complaint against Kavita, Pardeep and Pintu prior to death of accused in this case. He does not know if the deceased was habitual offender.
123. During cross-examination for accused Sagar. He stated that he left the police station in the after noon on 15.04.2017 and directly reached PS: Sadar Gohana. He cannot tell the exact time when they reached PS: Gohana but it was evening hours. The vehicle was brought to PS:
Narela through HC Rajender who reached PS: Narela at about 4:00 pm. He denied the suggestion that accused State Vs. Yadvender etc. SC NO:455/17 63 Sagar was already in custody prior to 16.04.2017 or that chance prints of accused were manipulated or that no chance prints were on the vehicle. He denied the suggestion that accused was made to put his hand on the mirror of the vehicle and glasses. He denied the suggestion that grand father of Sagar and other relatives met him on 15.04.2017 at Bhorgarh chowki. He did not move any application before any court for taking finger prints of accused after arrest.
124. On 16.04.2017 they left police station at about 4 pm for investigation. The distance between PS: Narela and Shahpur Garhi is about 6 to 7 km. The secret informer pointed out the accused from a distance of about 50 meters.
They were in uniform. It took them one or one and a half hour in conducting the proceedings. After arresting the accused they returned to the police station. They remained in the police station for about an hour and thereafter again left for investigation. There is a distance of about 8 to 10 km in between the first dropping point and the place where dead body was thrown. It took them half an hour in conducting the proceedings at the first dropping point. They reached the second point via Bhorgarh village. He admitted that there is railway crossing between first dropping point and second point. He denied the suggestion that there is no street light where the dead body was found. He denied the suggestion State Vs. Yadvender etc. SC NO:455/17 64 that chance prints comparison report is forged and fabricated or the same was manipulated by him. He denied the suggestion that FSL team was not called intentionally for lifting the chance prints. He denied the suggestion that the screw driver was planted in order to falsely implicate the accused.
125. During cross-examination for accused Amit he stated that he visited the house of Amit twice on 17.04.2017 and the other date he is not able to remember. They visited only one house of Amit in Gohana which was pointed out by accused Sagar. They visited the house of Amit in the morning hours. They were in Govt. Gypsy. They stayed for about 15-20 minutes in the house where Amit met them. One or two other persons were also present at the house of Amit. House of Amit is constructed upto one storey. There were other houses on both sides of house of Amit and also opposite the house of Amit. He does not remember if there are houses in the back lane of house of Amit.
126. On 17.04.2017 they reached the shop of Sukhdev in noon hours. They stayed at the shop of Sukhdev for about 30 to 40 minutes. Sukhdev used to maintain a register for sale - purchase of mobile. They did not seize the register and photocopy of the register. He does not remember if they directly returned from the shop of Sukhdev or went State Vs. Yadvender etc. SC NO:455/17 65 somewhere else. He denied the suggestion that he did not visit the house of Amit on 17.04.2017. He denied the suggestion that Voter ID card of Amit was planted on the accused or that the same was not given by Sukhdev on 17.04.2017.
127. During cross-examination for accused Mohit he stated that on 15.04.2017 they reached Gohana in the evening but he does not remember the time. He does not remember if he signed the seizure memo of the car which was collected from PS: Sadar Gohana. He does not remember if any chance prints were lifted by the crime team from the danda and the steering wheel of the car.
128. On 08.05.2017 they left the police station in afternoon after making departure entry. They were in Govt. Gypsy. They reached Singhu border at about 4 pm. He was carrying the IO kit with him. He requested the public persons to join the investigation but none agreed. There were many shops near the place of apprehension. First of all HC Sunil apprehended the accused. Writing work was done while sitting on the benches on the left side of the toll. They remained at Singhu Border upto 7 pm. He did not record the statement of Krishan and Surender Banwala in this case. TIP of Intex mobile was not got conducted by him.
129. D.S. Paliwal, Sr. Scientific Officer Biology was State Vs. Yadvender etc. SC NO:455/17 66 examined as PW-40. He conducted the biological examination and DNA examination on the exhibits in this case and he proved his report as Ex.PW39/D. The allelic data chart is proved as Ex.PW40/B and Ex.PW40/C.
130. During cross-examination on behalf of the accused persons he denied the suggestion that he did not examine the exhibits or that he received the exhibits in unsealed condition.
131. Rahul was examined as PW-41. He deposed that on 31.03.2017 he was taking morning walk and running on Auchandi road. When he reached near Bawana near the road he saw a white colour mobile phone lying in the grass. He picked up the said mobile phone make Intex killer which was without cover and battery. It was having the sim in its slot. He took the mobile phone to his house and removed the sim. He handed over the sim to his friend Ankit. His friend Ankit had purchased a new phone on that day and inserted the said SIM in that phone. After the sim was inserted in the phone repeated calls were coming. The call was attended by his friend Ankit as the calls were repeatedly coming therefore he removed the sim from that phone. The said sim was broken by them and thrown. Next day again he went for the morning walk. He again reached the place where he found the mobile phone Intex killer. He searched for the cover and State Vs. Yadvender etc. SC NO:455/17 67 battery of the mobile phone and the same were found at some distance. He picked up the cover and battery of the phone. He came to his house and place the cover and battery in the mobile phone. Thereafter, he went to his village Mugalpur where he inserted the SIM No.8750376260 which was in the name of his mother Asha Rani. On 02.09.2017 police came to his house and took in possession the mobile phone Intex Killer vide memo Ex.PW39/G. He identified the mobile phone as Ex.PW41/Article1.
132. During cross-examination by the defence he denied the suggestion that mobile phone was not recovered in the manner and and place as deposed by him.
133. Ankit was examined as PW-42. He corroborated the testimony of PW41.
134. During cross-examination he denied the suggestion that he is deposing falsely at the instance of IO.
135. Thereafter, prosecution evidence was closed. Statement of accused persons recorded u/s 313 Cr.PC wherein they denied the entire evidence. Accused Sagar wish to lead evidence in defence and thereafter the case was fixed for defence evidence.
136. Inder Singh was examined as DW-1. He deposed that on 13.04.2017 at about 6 pm some children of his village told him that police had picked up his grandson Sagar. On the State Vs. Yadvender etc. SC NO:455/17 68 same day he went to police chowki of his village and inquired about his grandson. Police told him that they does not know about Sagar. On 14.04.2017 at about 7 pm police of PS:
Narela informed him on phone that they had arrested Sagar. Thereafter, on 15.04.2017 he along with his brother Raghubir Singh came to PS: Narela but police officials of PS: Narela sent them to Bhorgarh police chowki where they met Sagar.
137. During cross-examination by the Ld. Addl. PP for the State he stated that father of Sagar used to take ponds on lease for fisheries. He suffered a loss in his business of Rs.7,00,000/-to 8,00,000/- . He has retired as Subedar from the Army. He does not know the name of the child who informed him that Sagar had been taken away by the police. The said child did not inform him that the police officials were of Haryana or Delhi. He went to the police chowki of his village where he was informed that they have no information of arrest of any boy namelly Sagar. Thereafter, they went to PS: Gannaur. They were also not having any information about Sagar. Neither he nor any other family member informed in writing at police post of their village or at Police station Gannaur or PS: Narela regarding the said fact. The mother of Sagar told him that Sagar was taken away by the police on 13.04.2017. He does not know if there was any case against Sagar prior to this case.
State Vs. Yadvender etc. SC NO:455/17 69
138. In reply to the court question that : Does he know any friend of his grandson? He stated No. In another court question was put to him as to where was his grandson between 13.03.2017 to 31.03.2017 and he stated that he does not know.
