Delhi District Court
State vs . (1) Arvind Kumar on 30 April, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI: DELHI
Session Case No. 1078/09
Unique Case ID No.: 02404R1286942005
State Vs. (1) Arvind Kumar
S/o Late Anandi Mandal
R/o V&PO Locha Patam,
Police Station Ram Nagar,
District Munger, Bihar
(Convicted)
(2) Rajesh Kumar
S/o Visheshwar Paswan
R/o VPO & PS Kiraya
Perrai, District Nalanda,
Bihar
(Expired)
(3) Amit Kumar
S/o Late Anandi Mandal
R/o V&PO Locha Patam,
Police Station Ram Nagar,
District Munger, Bihar
(Proclaimed Offender)
FIR No.: 36/2005
Police Station: Tilak Nagar
Under Sections: 363/302/364-A IPC
Date of committal to sessions court: 10.10.2005
Date on which orders were reserved: 14.3.2011
Date of Judgment: 13.4.2011
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 1
JUDGMENT:
As per the allegations, on 18.1.2005 at about 6:00 pm the accused Arvind Kumar along with his co-accused Rajesh (since expired) and Amit Kumar (Proclaimed Offender) in furtherance of their common intention kidnapped Deepak @ Noni, a minor boy aged about ten years, from the lawful guardianship of his parents for a ransom of Rs.2 lacs by giving rise to a reasonable apprehension that such abducted child be put to death or hurt. Further, as per the allegations in the intervening night of 19/20.1.2005 the accused Arvind Kumar along with his co-accused Rajesh (since expired) and Amit Kumar (Proclaimed Offender) committed the murder of abducted child Deepak @ Noni.
BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 18.1.2005 one Jitender Pal had gone to the Police Post Khyala and got recorded the missing report of his nephew Deepak @ Noni. Again on 19.1.2005 one Anil Kumar (father of the child Deepak @ Noni) went to the Police Station Tilak Nagar and got recorded his statement wherein he has informed the police that on 18.1.2005 his ten years old son namely Deepak @ Noni had left the house to purchase sugar from the nearby shop and had not returned thereafter. On the basis of the statement of Anil Kumar the present case was got registered.
On 19.1.2005 the police officials went to the house of Anil Kumar (complainant) and made inquiries from the tenants of State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 2 Anil Kumar but the accused Arvind Kumar and co-accused Rajesh (since expired) who were the tenants of Anil Kumar were not present at that time and the room under their tenancy was locked. In the morning of 20.1.2005 the dead body of the child was found near house No. 221/175 which was wrapped in a bed sheet and tied with insulated wires. After the dead body of child was cremated and the complainant Anil Kumar returned home, he found a ransom note near the electric motor wherein a demand of Rs.2 lacs was made by the accused Arvind Kumar. On 21.1.2005 pursuant to a secret information the accused Arvind Kumar and Rajesh (since expired) were apprehended near Park Hospital, Khyala. After his arrest the accused Arvind Kumar led the police party to the room of his co-accused Amit Kumar (PO) at House No. S-221/175, Gali No.4, Vishnu Garden from where he got recovered the cutting plier (plas) with which he had cut the electric wires and thereafter tied the dead body of Deepak after wrapping him in the bed sheet; the remaining portion of the electric wire, one plastic can containing some kerosene oil, a linedar copy from which he had torn a page and had written the ransom note and one lodhi pathar with which he had given a blow on the head of Deepak (deceased). After completion of the investigations, the charge sheet was prepared and filed in the court.
The accused Amit Kumar could not be arrested and he was declared Proclaimed Offender vide order dated 10.9.2005 and the accused Rajesh expired on 20.3.2005 (as reported had committed suicide while in Judicial Custody). Now, it is only the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 3 accused Arvind Kumar who is facing trial.
CHARGE:
The Ld. Predecessor of this court has settled the charges under Sections 363/364A/302/34 Indian Penal Code against the accused Arvind Kumar to which he has pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case, the prosecution has examined as many as twenty eight witnesses.
Complainant/ public witnesses/ eye witnesses:
PW1 Anil Kumar is the complainant in the present case. He is the father of the deceased child Deepak and has deposed that he along with his wife two daughters and one son Deepak (deceased) were residing in House No. WZ-283/04, Gali No.3, West Block, Vishnu Garden, New Delhi. According to him, on 18.01.2005 at about 5.00 pm his son Deepak aged about ten years, had gone to purchase sugar from a nearby shop but did not turn up from the market. He has testified that at that time, Deepak was wearing a blue color T-Shirt and blue colour jeans pant and white colour sport shoes and the fact regarding his missing was conveyed to him by his wife on telephone on which he immediately reached his house at about 6.30 p.m. and tried to trace out his son in the neighbourhood but Deepak could not be traced. According to the witness, on 19.01.2005, he lodged a missing report of his son in State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 4 the Police Station vide statement Ex.PW1/A. The witness has further deposed that he was having some tenants in his premises but he does not recollect their names and his brother Jitender Kumar also lodged a report regarding the missing of his son in the Police Station. He has testified that on 19.01.2005 at about 8.00 pm, Police officials visited his house and made enquiries from his tenants and his wife and at that time all his tenants were present in their rooms except the accused Arvind and Rajesh and the room which was under their tenancy was locked. PW1 Anil Kumar has also deposed that on 20.01.2005, he received a message from the Police officials that his son Deepak had been murdered and he was called at DDU hospital where he identified the dead body of his son. He has proved that his statement was recorded by the Police regarding identification of dead body which statement is Ex.PW1/B and the statements of Trilochan Singh and his brother were also recorded in his presence. According to the witness, after the postmortem, he took the dead body of his son and after performing the last rites, they reached their residence and when he sat near the stair case of his house, he noticed one paper lying near the electric motor. He has testified that he lifted the said paper and went through the same wherein Rs. 2 lacs were demanded on which he narrated the said fact to his brother Jitender Kumar. According to PW1, somebody rang to the police pursuant to which Inspector Pratap Singh and other police officials reached his house to whom he handed over the said letter which was seized vide memo Ex.PW1/C. The witness has further testified that on 21.01.2005, State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 5 he came to know that accused persons had been arrested. He has proved having handed over one photostate copy of SARAL form which is Ex.PW1/D. The witness has correctly identified the accused Arvind Kumar as the same person who was his tenant and was residing in a room along with Rajesh (expired). He has also identified the page of small copy on which five lines have been written as the same which was found lying near electric motor which was installed near the stair case of his house and was handed over to SI Pratap Singh, which letter is Ex.PW1/E and according to him, he signed on it at his residence when it was handed over to the police on 20.01.2005 and his brother Jitender also signed on the same in his presence. PW1 has been shown one fee receipt in the name of Deepak Bedi dated 18.01.2005 on which the witness has identified the same as that of his son namely Deepak Bedi which was in the pocket of his son when he left the house and did not return back, which receipt is Ex.PW1/F. He has also identified the clothes of his deceased son i.e. the gray pant with belt which is Ex.P-1, Blue T-shirt which is Ex.P-2, one sweater which is Ex.P-3, baniyan which is Ex.P-4, underwear which is Ex.P-5 and one pair of blue socks which is Ex.P-6.
In his cross-examination, the witness has deposed that in the year 2005, his house was four storeyed constructed which is now five storeyed. He has testified that in the year 2005, he was running a factory on the ground floor, on the first floor there were five rooms, on the second floor he was residing with his family and on the 3rd floor of his house, there were five rooms. He has deposed State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 6 that all the rooms on the first floor and third floor were occupied by different tenants and there were 25-30 persons in all in families of his tenants residing there. According to him, there were five tenants on the first floor and five tenants on the third floor but there was no rent agreement or lease deed executed by any of the tenants nor he issued any rent receipt to any of the tenants. He has testified that the income from rent received from tenants, was shown in different return of his HUF and he had not handed over copy of income tax return of his HUF as it was not demanded by the police. The witness has further deposed that the name of his tenants were not reflected in his income tax return of HUF and no document was filed alongwith the return of the HUF showing the names of his tenants. According to PW1 for the first time, he had shown the income of rent in income tax return of HUF in the year 2005-06. He has admitted that he had not shown income from rent in his income tax return for the period January 2005 and prior to that either in his individual return or return of HUF. The witness has further deposed that he has no document to show that the accused Arvind Kumar was living as tenant in his house in January 2005. According to him, his son Deepak used to leave the house at about 7.15 a.m. and the bus used to come at about 7.15 p.m. and he used to return at about 2.45 p.m. from the school. PW1 has testified that the shop where his son had gone for taking sugar was at a distance of twenty paces from his house and first of all his wife noticed that Deepak had not returned back. PW1 Anil Kumar has deposed that he searched his son Deepak at nearby streets and park in his locality State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 7 and he had not gone to the house of any relative or any friend of Deepak on 18.01.2005 but states that he enquired on telephone from his relatives, friends about Deepak on 18.01.05. The witness has testified that he had been tracing his son Deepak throughout the night of 18.01.2005 till about 4.00 p.m. on 19.01.2005 and that on 18.01.05 about 11.00 p.m., his brother Jitenderpal had gone to Police Post for taking help and lodging report. He has also deposed that on 19.01.2005, police officials came to his house at about 11.00/12.00 a.m. and made enquiries from his tenants and neighbourers at the sugar shop. He does not remember if Police officials recorded the statements of his family members at that time but states that they had not taken school bags, copy and books of Deepak. The witness has also deposed that he had handed over photographs of his son Deepak to the police but he does not remember if his statement was recorded at the time of handing over the photo of Deepak or if he had signed on the photographs. He has admitted that he had not handed over any belongings of his son Deepak including books and clothes to the Police before the recovery of his dead body. He has admitted that he had not handed over any belonging of his son Deepak including books and clothes to the police before recovery of his dead body. According to him, he received information regarding recovery of dead body of Deepak on 20.01.05 at about 6.00 am but he is unable to tell the name of the police officials who informed him about the recovery of dead body. He does not remember if he told to the police in his statement dated 19.01.2005 that on 18.01.05, he was not present in the house and he State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 8 received telephonic call of his wife. According to him, he saw the ransom note at about 4.00/5.00 p.m. On 20.01.05 which was folded but he does not remember if there was a single fold or double fold since he was in perplex state of mind as his son had expired. He does not remember as to who kept the said ransom note but states that he had not informed about the ransom note to anybody except Jitender. He is unable to tell as to who informed to the police about ransom note. The witness has further deposed that he handed over the ransom note to the police at about 6:00/ 6:30pm on 20.01.2005 to Inspector Partap Singh who remained at his house for about 15/20 minutes after the ransom note was handed over to him but he is not aware if the ransom note was sealed by Inspector Partap Singh or whether he took it into his pocket. He has admitted that several of his relatives were present in the house when they come back after cremation of Deepak who all were present in the house when Inspector Partap Singh came to his house but states that no relative was present at the place where he handed over the ransom note to Inspector Partap Singh. According to PW1, one or two neighbourers also tried to trace Deepak on 18.01.05 whose name, he does not remember. He has testified that his tenants did not make any effort to trace Deepak on 18.01.2005 and he made enquires about his son Deepak from his tenants on 18.01.2005 and on 19.01.2005. He has admitted that he is on good terms with Sh.
Trilochan Singh as he used to take some money in need from him. He has denied the suggestion that police officials had not made any enquiry from Trilochan Singh in his presence. He has deposed that State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 9 Mr. Trilochan Singh met him on 18.01.05 and 19.0.12005. The witness has further testified that he reached DDU Hospital on 20.01.2005 at about 6.00 a.m. and again he went to DDU Hospital at 10.00 am about 6.00 a.m. on 20.01.05, he was accompanied by Mr. Amit Jaggi, his cousin brother and at about 10.00 a.m. He was accompanied by Mr. Rajesh Kumar, Sanjay Kumar, Sudhir Kumar, Jitender, Partap and Rakesh Kumar and he does not remember if there was any other person in DDU Hospital at that time. The witness has also deposed that on 20.01.05 at about 7.00 am he along with Police officials namely SI Rajesh Kumar went to the place from where the dead body of Deepak was recovered where he remained for about ten minutes. PW1 Anil Kumar has admitted that the said place was a congested place and there were several houses but he does not remember if there is a narrow lane. According to PW1, no document was prepared by the police at the said place and the police officials obtained his signatures on four/ five papers in connection with this case. He has denied the suggestion that the accused Arvind was never his tenant or that the accused has been implicated only on account of his misplace suspicion on Rajesh. The witness has further denied that the ransom note has been planted on the accused or that the accused was subjected to 3rd degree methods on his suspicion after which the ransom note was planted on accused. PW1 has also denied that Trilochan Singh did not inform anything to him regarding Deepak.
PW2 Smt. Vandana is the wife of Anil Kumar (PW1) and the mother of deceased Deepak. She has deposed that on State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 10 18.01.05 her son Deepak had gone to the market for taking the sugar at 5.00 p.m. and was wearing a sleeper, blue colour pant, blue colour T. Shirt blue, colour socks, half red colour sweater and he was also wearing a pandal in black colour thread. The pandal was made of metallic colour. PW2 has further deposed that her son Deepak came back after 10 minutes without purchasing the sugar and when he came back he changed into his white colour shoes and then again left the residence after than he had not turned back. She has also deposed that she went to Tis Hazari Court on 23.03.05 and before a lady MM, she was called inside the Chamber and she identified the locket along with thread Ex.P-1 of her son, which he was wearing when he left the residence.
In her cross examination, the witness has denied the suggestion that the said locket does not belong to her son Deepak. She has deposed that when her son left the residence, he was not wearing the school uniform and had already changed the school uniform. She has testified that when her son Deepak came back after 10 minutes, he was not having sugar so she had not asked him about the sugar. According to her, she had not seen the locket in possession of the police prior to its identifying before Ld. MM.
PW3 Shiv Kumar has deposed that he is carrying on business at H. No. S-221/175, Gali No. 4, Vishnu Garden, Khayala, Delhi and on 01.01.05, two persons namely Amit and Arvind came at his residence for taking his room on rent. According to him, he let out one room on the second floor of his aforesaid premises on a monthly rent of Rs. 600/-. The witness has further deposed that on State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 11 18.01.05 at about 10.30 pm, accused Arvind along with Rajesh came down from the second floor of the rented room and went outside and on 19.01.05 at about 10.00 pm, accused Arvind and Rajesh came back in the rented room. He has testified that he used to close the main gate of his house at about 11.00 pm and opened it at about 6.00 am and used to keep the key with him. PW3 has further deposed that Amit was present in the rented room on 19.01.05 (to be read as 18.1.2005 and appears to be a typographical error) when Rajesh and Arvind arrived in the tenanted room and Amit left the rented room at about 7.00 am on 19.01.05. The witness has further deposed that on 20.01.05, accused Arvind and Rajesh came on the first floor at about 5.30 am and gave a call to him to open the main door as they had to go to somewhere and he opened the lock. PW3 has further deposed that the accused Arvind and Rajesh thereafter left the tenanted premises and at about 7.00 am when he opened his shop, he came to know that a dead body of a child was lying in the street near his house. PW3 Shiv Kumar has also deposed that on 21.01.05, accused Arvind and one Rajesh were brought by the Police at tenanted premises only after which he came to know about the whole facts. He has testified that he told to the Police that the accused Arvind and Amit were tenants in a room on second floor in his house and there was no electricity in the house at about 6.00/7.00 pm on 18.01.05. He has correctly identified the accused Arvind Kumar in the court.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 12In his cross examination the witness has deposed that he used to open his shop at 7.00 am and used to close the same at 10.00 pm. He has admitted that he did not hear any noise on 18.01.05 nor his family members informed him regarding any noise on 18.01.05. He has deposed that the Police officials came to him on 20.01.05 and on 21.01.05. He has denied the suggestion that accused Arvind Kumar had never come to his premises nor he has any concern with him. PW3 has admitted that accused Arvind Kumar was not his tenant, however, Arvind Kumar used to live with Amit Kumar who was his tenant. The witness has denied the suggestion that Arvind Kumar was not living in the room on second floor of his house.
PW4 Trilochan Singh is a witness who had last seen the deceased alive with he accused. He has deposed that he knew Anil Kumar very well who used to live in Gali No.3, West Block, Vishnu Garden and also knew the person who was living as a tenant in the house of Anil Kumar. He has deposed that on 18.01.05 at about 6.00/6.30 pm, he was going on Gurdawara Mandir Road on his two wheeler scooter and when he reached near the shop of Aggarwal Jewllers, N-Block, Vishnu Garden, he saw accused Arvind Kumar and Rajesh who were coming with a child namely Deepak s/o Sh. Anil Kumar and accused Arvind had put his hand on the shoulder of Deepak and accused Arvind was laughing and was going with Deepak and Rajesh. He has testified that on the next day i.e. 19.01.05, he had gone to Karnal for his personal work and came back from Karnal in the night of 19.01.05 and on the next State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 13 day i.e. 20.01.05 in the morning, he came to know that Deepak s/o Sh. Anil Kumar had been murdered and his dead body was recovered from S-Block, Gali No. 4, Vishnu Garden, Delhi after which he went to the house of Anil Kumar and came to know that all the family members had gone to DDU hospital as postmortem of Deepak was being done there. According to the witness he also went to DDU hospital where police officials met him and he disclosed the facts to the police officials.. He has correctly identified the accused Arvind Kumar in the court.