139. Thereafter, the defence evidence was closed and the case was fixed for final arguments.
140. I have heard. Ld. Addl. PP for the State, Ld. Defence counsel for accused persons and perused the record.
141. In the present case, there is no ocular evidence. The case is based upon circumstantial evidence. The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 has laid the following principles on the basis of which a convict can be held guilty in the absence of ocular evidence 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 State Vs. Yadvender etc. SC NO:455/17 70 in all human probability the act must have been done by the accused.
142. The prosecution in order to prove its case intend to establish the following circumstances:
i). Booking of car number HR 55 AA 4231 by
Yadvender Kadyan.
ii). Recovery of screw driver, the weapon of offence.
iii). Recovery of wallet and documents of deceased.
iv). Recovery of finger prints in the car number HR 55
AA 4231.
v). Pointing out of place where they have burnt their
(accused persons) clothes.
vi). Pointing out of the place of throwing the dead
body.
vii). Pointing out of the place of abandoning of car.
viii). Pointing out of the place of first dropping and then again boarding the car.
ix). Extra judicial confession (PW-12 Sombir)
143. I take up the circumstances one by one.
Booking of car number HR 55 AA 4231 by Yadvender Kadyan:
144. Ld. Addl. PP has submitted that in this case as per the complaint of Smt. Rajan Devi Ex.PW24/A, her son Sanjay State Vs. Yadvender etc. SC NO:455/17 71 was driver of car no. HR55AA 4231. This car was owned by Kiran and taken on lease by Ola company. Sh. Anupam Singh from Ola company, who was examined as PW28 deposed that on 31.03.17, one customer whose name is Moxx Kadyan vide telephone number 9205127677 booked the vehicle for going to Bakoli crossing, Bakoli, Delhi from 523/21, Delhi Jaipur Expressway, Shanti Nagar, Sector - 11, Gurugram, Haryana. According to the details collected from the company Ex.PW28/E, Sanjay picked up Moxx from the above said address at 1:24:46 hours on 31.03.17 and dropped at Bakoli at 03:04:01 hours at Bakoli crossing, Bakoli. Ld. Addl. PP further submitted that on the same day Moxx Kadyan again booked the cab. The pick up point was Kham Pur village, Delhi and to be dropped in Bhorgarh, Narela. Sanjay (deceased) was asked to attend this call. Sanjay picked the customer at 03:34:47 hours and dropped him in Bhorgarh, Narela at 03:56:44 hours. Ld. Addl. PP submitted that call detail record and other details of mobile phone number 9205127677 were collected. The mobile phone number was issued in the name of Manisha from Kiran Telecom on 25.03.17. The prosecution has examined PW11, the owner of the shop in this regard. Manisha handed over this mobile phone number to Yadvender Kadyan with whom she was having friendship. Manisha has State Vs. Yadvender etc. SC NO:455/17 72 been examined as PW16. The customer application form has been proved as Ex.PW16/A. The call detail record of mobile phone number 9205127677 has been proved on record as Ex.PW19/A. This record shows that the above said mobile phone number was used from the mobile phone having IMEI no. 8638820328330. The certificate under Section 65 Evidence Act is proved as Ex.PW19/B. There is nothing on record to disbelieve or discredit the testimony of PW19. Ld. Addl. PP has submitted that mobile phone having IMEI no. 8638820328334 and 86388203283326 is Ex.PW27/Article - 1 was seized from Sukhdev Singh running a shop by the name of Star Telecom at Civil Road, Gohana, Sonipat, Haryana. Sh.Sukhdev Singh has been examined as PW27. He has identified accused Amit @ Uttam and Yadvender @ Kadyan as the persons who sold mobile phone Ex.PW27/Article -1 to him on 05.04.17 for a sum of Rs.8,000/-. Ld. Addl. PP has submitted that prosecution has examined four witnesses to prove the recovery of this mobile phone i.e. PW27 Sukhdev Singh, PW29 HC Anjeev, PW38 SI Avdesh and Inspector Jarnail Singh as PW39. All the four witnesses are consistent. They all corroborated each other and proved that Sukhdev Singh produced the mobile phone Ex.PW27/Article - 1 which they seized vide memo Ex.PW27/C. Efforts were made to join the neighbouring State Vs. Yadvender etc. SC NO:455/17 73 shopkeepers but none agreed. Ld. Addl. PP has submitted that as there is already one public witness Sukhdev, who has fully supported and corroborated the testimony of PW29, PW38 & PW39 therefore non joining of any other public witness does not in any manner cast any shadow of doubt on the credibility and trustworthiness of police witnesses and also the recovery. Ld. Addl. PP has submitted that testimony of these four witnesses PW27, PW28, PW38 & PW39 clearly shows that this mobile phone was sold by Yadvender and Amit to Sukhdev which was ultimately recovered and also points that infact Yadvender was using this mobile phone. It was he, who booked the Ola cab i.e. Honda Amaze car having number HR55AA 4231 on 31.03.17. Ld. Addl. PP has submitted that onus which was on the prosecution has full been discharged. The circumstance shows that it was accused Yadvender Kadyan who booked the car driven by Sanjay and thereafter, no one had seen Sanjay alive. Ld. Addl. PP has submitted that circumstance points towards the guilt of the accused and at the same time is in consistent with any hypothesis of innocence of accused.
145. Ld. Defence counsel submitted that onus was upon prosecution to prove that it was Yadvender Kadyan who booked the cab for going firstly from Gurgaon to Bakoli and then from Bakoli to Narela. According to the booking State Vs. Yadvender etc. SC NO:455/17 74 documents produced by OLA company and proved by Sh. Anupam Singh PW-28 the cab was booked by one Moxx Kadyan from mobile phone No.9205127677. According to the evidence collected this mobile phone is in the name of Manisha. Manisha has been examined as PW-16. She specifically stated that she has not handed over this mobile phone number to Yadvender Kadyan and she does not know any Yadvender Kadyan. There is another witness Sombir he also stated that this phone number does not belong to Yadvender Kadyan. Even the record does not say that the booking was done by Yadvender Kadyan. The booking is done by some Moxx and there is no evidence on record that Yadvender is also known as Moxx. Ld. Counsel submitted that under the circumstances it is not proved and established that this mobile phone No.9205127677 was used by accused Yadvender Kadyan as alleged by the prosecution.
146. Ld. Counsel further submitted that so far as the recovery of the mobile phone Ex.PW27/Article1 is concerned Sukhdev is not reliable as he initially stated that he cannot identify the other boy accompanying Amit but in the later part he pointed towards Yadvender saying that at the time he purchased that mobile phone they were clean shaven but today they are having beard. This clearly shows that he is not sure if the person towards whom he is pointing is the same State Vs. Yadvender etc. SC NO:455/17 75 person who sold the mobile phone. Ld. Counsel further submitted that in this case the best evidence was the CCTV footage as the witness himself stated that he handed over that footage to the police. But the pendrive could not be run on the computer despite efforts and in the DVR according to the result no data was found. Under the circumstances it is clear that there is no CCTV footage to support and show that it was Yadvender Kadyan and Amit who sold this mobile phone to Sukhdev PW-27. At the time of seizure also no public witness has been joined. There are only 3 police witnesses i.e. HC Anjeev PW-29, SI Avdhesh PW-38 and Inspector Jarnail Singh PW-39. Ld. Counsel submitted that in the absence of CCTV footage non joining of public witnesses the recovery of the mobile phone itself is doubtful. Even witness has failed to identify Yadvender. Ld. Counsel further submitted that even according to PW-27. He was maintaining one register regarding sale and purchase of the mobile phone. That register or the copy of the same also not been seized by the IO. There is one photocopy of the Aadhar card Ex.PW27/A which according to the witness PW-27 the accused has given at the time of sale of mobile phone to him. But the same is not legible. It cannot be made out from that document that it is of Amit. Ld. Counsel submitted that infact no such recovery was effected and the documents have State Vs. Yadvender etc. SC NO:455/17 76 been planted. The photograph on the document is also not legible. It is prayed that keeping in view all these facts the benefit of doubt be given to the accused persons and they be acquitted.