In his cross examination the witness has deposed that Anil Kumar had let out one room on the first floor about one or one and a half month before 19.01.05 to accused Arvind Kumar but he is unable to tell who was the tenant in the house of Anil Kumar prior to accused Arvind Kumar. The witness has also deposed that there were two other tenants besides accused Arvind Kumar, one of them was Bhupi (a sikh gentleman) and he used to go to him as he (Bhupi) was carrying on business of auto parts and the name of other tenant was Mintu who was known as Panipatia but he is unable to tell their complete names. He has further deposed that he does not remember the colour of clothes worn by the accused Arvind Kumar on 18.01.05 and 19.01.05 but so far as he remember Deepak was wearing blue shirt. He has denied the suggestion that his family members knew the family members of Anil Kumar. According to PW4, the distance between his house and house of Anil Kumar is about half a kilometer. He has admitted that when he returned back from Karnal, he received an information regarding State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 14 death of a child. The witness has testified that he went to the house of Anil Kumar in the morning on 20.01.05 but he did not go to the house of Anil Kumar in the night of 19.01.05. He has denied the suggestion that he did not see the deceased Deepak with the accused Arvind Kumar on 18.01.05 or that the accused Arvind Kumar was not a tenant of Anil Kumar and has been falsely implicated by him at the instance of Anil Kumar who is well known to him.
PW7 Jitender Kumar is the brother of Anil Kumar (PW1) who has deposed that Deepak was son of his brother Anil and when Deepak not turned up up to 11.00 pm on 18.01.05, he went to Police Post Khyala and lodged a missing report of Deepak which was recorded vide DD No.27 dated 18.01.05 at Police Post Khayala, copy of which DD is Mark A. According to him, he came to know later that Deepak has been murdered and on 20.01.05 Deepak was cremated by him and other family members. He has further deposed that he and his brother Anil Kumar are residing in the same house and on 20.01.05, when he reached at his house, Anil Kumar was found sitting on the ground floor near the staircase and Anil Kumar showed him one letter in which "tumhara beta mere paas hai, mera baap bimar hai mujhe 2 lacs rupee chahiye. Agar Police ko bataya to samjho tumhara beta mar gaya. Paise kab or kaise baad me bataunga" was written. According to the witness, police officials also reached at their residence on which the said letter was handed over to the Police and he signed the same when it was handed over to the police.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 15In his cross examination, the witness has deposed that the police investigated from all the members of the house including the tenants but he does not remember if statement of any person was recorded. He has further deposed that he had not handed over any document to the police when he went to lodge the missing report, however, he signed on the missing report. According to him, there was one person by the name of Panipatiya, another person Buchi and one Arvind Kumar were living as tenants in the house in which he was living but he does not remember if there was any tenant in his house. He has deposed that the police did not record the statement of any tenant in his presence and has admitted that the letter Ex.PW1/E was not lifted by him. He is unable to tell if the letter Ex.PW1/E was in an envelope or it was closed or folded when it was lifted by his brother Anil Kumar. PW7 has denied the suggestion that letter Ex.PW1/E and specimen writing consisting in two pages marks S-1 and S-2 were got written by accused after giving beatings to accused by Police officials. He has testified that the school uniform of Deepak was comprising of one blue coloured tie having logo of MRV, checkdar shirt of sky blue colour and blue coloured socks. He has denied the suggestion that the accused Arvind has been falsely implicated on the basis of wrong suspicion of that the letter has been falsely planted on him.
PW8 Rakesh Kumar, who is a businessman, has deposed that on 20.01.05, he went to DDU hospital Mortuary and identified the dead body of his nephew Deepak vide his statement Ex.PW8/A. State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 16 PW11 Pankaj Kumar has deposed that he is running an auto repair shop on the ground floor of his house bearing no. WZ-283/03, Vishnu Garden and Anil Kumar is residing opposite to his workshop in house no.283/04, Vishnu Garden. According to the witness, Anil Kumar had rented out his premises and out of them three to four were known to him. He has identified the accused Arvind Kumar in the court as the boy who was living as a tenant in the house of Anil Kumar in the month of November, 2004 along with Rajesh Kumar. According to him, Deepak @ Noni was the son of Anil Kumar and he was known to him and Deepak used to roam around with accused Arvind Kumar at different places.
In his cross examination by the defence counsel, the witness has testified that his house is within area of 100 square yards and it built in an area which is residential as well as industrial. He has deposed that he is not running his workshop at his residence now since he had shifted from there about two years from back. According to him, he had not obtained any license from MCD or any other authority to run the workshop from his residence. The witness has testified that he is residing in this premises for the last 30-40 years and Anil Kumar is known to him from childhood and according to him he leaves for his work at 9 am and sits at his shop till 8 pm and used to live in the same property. He has deposed that Anil Kumar is doing business of power press from his house. PW11 has further deposed that in 2005, three brothers of Anil Kumar namely Pardeep, Jitender and Babloo @ Bakal were also residing in the same house at back side. According State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 17 to him Anil Kumar was giving the rooms on rent for the last 6-7 years when his building was completed. He has deposed that in the year 2004, there was Rajesh and Arvind and one sardarji and some other persons whose name he does not remember, living as tenant in the house of Anil Kumar. He does not remember the name of the persons who were tenants of Anil Kumar in 2003 or prior to that. According to the witness, he had shifted his residence to Mohan Garden, Uttam Nagar on 15.4.2004, i.e. after two three months after this case but again deposed that he shifted his house in the year 2005. According to the witness, he is not aware in which school and class Deepak was studying. He has deposed that Arvind and Rajesh were working in a factory but he is not aware in which factory they were working. The witness has admitted that on 18.1.2005 he had not seen either Deepak or accused Arvind or accused Rajesh.
PW12 Lalit Bahadur has deposed that on the intervening night of 20.1.2003 he was working as watchman of locality of S Block Vishnu Garden and on that day from 9PM onwards he started taking round of the locality and passed from in front of the house No. S-221/175, Gali No.4, Vishnu Garden but nothing was found but while taking round at about 4 Am, he noticed something lying in front of house No. S-221/175, Gali No.4, Vishnu Garden wrapped in a bed sheet and tide with a wire. According to the witness, he immediately informed the neighbours and somebody informed the police and police came at the spot and checked the bed sheet and then it was revealed that the bed sheet State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 18 contained a dead body of 8/9 years old male child. The witness has deposed that the police thereafter recorded his statement and the dead body was sent to the hospital. This witness has not been cross examined by the accused despite opportunity in this regard.
PW14 Amrish Kumar is running business of Cable TV in the area of Vishnu Garden and had given connections in S block and J Block, Vishnu Garden. According to him, on 19.1.2005, he went to collect the monthly payment from the customers and also went to house no. S-211/175, Vishnu Garden and when he checked the cable he found the cable wire in proper condition. He has testified that on 22.1.2005 he was called by the police officials at S- 221/175 when he noticed that the cable wire and its support wire were broken and he, on the direction of the police officials, opened the cable wire and support wire which were taken into possession by the police. He has deposed that the length of the cable wire and support wire on the one side was 15 ft. and on the other side it was 30 ft. which were kept in a polythene which was sealed with a seal but he does not remember the initials of the seal and thereafter the same was taken into possession vide seizure memo Ex.PW14/A. According to him both the wires were of black colour which he has identified in the court which are collectively Ex.P10.
In his cross-examination, the the witness has deposed that in the month of January, 2005 he used to live at NE 37 Vishnu Garden and shifted to S-221/153, Vishnu Garden about two years back. He has denied that Anil Kumar, the father of the child, and his counsel has read over his statement outside the court. He has State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 19 admitted that when the monthly payment from the customer is received his signatures are obtained on a card and the said cards are maintained for a period of one year. He has deposed that on 19.1.2005 he had collected the payment from only one customer. He had also collected the payment from House No. S-221/175, Vishnu garden on 19.1.2005. According to him, this card was neither sought by the police from him nor he handed over the same to the police. His statement was recorded on 22.1.2005 which he had read and thereafter he signed it. He has deposed that he signed his statement which mentioned the custody of the wire and he has signed only one document. He has deposed that he had not stated to the police that on 27.1.2005 he had gone to check the cable wire (witness was confronted with the Ex.PW14/DA where it is so recorded). He has admitted that the transmission would stop when the cable wire breaks. According to him neither written complaint nor oral complaint was received in his office between 19.1.2005 and 27.1.2005 regarding breaking of cable wire. He has denied the suggestion that he gave his name as a witness in the case to oblige the complainant and the police authorities. He has further denied the suggestion that no wire was broken or that he has deposed falsely at the instance of complainant and the police.
Medical evidence/ witnesses:
PW16 Dr. Bhawna has deposed on behalf of Dr. Vishal Sehgal to depose on the MLC No. 1245 of an unknown person aged about 13 years. She has deposed that on local examination there State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 20 were bruises present over right lateral aspect of finger, chest and upper abdomen. She has proved the MLC prepared by Dr. Vishal Sehgal which is Ex.PW16/A. In her cross examination by the defence counsel the witness has testified that she does not remember when Dr. Sehgal Sehgal has left the services of the hospital but according to her, she worked with him for two months. She has admitted that there is some overwriting on figure 4 on the MLC Ex.PW16/A at point A. According to her, medical state of death is different from state of unconsciousness. She has further deposed that when the patient is first brought to them, initially they have to write down that the patient is unconscious and only after examination if can be opined that whether he is dead or brought dead. According to the witness, generally they do not declare the person dead without the full examination of the body like heart sound, breast sound pupilary examination and ECG etc. She has denied the suggestion that there is no codified rules that demands from them from straightaway declaring a patient dead when he is immediately brought to casualty even if it is apparent from the condition of the body. The witness has also admitted that she has no personal knowledge about the condition of the patient.