147. Ld. Counsel for Amit submitted that there is no evidence on record that Amit has any connection with the mobile phone and why he will sell the mobile phone. The document Ex.PW27/A i.e. the photocopy of the Aadhar card is not legible at all and it cannot be said that it is in the name of Amit S/o Sh. Bhagwan Dass. Even this does not say that he sold this mobile phone as the register in which PW-27 used to make entries regarding sale and purchase has not been produced. The CCTV footage has also not been proved. It is also not been proved that the writing on this PW- 27/A is of Amit. The onus was upon the prosecution to prove and establish this fact which the prosecution has failed.
148. After hearing the arguments and going through the record in my opinion it was for the prosecution to establish that the cab was booked by Yadvender Kadyan and that this mobile phone was being used by Yadvender Kadyan. According to the data i.e. Ex.PW28/E. The car was booked from mobile phone No.9205127677. According to the record it was the car No.HR 55AA 4231 driven by Sanjay who picked up the passenger. The customer detail record shows State Vs. Yadvender etc. SC NO:455/17 77 that the person who booked the car was using the name Moxx and the mobile phone number was 9205127677. The call detail record of this mobile phone number and the customer application form Ex.PW16/A shows that it was issued in the name of Manisha. Mohan was examined as PW-11 who stated that he sold the SIM of the mobile phone No.9205127677 to Manisha on 25.03.2017. Manisha PW-16 also admitted that she purchased this mobile phone number but she stated that she does not know any Yadvender Kadyan and she had not handed over this mobile phone number to Yadvender Kadyan. There is another witness Sombir examined as PW-12. He also does not support the prosecution case that mobile phone No.9205127677 was used by Yadvender Kadyan or that he used to talk with Yadvender Kadyan on this mobile phone number. There is no other evidence to show that this phone was used by Yadvender Kadyan. The onus was upon the prosecution to prove and establish this fact which the prosecution has failed.
149. So far as the recovery of mobile phone is concerned there are 4 witnesses i.e. PW-27 Sukhdev, PW-29 HC Anjeev, PW-38 SI Avdhesh and PW-39 Inspector Jarnail Singh. All these four witnesses specifically stated and corroborated each other on the point that the mobile phone State Vs. Yadvender etc. SC NO:455/17 78 make Vivo Ex.PW27/Article1 was seized from the shop of Sukhdev PW-27. It was seized vide memo Ex.PW27/C. The IMEI number of the mobile phone are 86388203283330 and 86388203283320. According to the call detail record Ex.PW19/C the mobile phone No.9205127677 was being used from the mobile phone having IMEI NO.86388203283330 i.e. the mobile phone which was recovered from the shop of Sukhdev is the same in which mobile phone No.9205127677 was used and the OLA cab was booked, driven by Sanjay.
150. From the testimony of Sukhdev it is clear that it was Yadvender Kadyan and Amit who sold this mobile phone to him on 05.04.2017. There is nothing on record to disbelieve the testimony of Sukhdev. All the witnesses PW-27, PW29, PW-38 and PW-39 are consistent, corroborated each other and have stood through the test of cross-examination to establish the recovery of this mobile phone. According to PW-27 Amit had also handed over his ID i.e. the photocopy of the Aadhar card at the time of selling the mobile phone to him. This Aadhar card is in the name of Amit S/o Sh. Bhagwan Dass showing the date of birth as 04.02.1990 and is resident of Tehsil:Gohana, Distt. Sonepat, Ward No.16, H.No.138. No doubt the photograph on the same is not visible. From this evidence it is clear that the mobile phone State Vs. Yadvender etc. SC NO:455/17 79 was sold by Amit to Sukhdev and Yadvender was also with him, but the onus was upon the prosecution to show and prove that it was Yadvender Kadyan who was using this mobile phone and booked the OLA cab having registration No. HR 55AA 4231 that onus has not been discharged and merely because this mobile phone was sold on 05.04.17 to Sukhdev PW-27 does not by itself prove and establish that Yadvender Kadyan was using this mobile phone on 31.03.2017 and he booked the OLA cab. No doubt there is no explanation by Yadvender Kadyan and Amit as to how they got in possession of this mobile phone but still no such inference can be drawn merely on the basis that they had not explained as to how they got in possession of the same, as the incident is of the night of 30.03.17 and 31.03.17 whereas the mobile phone has been sold on 05.04.17. Under the circumstances in my opinion the onus which was on prosecution has not been discharged and the circumstance is not established.
Recovery of Screw driver the weapon of offence:
151. Ld. APP submitted that on 16.04.2017 accused Sagar @ Sarkar @ Langra was arrested from Shahpur Garhi, Alipur Road, Narela at about 6 pm on the secret information.
Information about his arrest was given to Inder Singh his grandfather. Prosecution has examined HC Anjeev PW-29, State Vs. Yadvender etc. SC NO:455/17 80 SI Avdhesh PW-38 and Inspector Jarnail Singh PW-39 to prove and establish his arrest. Accused made the disclosure statement Ex.PW29/C confessing about his crime and thereafter, he led the police team to the place where the dead body was thrown by them. At some distance from that place accused got recovered the screw driver Ex.PW29/Article1. The sketch of the screw driver was made which is Ex.PW29/F. There were blood stains on the screw driver. The handle of the screw driver is of green colour plastic. It was put in a plastic box sealed with the seal of JS and seized vide memo Ex.PW29/J to prove the recovery prosecution has examined three witnesses HC Anjeev PW- 29, SI Avdhesh PW-38 and Inspector Jarnail Singh PW-39. All the witnesses have stood through the test of cross- examination they all prove and establish that this screw driver Ex.PW29/Article 1 was got recovered by accused Sagar from near the place where dead body was found. The three witnesses are consistent, they have corroborated each other and there is nothing on record to disbelieve their testimony. This screw driver was also sent to FSL for analysis and the blood was detected on this screw driver.
152. Ld. APP submitted that this is the weapon of offence used for committing the murder of Sanjay by hitting on the back of his head. This recovery is effected at the instance of State Vs. Yadvender etc. SC NO:455/17 81 accused Sagar. This recovery itself proves the involvement of the accused in the commission of crime i.e. why he was knowing where that weapon of offence is lying and got it recovered. The three witnesses examined are consistent, they have stood through the test of cross-examination. No public witness was available there and therefore could not be joined despite efforts. Ld. Counsel submitted that even otherwise the three witnesses are reliable, trustworthy and inspires confidence therefore, merely because no public witness has been joined their testimony cannot be discarded. All the three witnesses have proved and established the recovery of the screw driver at the instance of accused Sagar beyond doubt. This circumstances points towards the guilty of the accused and also inconsistent with any hypothesis of innocence of the accused. Ld. APP submitted that on the basis of this circumstance the accused be held guilty.
153. Ld. Defence counsel submitted that the onus was upon the prosecution to prove and establish this fact that this screw driver was got recovered by Sagar which the prosecution has failed. Non joining of public witnesses itself creates doubt regarding the alleged recovery. The witnesses stated that the public persons were available there but no efforts whatsoever was made to join them at the time of recovery. Even the prosecution witnesses proved and State Vs. Yadvender etc. SC NO:455/17 82 establish that this recovery was not effected from that place. Infact according to these three witnesses PW-29, PW-38 and PW-39 this recovery was effected from the place where the dead body was found. Ld. Counsel submitted that on the day the dead body was found i.e. on 31.03.2017 the IO of the case and also the crime team must have inspected the area around the place where dead body was found thoroughly to find out if there is any other incriminating evidence found there. If this screw driver Ex.PW29/Artice-1 would have been there they must have found it. But it was not there infact it was lying in the car HR 55AA 4231 and that is why it was not recovered from that place by the police on the day dead body was recovered.
154. PW-26 is none else but the real brother of the deceased and he specifically stated in the examination-in- chief itself that in the car screw driver was also lying and he also stated that the screw driver was of green colour that is the colour of screw driver Ex.PW29/Aricle1. This testimony of PW-26 exposes the entire investigation that infact the case property has been planted upon the accused persons to falsely implicate them. This screw driver was taken out from the car and planted upon Sagar. PW-26 even stated that police asked him not to touch these articles. Ld. Counsel submitted that no finger prints were lifted from this screw State Vs. Yadvender etc. SC NO:455/17 83 driver as the investigating agency was knowing that the finger prints will not tally. The screw driver was also sent to FSL. The report of the FSL is proved on record as Ex.PW39/D and the alleli chart are proved as Ex.PW40/A, Ex.PW40/B and Ex.PW40/C. The DNA isolated from the screw driver does not match with the DNA of the deceased. It is prayed that under the circumstances the benefit be given to the accused.
155. After hearing the arguments and going through the record I found that so far as the scientific evidence is concerned it shows that the blood was found on the screw driver Ex.PW29/Article1 which is referred as exhibit 7 in the report Ex.PW39/D and the allelic chart Ex.PW40/A. The DNA was isolated from the blood found on the screw driver and the DNA so isolated matched with the DNA of the deceased. The genotype chart clearly shows that the DNA isolated matched with the DNA of deceased. Therefore, it is clear that the blood found on the screw driver Ex.PW29/Article1 belongs to deceased.
156. The onus was upon the prosecution to prove that this screw driver was got recovered by the accused Sagar from near the place where the dead body was found. The prosecution alleges so but it does not inpsire confidence. Firstly, because the investigating agency must have State Vs. Yadvender etc. SC NO:455/17 84 searched thoroughly the area around the place where the dead body was found on the day i.e. 31.03.2017 itself when the dead body was recovered for any clue or the exhibit or the incriminating evidence. The witnesses also say so that they searched around the area where the dead body was found, but surprisingly on that day this screw driver was not found near the place where dead body was found and rightly because it was not there as deposed by PW-26 Harender. It is important to note here that it was Harender PW26 and his mother PW24 who informed the police that the car is lying there in abandoned condition and thereafter this car was taken to the police station by the police of PS: Gohana. The document in this regard has been proved as Ex.PW37/A. According to PW-37 HC Anwar he was informed on 02.04.2017 by the Munshi that a vehicle is parked abandoned on Saini pura Ramgarh road and he brought that car to the police station. PW-26 specifically stated that when they found the car in abandoned condition, the doors of car were lying open, the key was in the car. There was one danda inside the car on rear seat and one screw driver. One empty liquor bottle was also found in the said car and he stated that the screw driver was of green colour. The screw driver Ex.PW29/Article1 which prosecution alleges was got recovered by Sagar is also of green colour. This testimony of State Vs. Yadvender etc. SC NO:455/17 85 PW-26 demolishes the entire story of prosecution that Sagar got it recovered from near the place where dead body was found. Infact this screw driver was inside the car Ex. PW55/AA 4231 and lateron planted upon accused Sagar. Keeping in view this testimony of PW-26 I am of the opinion that the prosecution has failed to show that screw driver was recovered at the instance of Sagar. No doubt DNA isolated from the blood found on the screw driver matched with the DNA of the deceased but recovery itself is not proved. Hence, in my opinion the prosecution has failed to prove and establish the circumstance and the onus is not discharged. Recovery of wallet and documents of deceased:
157. Ld. APP submitted that in this case the other circumstance is the recovery of wallet having the voter ID card, Aadhar card, PAN card and driving license of Sanjay Ex.PW35/Article2. Ld. APP submitted that in this case accused Mohit was arrested on 08.05.2017 and on the same day he led the police team to the place i.e. where the dead body was found at some distance from the side of the road from the bushes he took out a red colour wallet Ex.PW35/Article-2 and handed over to the police. The documents found inside the wallet itself shows that it was of the deceased Sanjay. The wallet was seized vide memo Ex.PW35/G. Prosecution has examined two witnesses HC State Vs. Yadvender etc. SC NO:455/17 86 Sunil PW-35 and Inspector Jarnail Singh PW-39 to prove and establish this fact. Both the witnesses are consistent, corroborated each other, reliable and trustworthy. Ld. APP submitted that efforts were made by both the witnesses to join the public witnesses but none agreed. Ld. APP submitted that there is no such law or rule of prudence that the testimony of police witnesses cannot be relied upon unless corroborated by the public witness. Ld. APP submitted that as the two witnesses are trustworthy, reliable and inspires confidence the reliance on the same can be placed. The prosecution has proved and established this recovery of Ex.PW35/Article2 by examining these witnesses and prayed that this circumstance stands established. This recovery of the wallet and the cards of the deceased at the instance of Mohit points towards his involvement in the commission of offence and prayed that he be held guilty.
158. Ld. Defence counsel submitted that the onus was upon prosecution to prove and establish this fact which the prosecution has miserably failed. Ld. Counsel submitted that there is no evidence to show that Mohit got recovered this wallet Ex.PW35/Article2 having the voter ID card, Aadhar card, Pan card and driving license of Sanjay. Ld. Counsel submitted that infact these documents were taken by the police from the family members of the deceased and planted State Vs. Yadvender etc. SC NO:455/17 87 upon the accused. No such recovery was effected at the instance or from the possession of accused Mohit. Public witnesses were deliberately not joined as no such proceedings have taken place. This non joining of the public witnesses itself creates doubt regarding the truthfulness of story of prosecution. Ld. Counsel submitted that onus which was on prosecution has not been discharged at all. Benefit of the same be given to the accused and they be acquitted.
159. After hearing the arguments and going through the record I found that this recovery is of 08.05.2017 i.e. after more than one month from the date of commission of offence. The incident took place on the intervening night of 30/31 March. On 31st March itself the dead body was recovered and entire team including SHO, Addl. SHO, the then IO and crime team reached the spot. They thoroughly inspected the scene of crime, even the crime team reached there and inspected the scene of crime, took the photographs. The witnesses also stated that they have thoroughly checked the area around the place where dead body was found. In my opinion if they had done so then they would have found this wallet also as according to the document Ex.PW35/G itself this wallet was found just ahead towards Bawana from the place where dead body was found in the bushes. This fact itself shows that infact no such State Vs. Yadvender etc. SC NO:455/17 88 recovery was effected. If the wallet would have been there, it would have been found by the police on 31.03.2017 itself and not on 08.05.2017 as deposed by PW-35 and PW-39.