PW17 Dr. L. K. Barua has deposed that on 20.1.2005 he was posted at DDU Hospital and at about 12:05 PM, he conducted postmortem on the body of Deepak @ Noni S/o Anil Kumar aged about 10 years, male sent by Inspector Pratap Singh and brought by constable Ram Partap. According to the witness at State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 21 the time of the postmortem examination the body was wearing one grey colour pant with belt, one blue colour T-shirt, one rose colour half sweater and white baniyan, one nicker and a pair of shocks. According to him, the clothes were intact were smelling of kerosene oil and rigor mortis was absent. He has deposed that the postmortem was on the back side of the body and the whole of the abdomen upto groin. He has further deposed that both axillary area showed greenish discolouration which faint decomposition smell, Eyes were partially open and both eyes showed sub-conjunctival heamorrhage, the face was flushed, mouth was partially open, both upper and lower lips showed contusion and teeth bite marks with small amount of blood clots petecheal heamorrhagic spots were seen on the nose tip and zygomatic area and nails of the fingers were blue. According to the witness, the following external injuries were observed:
1. Both sides of face over mouth area showed impression of being tied with cloth / similar object extending posteriorly involving both ear pinna lower part of which 3.5 to 4 cm.
However, there was no ligature impression observed on the back side of neck.
2. One linear crecentric semi lunar abrasion resembling nail marks were seen on the left side upper part of neck of size 1 cm X 2 cm, placed 3 cm left to the mid line.
3. One linear scratch was seen on the left side back of neck of size 2.5 cm X 0.5 cm.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 224. Linear scratch of 1 cm resembling nail marks were seen on the left side nose size 1 cm X 0.2 cm.
5. One contused abrasion on the left forearm 6 cm, below the left elbow of size 0.5 X 2 cmplaced on its posterior aspect.
6. One contused abrasion on the let arm just above the elbow on its posterior aspect size 2.5 X 1.2 CM.
7. Contused abrasion on both wrists left and right of which varying from 3 Cm to 3.5 Cm. At the same level suggesting both the writs with being tied with some ligature material one above the other. (the ulnar part of the right hand and radial part of left hand did not show any rope mark.).
8. One abrasion on the right side back of chest 16 cm, below the nap of neck of size 5 cm X 3 Cm. On cutting the abrasion mark there was no blood clot underneath.
9. One small laceration of size 0.5 x 3 cm seen on the left temporal occipital area with blood stained scalp hair.
The witness has further deposed that on internal examination while cutting the hair and after deflecting the scalp clotted blood was seen on the left temporal occipital area; the underneath showed fracture of skull bones extending from temporal to occipital area on the left side but on right side of the head there was another fracture (depressed of size 3 x 2 cm) but no blood clot seen suggesting postmortem injury. He has testified that on examination of the brain blood clot was limited in the temporal parietal area on left only and no contusion or any blood clot was seen on the right occipital area underneath the depressed fracture State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 23 site. Further, on examination of the neck an oral cavity is shown on both lips including ventral aspect showed contusion and teeth bite marks corresponding to his own teeth and the tongue was found to be contused including its base and posterior palate. According to the witness, the hyoid, thyroid, crecoid cartilages were intact, the larynx, the tracheal rings were intact, the cervical spine was normal. He has also deposed that on examination of chest, everything was normal except fracture of ribs from 5th to 7th on its left side, no effusion of clotted blood on the fractured side. According to him, on the left side ribs were intact, both lungs were congested, right side chambers of the heart was full of clotted blood but on the left side it was empty. The witness has deposed that, on examination of the abdominal cavity including genitalia area stomach was found to be empty and normal, liver showed laceration but no blood clot was seen on the lacerated part of the liver, which laceration was seen on the superior surface on the right lob of leer of size 4 cm. The genitals were normal, the anul was found normal and the lever, kidney were congested. According to the witness, all injuries were antimortem in nature except injury no. 8. The age of the injury was one and half days duration approximately. The injury no. 8, injury to right side of occipital area of the head, laceration of liver and fracture of right side ribs were postmortem in nature. He has proved that the cause of death was due to asphyxia following smothering and time since death was about one/ half day approximately. He further deposed that sample of blood the viscera, the clothes of the deceased were preserved, sealed with the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 24 seal of LKB and handed over to police along with sample of seal. The witness has proved his detailed report which is Ex.PW17/A and has deposed that on 19.3.2005, he received an application from the Additional SHO Police Station Tilak Nagar who had also sent one sealed packet sealed with the seal of PS said to have contained one stone inflicted on the body of deceased Deepak. He has testified that, after opening the sealed packet he had observed one semi circular stone, of which he had drawn a sketch. According to the witness, he examined the stone and injuries on the Postmortem report and he was of the opinion that injury no.9 observed on the left temporal area of the head could be possible by this stone. He has proved that the injury no. 9 was sufficient enough to cause death in ordinary course of nature though as per his opinion the immediate cause of death of deceased Deepak was due to asphyxia. According to the witness, the stone was resealed and handed over to police i.e. ASI Brahm Parkash. He has proved the said opinion which is Ex.PW17/B written in his handwriting bearing his signatures at point A. In his cross examination by defence counsel, the witness has testified that while conducting the postmortem, he was preparing rough notes simultaneously which he did not hand over to the investigating officer and destroyed the same. He has further testified that only injury no. 8 is possible by fall i.e. if a person falls with the right side of his body hitting the surface and not if the person falls flat and hit the ground by his stomach or on his back side. According to him the injury no. 8 is also possible if State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 25 something is hit on right side of chest. He has deposed that there were no rope marks on the feet angles and legs and has denied the suggestion that he had given his opinion at the instance of the investigating officer that his opinion is not correct.
Forensic evidence/ witnesses:
PW24 Naresh Kumar Senior Scientific Assistant (Biology) has deposed that on 11.0.42005, ten sealed parcels were received in the office of FSL, Rohini, Delhi out of which Parcel No. 2, 3 and 4 were sealed with the seal of LKB, SMO, Civil Hospital, Delhi; Parcel No. 5, 6, 7 were sealed with the seal of PK, parcel No.8 was sealed with the seal of NB and Parcel No. 9, 10 and 11 were sealed with the seal of PS and Parcel No. 9 and 10 were sent to physics division with its original seal. According to him, on opening of parcel No. 2, which was marked Ex.2, it was found to contain dark brown gauze cloth described as blood gauze; on opening of Parcel No. 3 which was marked Ex.3(a) to 3(f) it contained one jeans pent with belt, one sweater, T. Shirt, Baniyan, Underwear, a pair of socks; on opening of Parcel No. 4 which was marked Ex.4 containing one stone piece; Parcel No. 5 was sent to physics division with its original seal; on opening the Parcel No. 6 which was marked Ex.6 containing one bed sheet; on opening the Parcel No. 7 which was marked Ex.7 containing a bunch of hairs; on opening the Parcel No. 8 which was marked Ex.8 it was containing a few stands of hair. According to the witness, Parcel No. 9 and 10 were sent to physics division with its original seal. He State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 26 has further deposed that on opening the Parcel No. 11 which was marked Ex.11 it was found containing piece of cable wire. He has further deposed that Parcel No. 5, 6, 9, 10 and 11 were sent to physics division on 02.09.2005, as per the query of forwarding letter. According to the witness PW24, on Biological examination blood was detected on Ex.2 and blood could not detected on Ex.3a, 3b, 3c, 3d, 3e, 3f, 4 and 6. He further deposed that on the basis of morphological and microscopical hair in Ex.7 and Ex.8 were found to be human in origin and dis-similar in their characteristics. He has proved his detailed biological report which is Ex.PW24/A bearing his signature at point A and his detailed serological report is Ex.PW24/B bears his signature at point A. This witness has not been examined on behalf of the accused despite opportunity in this regard.
PW25 Amar Pal Singh, Senior Scientific Officer (Chemistry) has deposed that on 12.4.2005, one parcel was received in FSL which was marked to him for examination. The Parcel was marked 1 and was sealed with the seal of LKB, SMO, Civil Hospital, Delhi which was intact, labeled as PMR No. 62/05, viscera of Deepak @ Noni containing Ex.1A and Ex1B in the sealed jars respectively. According to the witness, the Chemical and thin layer chromatography examination, metallic poisons, Ethyl and Methyl Alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and insecticides could not be detected in Ex.1A and Ex.1B. He has deposed that the remnants of Exhibits were sealed with the seal of APS, FSL, Delhi. He has proved his report in this State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 27 regard which is Ex.PW25/A bearing his original signature at point A. This witness has not been examined on behalf of the accused despite opportunity in this regard.
PW26 Devak Ram Senior Scientific Officer (Documents) has deposed that in this case, the documents were received in his laboratory vide letter No. 435/SHO/T. Nagar on 11.4.2003. According to him, the questioned document which were received were marked as Q1 and Q2 (The document Q1 is Ex.PW1/E and the document Q2 is exhibited Ex.PW26/B) and specimen writing and signatures which were supplied to him, were marked as S1 and S2 of Arvind Kumar which is Ex.PW26/C and Ex.PW26/D. He has deposed that he examined the documents with the help of instruments available in his laboratory and gave his opinion as under:
Opinion No.1: The person who wrote red enclosed writing and signature stamped and marked S1 and S2 also wrote the red enclosed writings and signature similarly stamped and marked Q1 and Q2 for which the detailed reasons have been mentioned with the report.
Opinion No.2: The page of ransom note bearing questioned writings marked Q1 match in colour, size and location of ruled line with the page of note book marked X bearing the questioned writing Mark Q2 which indicate that the page of State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 28 ransom note marked Q1 could have been torn from the said note book. The documents which were examined in his laboratory bears the stamp FSL, Government of NCT, Delhi, Document Division.
The witness has proved his report which is Ex.PW26/A bearing his signature at point A. In his cross examination by the defence counsel, the witness has deposed that it is not possible for an expert to decipher from the handwriting which portion was written voluntarily and freely and which portion is written under duress, threat and hesitantly. He has denied the suggestion that an expert can tell the portion of the handwriting which portion was written voluntarily and freely and which portion is written under duress, threat and hesitantly. He has further denied the suggestion that he was deliberately evading a direct answer to the question as he was compelled to give the opinion Ex.PW26/A. PW28 Sh. Parashu Ram Singh, Sr. Scientific Officer (Physics), FSL, Rohini, has deposed that on 02.09.2005 he received five sealed parcels from Biology Division of the FSL, Rohini for their examination and the seals were intact as per the forwarding note. He has deposed that all the sealed parcels were opened by breaking their seals after which he examined all the five parcels having serial No. 5, 6, 9, 10 and 11 and prepared his detailed report which is Ex.PW28/A bearing his signature at point A and in his opinion the wire marked as 5A in Ex. 5 and wire Ex. 9 were part of State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 29 one wire. According to the witness, after examination all the parcels were sealed with the seal of PS, FSL, Delhi.
In his cross examination by Ld. defence counsel, the witness PW28, has testified that he received three pieces of wires in parcel No.5, one piece of wire in parcel No.9 and two pieces of black coloured cable wire in parcel No.11 i.e. amounting to total 6 pieces of wire which he had compared. According to the witness, out of these 6, four wires were of one colour whereas other two wires were of difference colour. The witness has denied the suggestion that he did not correctly examine the said wires before giving his opinion or that he had given his opinion in a stereo type manner.
Police/ official witnesses:
PW5 HC Purshottam has deposed that on 23.05.05, he was posted at Police Station Tilak Nagar and on that day he obtained one sealed parcel duly sealed with the seal of PS from MHC(M) and produced the same before the Court of Ms. Nirja Bhatia, MM, Tis Hazari Courts, Delhi, were the investigating officer was also present. He has further deposed that on 11.04.05, he obtained 11 sealed parcels i.e. four parcels sealed with the seal of LKB SMO, Civil Hospital, Delhi, one pullanda sealed with the seal of NB, three parcels sealed with seal of PS and three parcels sealed with the seal of RK along with form of FSL and sample seals with the seals of impression as mentioned above and deposited ten parcels at FSL, Rohini, vide RC No. 1/21/05. According to him, State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 30 one parcel which was having the seal of LKB SMO, Civil Hospital, could not be deposited in the FSL and on reaching the Police Station, he deposited the said sealed parcels in the Malkhana along with the receipt copy of RC. The witness has further testified that on 12.04.09, he obtained one sealed parcel sealed with the seal of LKB SMO, Civil Hospital from MHC(M) and deposited the same in the FSL, Rohini, vide RC No. 2/21 and after depositing the sealed parcel and reaching the Police Station, he deposited the said received copy of the RC to the MHC(M). He has proved that so long as the parcels remained in his possession, the seal remained intact and the same were not tampered.
In his cross examination, he has deposed that he did not make statement on 05.03.07 and has denied the suggestion that the case property was tampered with by him or that he did not take the sealed parcel as stated by him.
PW6 SI Mahesh Kumar has deposed that on 08.03.05, he was called by Inspector Pratap Singh, Addl. SHO, Police Station Tilak Nagar and accordingly, he reached at Police Station Tilak Nagar and from there, he alongwith Inspector Pratap Singh reached at House No. S-271/175, Vishnu Garden, Gali No.4. According to him, SI Rajesh Kumar was found present there and on his pointing out, he took the rough notes and measurements and on the basis of same, he prepared the scaled site plan which is Ex.PW6/A and the marginal notes on Ex.PW6/A are correct. According to the witness, after preparing scaled site plan, he destroyed the rough notes. He has further deposed that the marginal notes on State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 31 Ex.PW6/A in red ink are not in his hand writing.
In his cross examination, the witness has deposed that none of the family members was present at the spot and when he reached the spot along with Inspector Pratap Singh, second floor of the house was opened and no public person or the resident of house met him on that day. According to him, he did not visit ground floor and first floor of House No. S-271/175, Gali No. 4, Vishnu Garden, Khayala, Delhi and there was a shop on the ground floor which was shown by him in the site plan and so far as he remember it was a general store. He has denied the suggestion that he had not visited the spot or that he prepared the site plan by sitting in the Police Station at the instance of Inspector Pratap Singh.
PW9 HC Ram Swaroop is the Duty Officer who has deposed that on 19.01.05, he was posted at Police Station Tilak Nagar and was working as Duty Officer from 5.00 pm to 1.00 am and on that day at about 8.35 pm, one rukka was produced before him by Ct. Ram Singh on the basis of which, he recorded FIR No.36/05 carbon copy of which is Ex.PW9/A. He has further deposed that after recording FIR, he made endorsement on the rukka which is Ex.PW9/B. According to him, when he started recording FIR, he recorded DD No.15A regarding itlakayami which DD No. 15A is Ex.PW9/C. He has not been cross-examined by the Ld. Defence Counsel.
PW10 Ct. Satish Kumar has deposed that on 18.01.2005, he was posted at Police Post Khayala, Police Station Tilak Nagar and on that day, he was working as DD Writer at State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 32 Police Post Khayala and on that day at about 11.15 pm, Mr. Jitender Pal came to Police Post and recorded his statement in Daily Diary Register as DD No.27 and after recording the statement, the same was read over to Jitender Pal and after admitting the same as correct, Jitender Pal signed on the same. He has proved the photocopy of said DD No. 27 which is Ex.PW10/A and also the copy of DD No. 36 which is Ex.PW10/B and DD No.37 which is Ex.PW10/C. According to the witness both the DDs are in the hand writing of Ct. Vinay Kumar. He has not been cross-examined by the Ld. Defence counsel despite given an opportunity in this regard.
PW13 ASI Raj Singh has deposed that in the intervening night of 19/20.01.2005, he along with constable Vinod was on patrolling duty in the area of Police station Tilak Nagar and when they reached at gali no. 4 Vishnu garden at about 4.30 AM he saw public persons gathered in house no. S-221/175, Gali No.4. According to him, he noticed that a child wrapped in a bed sheet and tied with electric wire was lying there. He has deposed that SI Rajesh Kumar came there and he (witness) took the child to DDU hospital in gypsy where doctor declared the child brought dead and the bed sheet, hair and wires were kept in separate pullandas and sealed with the seal of RK and taken into possession vide seizure memo Ex.PW13/A. The witness has deposed that the bed sheet has strips and green clour spots which he has identified in the court which is Ex.P7; wire is Ex.P8 and the hair are Ex.P9.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 33In his cross examination by defence counsel, the witness has admitted that Ex.P7 (Bed sheet) has neither strips nor green spots. According to him, he was on routine patrolling on that day and left the police station at 12 midnight and had not made any departure entry. He has deposed that he was patrolling along with Ct. Vinod and one/two home guards on that day and when he reached at the spot, SI Rajesh and some constables were already present but he is unable to tell the name of those constables. According to him nobody from the family of the child was present there and the body was wrapped with the wire on chest, abdomen and legs and the body was lying flat on the stomach. He has testified that he remained at the spot for about two/ three minutes and had never visited the spot thereafter. The witness has further deposed that in his presence no writing work was done at the spot and he reached the hospital about 4.45 am but he does not remember the name of the doctor who declared the child brought dead. He is unable to tell if the child was dead or alive when he saw him first. According to PW13 he reached the police station at about 6 to 7 AM while constable Vinod remained at the spot. He has testified that he did not state in his statement that he had reached the spot at 4:30 PM (witness was confronted with his statement Ex.PW13/DA where it is so recorded). He has denied the suggestion that he was never associated with the investigation.