160. The record also shows that this recovery is effected pursuance to the disclosure statement but still no public witness was joined. This also creates doubt about the alleged recovery as deposed by PW-35 and PW39. Keeping in view all these facts in my opinion this recovery itself is doubtful and is not proved beyond doubt. The onus is not fully discharged. Keeping in view all these facts in my opinion the circumstance is not established and proved beyond doubt.
Recovery of finger prints in the car number HR 55 AA 4231:
161. Ld. APP submitted that the other Important circumstance in this fact is that the chance finger prints were found in the car though chance finger prints were sent to Finger Prints Bureau for comparison. The report in this regard has been proved on record as Ex.PW18/A. Ld. APP submitted that this car HR 55AA 4231 was infact seized by HC Anwar PW-37 on 02.04.17 u/s 102 Cr.PC vide seizure memo Ex.PW37/A. The car was found abandoned on Saini Pura, Ramgarh road. On 15.04.2017 this car was inspected by Ct. Naveen PW-3 from the mobile crime team, finger print State Vs. Yadvender etc. SC NO:455/17 89 expert for any chance prints, in the compound of PS: Sadar Gohana. Ct. Naveen PW-3 found 4 chance prints 2 from the centre mirror and two from the left side back window of the car which he developed using the black powder and lifted the same with the help of the tape. The chance prints were sent to the Finger Prints Bureau, Kamla Market where the same were examined by Subhash Chandra. He proved his report as Ex.PW18/A. According to the result and the report chance print mark Q4 was found identical with the right ring finger impression of accused Sagar s/o Sh. Sulesh Kumar which were found in the record of the bureau. Chance print mark Q2 is partial and smerged and does not disclose sufficient number of raises details in their related position for comparison. Chance prints Q1 and Q3 are found identical with the right thumb and right middle finger impression of Sagar S/o Sh. Sulesh Kumar. Ld. APP submitted that this recovery of the chance prints from the vehicle HR 55AA 4231 of accused Sagar clearly links him with the commission of offence and that he was inside the car and was involved in the commission of crime and that is why the chance prints were there in the car. Ld. APP submitted that this circumstance stands proved by examining PW-3 Ct. Naveen who lifted the chance prints and the other three witnesses with him he had gone there i.e. HC Rajender examined as State Vs. Yadvender etc. SC NO:455/17 90 PW-15, SI Avdhesh examined as PW-38 and the IO PW39.
All these witnesses stated that on 15.04.2017 they went to police station Sadar Gohana. There they found the car parked. The car was inspected and PW-3 lifted the chance prints. The fact that they visited the police station Gohana on 15.04.2017 is further supported by the statement of Ct. Dal Singh PW-13 who stated that on that day they came there and he handed over the car to them. Ld. APP submitted that this circumstance of finding the finger prints point towards the guilt of the accused and is in consistent with any hypothesis of innocence of the accused. There is no explanation coming forward from the accused as to how his finger prints came in the car. Ld. APP submitted that infact accused Sagar was there. He committed the offence of murder and i.e. why his finger prints were there in the car. Ld. APP submitted that the onus has been discharged and the circumstance stands proved.
162. Ld. Defence counsel submitted that this car was seized on 01st April and not on 02nd April as deposed by PW- 26 and was brought to the police station on that very day. Infact police had not done anything with respect to this car because there was no evidence found in the car but lateron the police planted the entire evidence as like screw driver. When Sagar was apprehended on 13.04.2017 as deposed State Vs. Yadvender etc. SC NO:455/17 91 by Inder Singh, thereafter, he was made to touch the car so that finger prints can be lifted and accordingly the finger prints were taken from the car. Ld. Counsel submitted that there is no explanation as to why car was not brought earlier to Delhi or was inspected at first instance when it was seized. According to PW-26 on 01.04.2017 and according to HC Ajmer PW-37 on 02.04.2017. The only explanation is because by that time they were not having the accused whose finger prints they wanted to implant in the car and i.e. why no effort was made.
163. Ld. Counsel submitted that even the witnesses have contradicted each other as to when these finger prints or the car was inspected. Ct. Naveen PW-3 stated that they reached PS: Gohana at about 9 pm and inspected the vehicle.
164. According to HC Rajender Singh he returned to the police station Narela at 8:30 or 8:45 pm with the car. According to SI Avdhesh they reached PS: Sadar Gohana at about 5:00/5:30 pm and according to PW-39 also they reached PS:Gohana Sadar in the evening. If all this is to be believed then they are not consistent with each other. According to HC Rajender he had returned with the car at about 8:30/ 8:45 pm to PS: Narela. But according to PW-3 they reached there only at 9 pm and thereafter inspected the State Vs. Yadvender etc. SC NO:455/17 92 vehicle which is not possible and if Ct. Daal Singh is to be believed that is PW-13 he handed over the car to HC Rajender PW-15 at about 4:00 or 5:00 pm on 15.04.2017 vide RC No.60 Ex.PW13/A and immediately thereafter HC Rajender Singh took the car to PS: Narela. Ld. Defence counsel submitted that all these facts clearly show that infact no such inspection was carried out as deposed or as tried to be shown by the prosecution. Infact this car was brought to Delhi where the finger prints were planted by asking Sagar or compelling him to touch the car and thereafter the same were lifted and sent to finger print bureau. Ld. Counsel submitted that infact according to the record and according to the evidence of DW1 he was with the police on 13.04.2017 itself and before that the chance prints were not lifted though the car was available with them. This itself creates doubt about the story of the prosecution. Ld. Counsel submitted that infact all the witnesses are also contradicting each other and inconsistent benefit of the same be given to the accused and he be acquitted.
165. After hearing the arguments and going through the record I found that the prosecution has examined Ct. Naveen PW-3, Ct. Dal Singh PW-13, HC Rajender Singh PW-15, SI Avdhesh PW-38 and Inspector Jarnail Singh PW-39 to prove and establish the circumstance. As per the record and as State Vs. Yadvender etc. SC NO:455/17 93 deposed by PW-37 this vehicle was seized on 02.04.2017 which was lying abandoned on Saini Pura road however, PW-26 deposed that this car was taken to PS: Sadar Gohana on 01.04.17 itself. This itself creates doubt as to on which date this car was brought to the police station or was seized. However, both PW-26 as well as PW-37 are consistent that car was found abandoned. Now if we come to the date of 15.04.17 the car was lying unattended from 02.04.2017 as per PW-27 and as per PW26 from 01.04.2017 in the police station and there is no explanation as to why this car was not examined at the earliest to find out and pick up the valuable evidence from the car and why I.O. delayed the examination of the same upto 15.04.2017. The four witnesses examined have also contradicted each other according to Ct. Daal Singh PW-13 of PS: Sadar Gohana. He handed over the car to HC Rajender at about 4 or 5 pm on 15.04.2017 vide RC No.60 Ex.PW13/A and thereafter, HC Rajender Singh took the car to PS: Narela. He does not say the car was examined there. According to PW-15 HC Rajender Singh, PW-38 SI Avdhesh, PW-39 Inspector Jarnail Singh and PW-3 Ct. Naveen they inspected the car in PS:
Sadar Gohana. But they are also giving the different time. According to Ct. Naveen they reached PS: Gohana at about 9 pm and thereafter inspected the vehicle whereas if PW-13 State Vs. Yadvender etc. SC NO:455/17 94 is to be believed the car had already been taken away at about 4 or 5 pm. Even HC Rajender Singh does not support the testimony of PW-3. According to him they reached back to PS: Narela at about 8:30 or 8:45 pm. SI Avdhesh stated that they reached PS: Sadar Gohana at about 5 or 5:30 pm and they remained in police station for about 1 or 1½ hour meaning thereby that they must have left the police station Sadar Gohana at about 7 pm. Similarly according to PW-39.