PW15 Ms. Nirja Bhatia MM, has deposed that on 18.3.2005 inspector Pratap Singh moved an application which is Ex.PW15/A for Test identification Parade of case property i.e. State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 34 Loket which application was marked to her by Ms. Anu Grover, MM and she fixed the TIP for 23.3.2005. According to her, 23.3.2005 the investigating officer produced the seal pullands containing locket of oval shape and metallic colour and the investigating officer had brought five locket of similar colour, kind and shape and sizes for mixing with the locket. She has further deposed that the case property i.e. locket was mixed with the other similar lockets brought by the investigating officer and he was directed to leave the chamber after which the witness Smt. Balwant wife of Anil Kumar was called in the chamber who was identified by the investigating officer and she was asked to identified the case property who correctly identified the case property i.e. the locket by touching and picking the same from rest of the lockets and remaining lockets were returned to the investigating officer. The witness has proved the test identification parade proceedings of the locket which is Ex.PW15/B and deposed that copy of the same was supplied to the investigating officer vide his application which is Ex.PW15/C. She has also deposed that on 19.3.2005 the investigating officer of this case Inspector Pratap Singh moved an application for providing permission to take specimen signatures of accused Arvind and Rajesh which application is Ex.PW15/D which was marked to her and she fixed the same for 22.3.2005. She has proved that the investigating officer again moved an application on 21.3.2005 for taking the hair of accused Arind Kumar before the MM Ms. Anu Grover which was marked to the her (witness) on 22.3.2005. According to the witness, on 22.3.2005 the applications State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 35 were put up before her by Inspector Partap Singh for collecting the samples of handwriting and hair of accused Arind Kumar who was produced from JC which application is Ex.PW15/E. The witness has deposed that she inquired from the accused Arvind qua his consent for collecting the aforesaid samples subsequent to the application which had been put up before her on which the accused had consented and had given his handwriting and samples of his hair and after taking the samples, same were given to the investigating officer after sealing it with the directions to open the same at the time of testing in the presence of the doctor. The witness has proved her proceedings regarding taking the handwriting and samples and hair which is Ex.PW15/F and according to her, the investigating officer moved an application for obtaining the copy of the test identification proceedings proceedings which was allowed which application is Ex.PW15/G. In her cross-examination the witness has deposed that she does not remember if the lockets brought by the investigating officer for mixing had any thread in them, but according to her there must be some threads in them otherwise it would have been specifically mentioned. A specific question was put to the witness if the investigating officer did request to keep the photographs, sketch of the lockets brought by him for mixing with the case property for the purposes of record to which the witness answered that there was no occasion for the investigating officer to make any such request to the Link MM conducting the Test Identification Parade of the case property. According to her the properties State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 36 brought for mixing are to be judged to be similar with the articles to be identified and in the event of any doubt or conclusion that the articles brought for mixing are not similar to the case property no observation in respect of the same is made and Test Identification Parade continued.
PW18 Ms. Saroj Maani, Principal MR Viveka Anand Modern School, Tilak Nagar has brought the original record of fee receipt of Deepak Bedi which was issued on 18.1.2005 bearing no. 32218 which is Ex.PW1/F and bears the signatures of Fee Incharge Ms. Tajinder Kaur at point A. According to the witness, on 18.3.2005 on request of the investigating officer Inspector Pratap Singh, she had ordered the Manager of the school to kept the said record in safe custody. This witness has not been cross examined by the accused despite opportunity in this regard.
PW19 HC Ved Pal has deposed that on 20.1.2005 he was posted at Police Station Tilak Nagar as MHCM and on that day SI Rajesh Kumar deposited three pullandas with the seal of RK and he made entry at Sl No. 4206 in Register No. 19, photocopy of which is Ex.PW19/A. He further deposed that on that day, inspector Partap Singh also deposited three pullandas with the seal of LKB, SMO, Civil Hospital Delhi and one sample seal of the same which entered at Sl. No. 4207 copy of which is Ex.PW19/B. According to the witness, on 21.1.2005, Inspector Partap Singh handed over to him five pullandas duly with the seal of PS and he made the entry to that effect vide no. 4208 copy of which is Ex.PW19/C. Thereafter, on 22.1.2005, inspector Partap Singh also State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 37 handed him one pullanda with the seal of PS and he made entry to this effect vide no. 4210 in register no. 19 copy of which is Ex.PW19/D. According to the witness, on 19.3.2005, on the instructions of the IO Iinspector Pratap Singh he handed over one pullanda to ASI Brahm Singh for seeking opinion and he went to DDU hospital and thereafter ASI Brahm Singh came back to PS Tilak Nagar and returned the pullanda with the seal of LKB and one sample seal of LKB to him which were deposited in the malkhana. The witness has further deposed that on the instructions of inspector Pratap Singh, he handed over one pullanda with seal of PS to HC Purshotam for TIP which pullanda were returned on the same day by inspector Pratap Singh with the seal of NB and the same were deposited in the malkhana. The witness has further deposed that on 11.4.2005 on the instructions of investigating officer he handed over 11 pullandas four sealed with the seal of LKB, three sealed with the seal of RK, one sealed with the seal of NB and three sealed with the seal of PS to HC Purshottam for depositing the same in FSL Rohini vide RC No. 01/21 and HC Purshottam got deposited the same in FSL Rohini and obtained the receipt on RC itself and after deposing he came back to the police station Tilak Nagar and handed over to him (witness) the copy of RC and one pullanda with the seal of LKB which were deposited in the malkhana and placed the copy of RC in RC book copy of which is Ex.PW19/E. According to the witness, on 12.4.2005, on the instructions of the IO, he handed over one pullanda with the seal of LKB SMO Civil Hospital to HC Purshottam for depositing the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 38 same in the FSL Rohini vide RC No. 02/21/05 and the HC Purushottam went to FSL Rohini and after deposing the same came back to the police station after obtaining the receipt on the RC and handed over the RC to him (witness) who placed the same in the RC book copy of which is Ex.PW19/F. In his cross examination by defence counsel, the witness PW19 has testified that he had not mentioned the time of deposit against the relevant entries and had not obtained the signatures of the depositor in register no.19. He has denied the suggestion that no pullandas were deposited in malkhana or that he had made the entries on the same day.
PW20 ASI Brahm Parkash has deposed that on 19.3.2005 he was posted in police station Tilak Nagar and on the instructions of Investigating Officer Inspector Pratap Singh, the MHCM has handed over him one pullanda with the seal of Police Station for obtaining the subsequent opinion along with request letter of the investigating officer and the postmortem report No.62/2005. According to the witness, he went to the mortuary DDU hospital and handed over the same to Dr. L. K. Barua for obtaining subsequent opinion. The witness has further deposed that Inspector Pratap Singh also came to the mortuary and obtained the subsequent opinion which is Ex.PW17/B. According to him, the doctor also handed over the pullanda duly sealed with the seal of LKB, SMO, Civil Hospital Delhi along with sample seal of LKB SMO Civil Hospital, Delhi and thereafter he came back to police station and handed over the same to MHCM and pullandas were not State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 39 tempered by anyone during they remained in his custody. This witness has not been cross examined by the accused despite opportunity in this regard.
PW21 HC Ram Partap has deposed that on 20.1.2005 he was posted at Police Post Khiala of Police Station Tilak Nagar and on receipt of DD No.37 he went to DDU hospital and handed over the DD No.37 to SI Rajesh who got preserved the dead body of Deepak @ Noni S/o Anil Kumar under his supervision and he got conducted the postmortem of the dead body of Deepak. According to the witness, after postmortem the doctor handed over three pullandas with the seal of LKB, SMO, Civil Hospital, Delhi which were handed over to Inspector Pratap Singh who took them into possession vide memo Ex.PW21/A bearing his signatures at point A. This witness has not been cross examined by the accused despite opportunity in this regard.
PW22 HC Jaiveer has deposed that on 22.1.2005 he was posted in Crime Team West District as a photographer and he along with crime team Incharge SI Naresh Dagar reached at the spot i.e. Second Floor of House No. S-221/175, Vishnu Garden where on the instructions of the investigating officer, he took the photographs from different angles which are Ex.PW22/P1 to P8 and the negative thereof are Ex.PW22/P9 to P18. This witness has not been cross examined by the accused despite opportunity in this regard.