They reached PS: Sadar Gohana in the evening and remained there for about 2 hours. If all the four witnesses are to be seen together then they are so inconsistent in the timing when they reached there and when the car was allegedly inspected. All this creates doubt about the fact as to whether this car was infact inspected by Ct. Naveen on 15.04.2017 in PS: Gohana that also after 9 pm as no other witness supports his this contentions. As earlier pointed out there is also no explanation as to why this car was not inspected or got examined for about 14 days continuously when it was lying there and was having valuable evidence inside i.e. there was one bottle of liquor, there was one danda and yes there was possibility of the finger prints also inside the car and then the blood stains. Neither the IO nor any other witness explains why there was so much delay. In view of the above discussion in my opinion keeping in view State Vs. Yadvender etc. SC NO:455/17 95 the contradictions in the testimony of PW-3, PW-13, PW-15, PW-38 and PW-39 it is not proved beyond doubt that the finger prints were found inside the car and the same were lifted on 15.04.2017.
166. So far as the contention that Sagar was already in the custody of police on 13.04.2017 as deposed by DW-1. I do not agree with this contention as PW-13 as no knowledge about this fact that his grandson i.e. Sagar was taken away by the police on 13.04.2017 his knowledge flows from the mother of accused Sagar who has not been examined as deposed by DW1 himself and also one more boy who has again not been examined. He is not witnessed to that fact. It is also important to note here that the specimen finger prints of accused were taken but those were not taken with the permission or in the presence of Magistrate and that also creates doubt about the procedure. As according to Prisoners Identification Act, 1920 it is required that the finger prints for the purposes of establishing identity be taken with the permission or in the presence of Magistrate. That procedure has not been followed. That also creates doubt regarding the truthfulness of all these facts. Keeping in view the above discussion in my opinion the onus which was on the prosecution has not been discharged and the circumstance is not established.
State Vs. Yadvender etc. SC NO:455/17 96 Pointing out of place where they have burnt their (accused persons) clothes:
167. Ld. Addl. PP has submitted that all the accused persons disclosed in their disclosure statements that their clothes were having blood stains after the commission of offence and therefore, theu need to destroy the same. They burnt the clothes in some field in the area of District Sonipat. Pursuant to the disclosure on 18.04.17 accused Sagar led the police team to the field of Surender Banwala situated in village Kasandi on road leading from village Kasandi to village Badhana, District Sonipat. There he pointed out towards ashes lying by the side of the small drain used for watering the field. The ashes along with two buttons were lifted from there, put in a plastic jar, sealed with the seal of JS and seized vide memo Ex.PW35/E. The prosecution in order to prove this pointing out and recovery examined HC Sunil PW35 and Inspector Jarnail Singh PW39. They both have corroborated each other and supported the prosecution case that Sagar pointed out that place and also got recovered the ashes.
168. Ld. Addl. PP further submitted that on 10.05.17 accused Mohit pointed out the same place vide pointing out memo Ex.PW35/J. Witness HC Sunil PW35 and Inspector Jarnail Singh PW-39 corroborated each other on the point State Vs. Yadvender etc. SC NO:455/17 97 and supported the prosecution case. On 18.05.17 accused Yadvender pointed out the same place vide pointing out memo Ex.PW9/A. Ld. Addl. PP has submitted that two witnesses i.e. Dheeraj Singh PW9 and and SI Avdesh PW-38 fully corroborated the prosecution story and each other and proved the pointing out. Ld. Addl. PP submitted that this circumstance points towards the involvement of the accused persons in the commission of offence. It also leads to the discovery of the place where they burnt their clothes after the commission of offence and recovery of ashes. All the witnesses have stood through the test of cross-examination. There is nothing on record to disbelieve or discredit them. The onus which was on the prosecution has been fully discharged. It is prayed that prosecution has established this circumstance which points towards guilt of the accused. Accused persons be held guilty and convicted.
169. Ld. defence counsels submitted that according to the statement of PW39 on 18.04.17 when Sagar pointed out that place which allegedly led to the recovery of ashes of the burnt clothes of accused persons, Anupam Singh PW28 and SI Avdesh PW38 were also with him but neither Anupam Singh PW28 nor SI Avdesh deposed that on 18.04.17 accused Sagar led them to the field of Surender Banwala in village Kasandi and from there he got recovered the ashes. State Vs. Yadvender etc. SC NO:455/17 98 Ld. Counsels submitted that the only independent witness has not supported the prosecution case on this aspect and this creates doubt about truthfulness of the story that Sagar pointed out that place and got recovered the ashes of the clothes. Ld. Counsels prayed that as the prosecution has failed to discharge the onus and circumstance is not established, therefore, the benefit be given to the accused persons. Ld. Counsels further submitted that so far as the alleged pointing out by Mohit on 10.05.17 and by Yadvender on 18.05.17 are concerned, police was already knowing that place and hence, it has not led to any recovery of material or discovery of a new fact. Ld. Counsels submitted that infact no such place been pointed out by any of the accused and they have been falsely implicated. It is prayed that as prosecution has failed to discharge its onus, the benefit be given to the accused persons.
170. After hearing arguments and going through the record, I found that in the present case according to the prosecution story on 18.04.17 accused Sagar pointed out the place where he and his co-accused burnt the clothes which they were wearing at the time of incident. According to the disclosure, the clothes have been burnt as there were blood stains on those clothes. That place has been pointed out vide memo Ex.PW35/A by accused Sagar. Accused Mohit State Vs. Yadvender etc. SC NO:455/17 99 pointed out that place vide memo Ex.PW35/J on 10.05.17 and Yadvender pointed out that place vide memo Ex.PW9/A. It is important to note here that according to PW39 on 18.04.17 witness Anupam Singh and SI Avdesh PW38 were also with him besides accused Sagar and HC Sunil PW35 when the accused pointed out that place of burning of clothes. Anupam Singh and SI Avdesh had not supported or even uttered a single word in this regard. This fact itself creates doubt regarding truthfulness of story of prosecution. PW35 also deposed that at the time of pointing out of that place and seizure of the ashes from the field of Surender Banwala, the owner of the field, was also there. The record shows that he is not a witness on the pointing out memo cum seizure memo. There is no explanation by the IO as to why Surender Banwala was not joined when he was present there. There is also nothing on record that Surender Banwala refused to join and similarly once Anupam Singh had already joined the investigation and accompanied them on 18.04.17, there is no explanation as to why he is not a witness on the pointing out cum seizure memo Ex.PW35/A. The ashes recovered i.e. Ex.PW35/Article - 1 and were sent to FSL for analysis. The report has been proved on record as Ex.PW39/D and according to this report, no blood was found in the Ex.PW35/Article - 1. There is also no record that State Vs. Yadvender etc. SC NO:455/17 100 ashes recovered i.e. Ex.PW35/Article - 1 was of the clothes. The onus was upon the prosecution, firstly, to prove that this place was pointed out by accused Sagar which in my opinion, prosecution has failed to prove as Anupam Singh PW28 and SI Avdesh PW38 did not support the prosecution case on this aspect and the owner of the field Surender Banwala was also not joined, through present on the spot.
171. So far as the pointing out by Mohit vide pointing out memo Ex.PW35/J and pointing out by Yadvender vide pointing out memo Ex.PW9/A is concerned, again there is no public witness joined. In fact, no efforts were made to join the public persons. Secondly, that place was already known to the police when it was pointed out by accused Sagar on 18.04.17. Therefore, in my opinion, this pointing out allegedly pointed out by accused Mohit on 10.05.17 and by Yadvender Kadyan on 18.05.17 has not led to any discovery of a new fact and therefore is of no consequence.
172. Keeping in view the above discussion, in my opinion, the onus which was on the prosecution has not been discharged and prosecution has not been able to prove/establish the circumstance beyond reasonable doubt. Pointing out the place of throwing the dead body
173. Ld. Addl. PP submitted that in this case accused persons have also pointed out the place where they have State Vs. Yadvender etc. SC NO:455/17 101 thrown dead body of Sanjay after committing the offence. Accused Sagar pointed out that place vide pointing out memo Ex.PW29/E on 16.04.17. The prosecution in order to prove his pointing out memo examined HC Anjeev PW29, SI Avdesh PW38 and Inspector Jarnail Singh PW39.
174. Ld. Addl. PP submitted that in this case accused Mohit also pointed out the place where dead body was thrown on 08.5.17 vide memo Ex.PW35/F. The prosecution has examined HC Sunil PW35 and Inspector Jarnail Singh PW39 who proved and established this fact.
175. Ld. Addl. PP submitted that accused Yadvender pointed out the place of throwing the dead vide pointing out memo Ex.PW38/E on 15.05.17 and prosecution in order to prove this fact examined PW38 SI Avdesh and PW39 Inspector Jarnail Singh. Ld. Addl. PP submitted that all the police witnesses have fully supported and corroborated each other. They have stood through the test of cross examination. They are reliable and trustworthy. No public witness could be joined despite making efforts. Ld. Addl. PP submitted that the testimony of police witness cannot be discarded simply due to the reason of non examining the public witness. Ld. Addl. PP submitted that this pointing out by accused persons vide memos Ex.PW29/E, Ex.PW35/F and Ex.PW38/E has led to the discovery of the fact as to where the dead body was State Vs. Yadvender etc. SC NO:455/17 102 thrown after committing the offence. Ld. Addl. PP submitted that this pointing out also shows the special knowledge of the accused persons about the place where the dead body was thrown. This circumstance points towards the guilt of the accused persons and is also inconsistent with any hypothesis of innocence of accused persons.
176. Ld. Defene counsels submitted that accused persons have not pointed out that place in fact no such proceedings were conducted and that is why no public witness has been joined. Ld. Counsels submitted that even otherwise that place was already known to investigating agency and from that place only the dead body was recovered on 31.03.17. SI Avdesh reached that place after receiving DD No.11A. Inspector Jarnail Singh also visited that place on 31.03.17. Ld. Counsels submitted that this fact clearly shows that this place was already known to the police and has not led to discovery of any new fact. Ld. Counsels further submitted that even otherwise no public witness was joined on all the three dates. Ld. Counsels submitted that in fact no sincere efforts were made to join public witnesses at the time of alleged pointing out. It is a concocted story. All the proceedings were done while sitting in the police station. Signatures of accused persons were obtained on blank papers which were later on converted into various State Vs. Yadvender etc. SC NO:455/17 103 documents. The onus which was on the prosecution has not been discharged. The circumstance is not established.
177. After hearing the arguments and going through the record, I found that the place where dead body was thrown is the place from where it was recovered on 31.03.17. As per the evidence and documents that place was known to the police on 31.03.17 itself and site plan of that place was also prepared by the IO which is Ex.PW36/A. Keeping in view this fact, it is clear that place of recovery of dead body was known to the police much before the pointing out by accused persons. It is well settled law only that part of disclosure statement is admissible which lead to either recovery of something or discovery of a new fact. Here there is no recovery of a things and discovery of a new fact. Hence, this does not led us anywhere.
178. Even otherwise, no public witness has been joined despite the availability of the witnesses and passerby passing on the road. The pointing out was done on three dates i.e. 16.04.17, 08.05.17 and 15.05.17 but on none of the dates no public witness were joined. This creates doubt regarding truthfulness of the story of prosecution. Keeping in view this discussion, in my opinion, the prosecution has failed to prove the pointing out by accused persons made doubt. Even, if for the sake of arguments it is presumed that State Vs. Yadvender etc. SC NO:455/17 104 accused person pointed out that place that does not by itself prove and establish that only they murdered Sanjay. The onus was upon the prosecution to prove this fact that their knowledge flows from the fact that they murdered Sanjay and threw the dead body on that place as discussed above. The onus was upon the prosecution which prosecution has failed to discharge. The circumstance is not established. Pointing out the place of abandoning of car:
179. Ld. Addl. PP submitted that in this case Sanjay was driving car number HR55AA 4231. After causing death of Sanjay, accused persons took away the car with themselves and abandoned the same in the area of PS Sadar Gohana near Saini Pura Chowk. Ld PP submitted that accused Sagar pointed out that place where the car was left abandoned on 18.04.17 and IO prepared the site plan Ex.PW39/B in this regard. This site plan clearly shows that car was left abandoned near Sainipura Chowk, near Daksh Engineering College. The same place was pointed out by Mohit on 10.05.17 vide pointing out memo Ex.PW35/K. Yadvender pointed out the same place vide memo Ex.PW9/B on 18.05.17. Ld. Addl. PP submitted that prosecution has examined SI Avdesh PW38, HC Sunil PW35, Inspector Jarnail Singh PW39 and Inspector Dheeraj PW9 to prove this fact. All the witnesses are consistent and have fully State Vs. Yadvender etc. SC NO:455/17 105 supported the prosecution case. Ld. Addl. PP submitted that they are trustworthy and reliable and proved the pointing out memos. The onus which was on the prosecution has fully been discharged. It is prayed that as prosecution has proved the circumstance which points towards the guilt of accused persons and their specific knowledge where the vehicle was left abandoned which was robbed from Sanjay, accused persons be held guilty.
180. Ld. Counsels for accused persons submitted that this car number HR55AA 4231 was seized by PW37 HC Anjeev. In this memo, it is mentioned that vehicle was recovered from Sainipura, Ramgarh Road on 02.04.17. Ld. Counsels submitted that if PW26 is to be believed who is non else but the real brother of the deceased. This vehicle was recovered on 01.04.17 and was also taken to PS Sadar Gohana. According to PW26, this vehicle was found abandoned near St. Oxford School, Garhi Ujale Khan. Even the vehicle movement report Ex.PW28/D shows that the vehicle was found ideal about 53 meters from SDJM Court, Gohana, whereas the place pointed out by the accused persons is near Daksh Engineering College near Saini Pura Chowk. There is no evidence on record that Daksh Engineering College is situated near St. Oxford School as deposed by PW26 or is near SDJM Court Gohana. Ld. Counsels State Vs. Yadvender etc. SC NO:455/17 106 submitted that in fact police was already knowing the place of recovery of car much prior to the pointing out by the accused persons. It was brought to the notice of the police on 01.04.17 itself that car is lying there in abandoned condition. Ld. Counsel submitted that under the circumstances as no public witness was joined, there is difference in the documents and submissions as to from where the car was recovered and place of pointing out, the onus of which was on the prosecution, has not been discharged. It is prayed that as the prosecution has failed to prove the circumstance, the benefit be given to the accused persons and they be acquit.