PW23 Inspector Pratap Singh is the investigating officer who has deposed that on 20.1.05 he was posted as Addl.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 40SHO Police Station Tilak Nagar and on that day the investigations of this case were marked to him pursuant to which he reached at S- 221/75, Gali No. 4 Vishnu Garden where SI Rajesh along with staff and SHO Police Station Tilak Nagar met him there and the further investigation was handed over to him. He prepared Rough site plan at the instance of SI Rajesh, which is Ex.PW23/A bearing his signatures at point A. Thereafter, he recorded the statement of Chowkidar Lalit Bahadur and other police officials and after that he alongwith SI Rajesh reached at DDU hospital where dead body was preserved. He also prepared inquest papers regarding the dead body of Deepak and recorded statement of Anil Kumar which is Ex.PW1/B and statement of Rakesh Kumar which is Ex.PW8/A. He filled up form 25:35 which is Ex.PW23/B and thereafter made a request which is Ex.PW23/C for conducting the autopsy on the dead body of Deepak and also mentioned brief facts vide Ex.PW23/D along with the request proceedings. According to the witness, dead body was subjected to postmortem and after the postmortem examination, the dead body was handed over to the relatives of deceased vide receipt Ex.PW 23/E which bears his signatures at point A and after the postmortem, doctor handed over to Ct. Ram Pratap three sealed parcels along with sample seal which was seized by him vide memo Ex.PW21/A which bears his signatures at point B. He further recorded the statement of the witnesses and made efforts to search for the culprits. According to the witness PW23, the thereafter reached at Gali No. 3, Post Office, Vishnu Garden, where Anil Kumar and Jitender Pal met him and State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 41 they joined the investigation and Anil Kumar produced one ransom note which was seized by him vide memo Ex.PW1/C which bears his signatures at point B. He reproduced the ransom note in the seizure memo and note is Ex.PW1/E and recorded the statement of Anil and Jitender Pal. He has deposed that thereafter, on 21.1.05 he again took up the investigation of this case and at about 1.05 PM, they started searching the accused and Anil Kumar was along with him and at about 4.30pm, both accused namely Arvind and Rajesh (since expired) were apprehended near Park Hospital, Khyala Road and on search of accused Arvind one country made pistol and two live cartridges were recovered for which separate action was initiated against him by HC Ved Parkash. The witness has deposed that accused Rajesh was interrogated and he made a disclosure statement which is Ex.PW23/F bearing his signatures at point A. According to the witness, the accused Arvind also made a disclosure statement which is Ex.PW23/G bearing his signatures at point A. The witness has deposed that both the accused have identified the place S-221/175 after which he prepared the pointing out memo which is Ex.PW23/H and Ex.PW23/J. He has further testified that the accused Arvind was arrested vide memo Ex.PW23/K and Rajesh was arrested vide memo Ex.PW23/L and their personal search were carried out vide memos Ex.PW23/K1 and Ex.PW23/L1. The witness has deposed that Shiv Kumar, the owner of 121/175, Vishnu Garden met them and he recorded his statement and thereafter, accused Arvind had taken out the key of the room which was lying beneath the brick near the door and he State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 42 opened the lock of the room and accused Arvind has produced one plas of about 21cm long which was lying below a cot and he told that he had cut the electric wire with this plas and thereafter tied the dead body of Deepak after wrapping the same into a bed sheet. According to the witness, he prepared the sketch of the plas which is Ex.PW23/M bears his signatures at point A and the plas was put up into pullanda and sealed with the seal of PS and seized vide memo Ex.PW23/N which bears his signatures at point A. Thereafter, the accused Arvind produced one plastic electric wire and told that he has tied the dead body after cutting this wire & this wire is the remaining portion of the wire used by him and tied the dead body. According to the witness, the wire was 6½ in length of green colour and the same was put up in the pullanda and sealed with the seal of PS and seized vide memo Ex.PW23/O which bears his signatures at point A. Thereafter, the accused has produced one linedar copy which was lying on the CD player and CD player was lying on the TV and accused told that he had torn one page from this copy and written a Ransom note which he thrown in the 'jeena' at the house of Deepak. The witness has further deposed that the note book contains 25 full pages and 2 half pages and the said copy was seized vide memo Ex.PW23/P bears his signatures at point A. According to the witness, on the Page No. 24 of the copy 2-3 lines were found to be written in the handwriting of accused Arvind which came to their knowledge later on and he had questioned mark this handwriting when later on was sent to FSL for comparison. The witness has deposed that thereafter the accused State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 43 Arvind produced one plastic can which was lying near the wall in the room and it was found containing some kerosene oil and the plastic can was sealed with the seal of PS and seized vide memo Ex.PW23/Q bearing his signatures at point A. Thereafter, accused Rajesh has produced one 'lodhi pathar' which was lying below a cot and told that this is the same stone from which he gave blow on the head of Deepak. According to the witness, he prepared the sketch of the same which is Ex.PW23/R bearing his signatures at point A and the stone was put up into pullanda and seized vide memo Ex.PW23/S which bears his signatures at point A. Thereafter, he searched the room and found one receipt dated 18-1-05 of MRV School which is in the name of Deepak Bedi, Class 2 for the month of January and February. According to the witness, one artificial locket of metallic black colour with black colour thread was found, one black colour thread was also found near the TV in the room and lockets and threads were put up into match box and converted into pullanda and sealed with the seal of PS and the same along with the receipt was seized vide memo Ex.PW23/T which bears his signatures at point A and the seal after use was handed over to SI Rajesh. According to the witness, thereafter the accused took the police to the roof of the room and accused told that they had thrown the dead body from there. The witness thereafter prepared the site plan i.e Ex.PW23/U which bears his signatures at point A and after completing the investigation the accused were sent to police lockup and case property was deposited in the malkhana. He has also testified that on 22.1.05 he again visited the spot and called the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 44 crime team who inspected the spot and photographer took the photographs. According to the witness, the photographs of the wires were also taken as accused told that when they had thrown the dead body from the roof then dead body fallen on the cable wire due to which the wire got broken. He thereafter called the lineman Amrish, who was the lineman of cable operator and who handed over to him two broken pieces of the wire after opening the same from the dibbies with supporting wire. According to the witness, the length of the pieces of cable wire were 15 feet and length of the supporting wire was 11 feet, the other piece of the wire was 29 feet and the supporting wire was 22 ½ feet. Thereafter, the wires were put up into pullanda and sealed with the seal of PS and seized vide memo Ex.PW14/A which bears his signatures at point X. Thereafter, on 30-1-05, he recorded the statement of one Pankaj Kumar who had stated that accused Arvind and Rajesh were residing as a tenant in the house of Anil Kumar in his neighbourhood and deceased Deepak used to roam with Arvind and Rajesh. According to the witness, on 8.3.05 SI Mahesh Kumar, Draftsman took the rough notes and measurement of the place of occurrence for preparing the scaled site plan and thereafter he handed over the scaled site plan to him. The witness has further deposed that on 19.3.05 the pullanda containing loadhi pathar was taken from MHC(M) by ASI Braham Prakash on his instructions and he had written one application for taking the opinion from the doctor, which application is Ex.PW23/V. The witness has testified that ASI Braham Parkash was sent for taking the opinion of the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 45 doctor and he also accompanied him and doctor had given his opinion which is Ex.PW17/B and thereafter the pullanda was redeposited with the MHC(M). He thereafter recorded the statement of ASI Braham Parkash and verified the fee receipt from MRV School and recorded the statement of Saroj Makani, Principal. According to Inspector Pratap Singh (PW23), on 22.3.05 the hair sample of the accused Arvind were taken after taking the permission from the court and the hair sample were seized with the seal of NB (court seal) and the seal was seized vide memo along with sample seal Ex.PW23/W which bears his signatures at point A. According to him, he also obtained the specimen handwriting of the accused in the presence of the court. Thereafter, on 23-3-05 judicial TIP of the locket was got conducted and thereafter he obtained the copy. He has deposed that Vandana Bedi identified the locket during judicial TIP. The witness has further deposed that on 11-4-05 the pullandas was sent to FSL vide RC No.1/21/05 through HC Purshotam and on 12-4-05 the viscera was sent to FSL through HC Purshotam for depositing the FSL Rohini and thereafter they deposited the receipt with MHCM and he had also sent the specimen handwriting of the accused along with ransom letter and copy seized for comparison to FSL Rohini. According to the witness, he recorded the statement of witnesses and thereafter challan was prepared and filed in the court. The witness has deposed that later on he collected the FSL result which are collectively exhibited as Ex.PX and filed in the court. The witness has correctly identified the accused in the court. He has also State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 46 identified the case property i.e. ransom note which is Ex.PW1/E; the plas which is Ex.P11; one piece of green colour electric wire which is Ex.P12; the note book which was got recovered by accused Arvind which is Ex.P13; one empty jar/ can which was got recovered by the accused Arvind from his house containing kerosene which is Ex.P14; one piece of lodhi pathar which was got recovered by the accused Rajesh which is Ex.P15; the receipt which is Ex.PW1/F which was found from the room; one match box in which one black colour matalic locket with thread and other piece of thread which were found during the search of the room; the locket along with thread is Ex.P1 and separate piece of thread which is Ex.P16; two pieces of cable wire along with supporting wire which were taken into possession by him from outside the house where this incident took place which are collectively Ex.P10.