181. After hearing arguments and going through the record, I found that in the present case, according to testimony PW26 they came to know from the office of Ola as to where the car is present as there was GPS system in the car. They reached there and found the car lying abandoned near Garhi Ujale Khan, near St. Oxford School. PW26 also stated that they went to PS Sadar Gohana and informed about car and thereafter, the car was taken to PS. Police of PS Sadar Gohana particularly HC Ajmer PW37 seized the car but they prepared the document on 02.04.17 showing that car is recovered from Saini Pura, Ramgarh Chowk. The place of pointing out is near Dakash Engineering College near Saini State Vs. Yadvender etc. SC NO:455/17 107 Pura. The submissions and documents clearly shows that pointing out is of some other place from the place where the car was found abandoned situated near St. Oxford School from where it was recovered as deposed by the public witness. Under the circumstances, particularly when there is no such evidence brought on record that St. Oxford School and Daksh Engineering College are situated nearby. This pointing out is not in consonance with recovery. There is also no public witness joined at the time of recovery. The onus was upon the prosecution to prove that accused persons pointed out that place where they left the car abandoned which in my opinion prosecution has failed. The circumstance is not established as required under law. Poiniting out of the place of first dropping and then again boarding the car:
182. Ld. Addl. PP submitted that in this case as per the prosecution story and evidence adduced, accused Yadvender booked the car number HR55AA 4231 for going from Gurugram to Bakoli. They got down and from Bakoli again booked the cab. The place where they got down at Bakoli has been pointed out by accused Sagar vide pointing out memo Ex.PW9/D on 16.04.17, by accused Mohit vide pointing out memo Ex.PW35/E on 08.05.17 and by accused Yadvender vide pointing out memo Ex.PW38/D on 15.05.17. State Vs. Yadvender etc. SC NO:455/17 108 Ld. Addl. PP submitted that this pointing out of the place where they got down from the taxi and then again boarded the same after rebooking was not known to the police and investigating agency before it was pointed out by the accused persons, this led to the discovery of the fact and is also vital information. After boarding from Bakoli, accused persons murdered Sanjay and threw the dead body. Ld. Addl. PP submitted that the police witnesses examined i.e. HC Anjeev PW29, SI Avdesh PW38, HC Sunil PW35 and Inspector Jarnail Singh PW39 fully corroborated each other and proved this circumstance. Ld. Addl. PP submitted that circumstance points towards the guilt of the accused.
183. Ld. defence counsels have submitted that this fact and place was already known to the police even prior to the pointing out by the accused persons as alleged. Accused persons had not pointed out any place. It is a concocted evidence and so far as knowledge is concerned, they came to know this place from Ex.PW28/D and also Ex.PW28/E which shows the dropping location and also the time. Ld. Counsels submitted that even otherwise according to the record Sanjay dropped the person which boarded from Shanti Nagar, Gurugram at Bakoli and then again taking that passenger from there, dropped him at Bhorgarh, Narela at 03.56.44 hours, meaning thereby that this does not relate to State Vs. Yadvender etc. SC NO:455/17 109 the commission of offence. This dropping point and again boarding the car does not point towards involvement of the accused persons in the commission of offence. Ld. Counsels further submitted that no public person was joined when allegedly the accused persons pointed out the first place of dropping and then again boarding the car. Even otherwise, this does not point towards the guilt of accused persons and is also not inconsistent with any hypothesis of innocence of accused. As firstly there is nothing on record to show that it was the accused persons who boarded the car from Gurugram and then dropped at Bakoli and after that they had already been dropped at Narela as per the documents Ex.PW21/E at 03.56.44 hours on 31.03.17. Ld. Counsels submitted that onus was upon the prosecution to prove and establish this fact which the prosecution has failed. It is prayed that onus of the prosecution is not discharge and benefit be given to the accused.
184. After hearing the arguments and going through the record, I found that in this case the place of dropping was already known to the investigating agency, not only the first dropping but also second dropping and that is why zero FIR was registered at Gurugram and thereafter, the investigation was taken over by police of PS Narela as the boarding from Bakoli situated in the area of PS Narela and that dead body State Vs. Yadvender etc. SC NO:455/17 110 was also found in the area of PS Narela. In view of this position, it is clear that police was already knowing the place where they got down from the car in Bakoli and then where they got down at Bhorgarh from the documents Ex.PW28/D and Ex.PW28/E. Under the circumstances, this pointing out does not lead to discovery of a new fact. Even otherwise, this dropping itself does not point towards the guilt of the accused as firstly, prosecution has failed to show that accused persons booked this car, boarded from Gurugram and got down at Bakoli or it were accused persons who again boarded from Bakoli and committed this offence. Under the circumstances, in my opinion, this pointing out does not point towards the guilt of the accused persons and is of no consequence.
Extra Judicial Confession (PW-12 Sombir):
185. As per the story of prosecution Mohit made telephone call to Sombir PW12 and told about commission of offence by him along with his co-accused, throwing the dead body and at the same time and warning him to vacate the house as the police might be coming at any time at his room. PW12 has not supported the prosecution case at all. He was cross examined by Ld. Addl. PP on this point and he stated that Mohit did not make a call to him and did not tell that they killed the taxi driver. Under the circumstances, in my opinion, State Vs. Yadvender etc. SC NO:455/17 111 the prosecution has failed to prove the extra judicial confession.
186. Prosecution has also alleged that accused persons boarded taxi from Gurugram in the presence of Sushil. In this case Sushil could not be examined as he unfortunately dead. In the absence of his testimony, this circumstance cannot be proved and established.
187. In this case, there is one more aspect that according to PW26, the vehicle was found abandoned near St. Oxford School, Garhi Ujale Khan and at that time the ignation key of the car was found in ignation. When PW37 seized the car there was no ignation key in the car and it was towed away to the police station Sadar Gohana whereas according to PW15 HC Rajender, ignation key of the car was in PS Sadar Gohana and with the help of that key, they brought the car to PS Narela. PW39 came up with a different story that a duplicate key of the car was prepared and with the help of duplicate key, car was brought to PS Narela.
188. In this case, accused Amit has been charged under Section 212 IPC that he harboured other accused persons and in this regard there is testimony of the witnesses that they have seen the three accused running from the roof of the house of Amit. Even if, it is presumed that they had seen the accused persons running, though, it is also doubtful case State Vs. Yadvender etc. SC NO:455/17 112 as the matter was immediately not reported to PS Sadar Gohana when they saw three accused persons running. No effort was made to chase them or to trace them and no DD entry in this regard was lodged but still if it is believed that they i.e. Yadvender, Mohit and Sagar were seen running away from the house of Amit, it was for the prosecution to prove and establish that Amit was knowing that those three persons have committed some offence, in this case, the murder, and thereafter, he was harbouring them in order to save them. No such evidence has been brought on record that Amit was having knowledge that they have caused any offence much less murder of Sanjay.
189. Keeping in view this fact, in my opinion, prosecution has failed to prove that Amit harboured the three accused Yadvender, Mohit and Sagar at his house no. 138, Ward No. 60, Gohana. After having knowledge that they have committed murder.
190. Keeping in view these facts and discussion on the various circumstances as detailed above, in my opinion, the onus which was on the prosecution has not been discharged. Circumstances are not proved and established as required under law. Chain is not complete. There is no evidence on record to show that they have conspired with each other or kidnapped Sanjay or caused his death or destroyed the State Vs. Yadvender etc. SC NO:455/17 113 evidence. Therefore, all the accused persons are acquitted of charges. They be released forthwith on furnishing personal bond in the sum of Rs.20,000/- each with one surety each of the like amount under Section 437A Cr.P.C.
File be consigned to the Record Room.
VIRENDER Digitally signed by
VIRENDER KUMAR
Announced in the open court KUMAR BANSAL
Date: 2018.08.24
today on 24.08.2018 BANSAL 16:29:15 +0530
(VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Yadvender etc. SC NO:455/17 114