In his cross examination by defence counsel, the PW23 Inspector Pratap Singh has deposed that the investigations of this case was entrusted to him at around 4:30 am to 6:00 am on 20.1.2005. Witness does not remember and could not answer even approximately as to statements of how many witnesses stood recorded when/ till the investigation was entrusted to him. According to him, he had not given the number of any DD as number 36 in his examination-in-chief. (the witness was permitted to have a look at his examination in chief to see whether he has mentioned about any DD no. 36 dated 19/20.1.2005 and he after seeing his examination in chief, states that there is no mention of State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 47 DD No. 36 in his examination in chief) The witness was again questioned when he took over the investigation, did he find out that who called and from which number, on the information of which the DD No. 36 dated 19/20/1/2005 was recorded and the witness answered that he tried to trace the caller and the number from which the call was made on the basis of which the said DD was recorded but could not find out the same. According to the witness, it is not his concern if DD No. 27 dated 18.1.2005 in respect of the missing of the child, was made at PP Khayala and was verified by the SHO PS Tilak Nagar. The witness, again said, that it was made at PP Khayala but it is not his concern, whether it was verified by SHO PS Tilak Nagar or not. The witness has further deposed that even after looking at the DD no. 36 dated 19/20.1.2005 was received at PP Khyala and was verified by SHO PS Tilak Nagar. Witness, again said that the said DD was verified by SHO Tilak Nagar and that after receiving DD no.36, he did not ask the complainant/ the informer of DD no. 27 dated 18.1.2005, to come at the spot. Witness is unable to say if SI Rajesh or the SHO asked him to come to the spot but he had asked to the complainant to come to the hospital. He had asked the complainant to come to the hospital at about 6-7 am on 20.1.2005 and the complainant reached the hospital at around 9 am. Witness is unable to give either the number of the tenants and the neighbours who he had interrogated or whose statements he had recorded. The witness again said that he had interrogated and recorded the statement of Pankaj who was the neighbour of the complainant. According to the witness, in the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 48 house of complainant there were 10-15 rooms which were let out. He is unable to tell the number of the tenants who were residing in the complainant's house even by approximate guess. The witness was questioned on the aspect if he had prepares the list of the names of the tenants who were residing in the house of complainant and the witness has replied in negative. He has deposed that the SHO had verified the total number of tenants alongwith their names, permanent addresses etc. who were residing in the house of the complainant as per the notification and order of Delhi Government. He does not know if the SHO had that list in his records in the police station. He did not make any efforts to obtain the said list from the SHO after this incident in order to make proper investigations. According to the witness, he recorded two or three statements of the complainant but he is unable to tell when. The witness has further deposed that one was recorded on 20.1.2005. According to the witness, he did not made the site plan from where the alleged ransom note Ex.PW1/B was seized. He thereafter took the specimen handwriting of accused Arvind on 22.1.2005 in the morning at about 9:00 AP and when he took the specimen handwriting of Arvind no one from public was present and he is unable to say who all from the police were present there.
The witness has further deposed that when he saw the dead body of the child, it was having clothes. He has deposed that he does not remember the color of the clothes which were worn by the child, when he saw its body. Witness does not remember the description of the clothes which were mentioned on the pullandas.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 49He is unable to give the description of those clothes which were in the pullanda. He did not verify the school uniform of the child. According to him, he had made the seizure memo of the clothes of the child which were handed over by the doctor, however as the seizure memo was made on behalf of Ct. Ram Parshad he did not get the signatures of the doctor on the said memo. Witnesses has denied the suggestion that in collusion with the complainant he got the pant (blue denim jeans) replaced by grey pant. Witness does not remember the date but states he had gone with SI Mahesh to the site for the preparation of the site plan. According to the witness, there are total two rooms on the second floor of the house S- 221/175, Gali No 4, Vishnu Garden but he does not remember if in his unscaled site plan he had shown two rooms on the second floor of the aforesaid house. (The witness was shown both unscaled site plan which is EX PW 23/U and he after having look at the unscaled site plan has depicted two rooms). Witness has admitted that the unscaled site plan Ex.PW23/U does not mention any room. He also admitted that the site plan is not correct. He has does not know if the house No. S-221/175, Vishnu Garden belongs to one Iqbal Mohd. and another to Usman. He also does not know if there are more than one houses bearing the address S-221/175, Vishnu Garden. According to the witness, being the IO and the responsible officer, he had verified if SI Mahesh had correctly depicted the house number, location of dead body etc. in the scaled site plan or not. (The witness was shown the site plans Ex.PW23/A, PW23/U, PW 6/A who states that in Ex.PW6/A there are three houses State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 50 depicted as S-221/175). The witness has admitted that in his unscaled site plan Ex.PW23/A he had shown the head of the body towards North and the feet towards the south in words as well as in the sketch. Witness is unable to tell whether the site Plan of SI Mahesh is incorrect or the site plan made by him is incorrect. He has denied the suggestion that both the site plans are incorrect and are not as per the actual site. The witness has admitted that there is a gali towards the north as well as towards of the right side of the property S-221/175 but he is unable to give the gali numbers of either towards North or towards right side. According to the witness, the dead body was lying in the gali which was towards the north side of the house near the corner of the both gali. PW23 has further testified that he had made the departure entries on 23.03.2005 when he had gone to the court for the TIP of the locket, but he is unable to tell the number. He was accompanied by HC Purshottam. He has further deposed that he was not already present in the court of Ms Neerja Bhatia, Ld. MM along with the family of the deceased child. According to him, the locket of the child was not totally square but semi square which was metallic and was identified in the court. According to him, he had brought three or four other lockets which he had not purchased from any shop but had just picked them up. According to the witness, the other lockets brought by him for the purpose of TIP were also semi square. The witness has deposed that he can neither give the name, address of the shop or the name of the shop keeper from whom he had brought the other lockets. The witness has also deposed that State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 51 the other lockets which he had brought for the purpose of TIP were not sealed. He has denied the suggestion that he deliberately not mix up the other lockets with Ex.P1. He has admitted that he did not keep the sketches of the locket including Ex.P1 brought for the purpose of TIP. According to the witness, he first visited the spot of the dead body at around 5 AM on 20.01.2005 but he did not find the dead body on the spot. He has deposed that SI Rajesh had reached the spot on 20.01.2005 after his arrival. According to the witness, on 20.01.2005, he recorded the statements of ASI Raj Singh, Jitender Pal, Complainant Anil, Trilochan Singh, Chowkidar Lal Bahadur and others whose names he does not recollect at present. Witness has denied the suggestion that the wires are planted and are not the cable wires. The investigating officer Inspector Pratap Singh has also testified that though he does not remember the date whether it was 19.03.2005 or some other date, but he had gone to the doctor for taking opinion. According to the witness, for the opinion of rori pathar he had gone to the mortuary of DDU Hospital, but he does not remember the name of the doctor. He has deposed that the doctor had given the opinion there and then when he had gone. He had appended his signature in the column of the depositor in the register No.19 when he deposited the pullandas and he had not seen the bed sheet in which the dead body of the child was wrapped. Witness has denied the suggestion that the ransom note, note book, fee receipt etc are all planted or that he unlawfully detained Arvind in the custody and thereafter subjected him to torture a third decree and made him write the ransom note.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 52He further denied the suggestion that he had planted the hair of the accused in the police station. Witness does not remember if the body of the deceased child had shoes on it or not when he saw the body. He has denied the suggestion that the note book and the fee receipt of the child was subsequently collected by him from the house of the child and thereafter planted on the accused. The witness has admitted that the personal belongings of the accused Arvind were neither seized from the house of complainant nor S- 221/175, Vishnu Garden. He has also admitted that the place Park Hospital from where he arrested accused Arvind is busy and crowded area. According to the witness, on 21.01.2005 he had left the police station for the purposes of information of this case and on way they had met the secret informer who informed them about the accused. The witness has further deposed that he did not know the informer prior to this and it was for the first time he had met him. According to the witness, on 21.01.2005 when he had left the police station for the purpose of investigation they had a suspicion that Arvind could be involved in this case but they were not certain. The witness has deposed that the place where he met the secret informer, Arvind was not visible from there as they were informed that Arvind would be coming from that direction. According to the witness, they thereafter laid the nakabandi at a distance of 500 yards from the place from where secret informer informed them. Witness has immediately informed his senior officers about the secret information. He has deposed that SI Rajesh was with him throughout on 21.01.2005, but he does not know whether he was State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 53 with him when he had passed on the secret information to the senior officers. Witness also made the DD entry at the time of leaving the police station but he cannot give the number. The witness has further deposed that before visiting Park Hospital, they went to Vishnu Garden, Shyam Nagar and a couple of other places, the name of which he does not remember. According to the witness, the complainant was not asked to accompany them when they left in search of accused Arvind. According to the witness, he had asked 4-5 passer byes to join the investigation but they left expressing their inability without giving their names and addresses. Witness has further deposed that he did not give them any notice and has admitted that neither the face nor any other part of the deceased child was found to be burn when he first saw the body in the hospital. He did not join the owner or the occupier of the premises bearing No. S-221/175, Vishnu Garden in the proceedings conducted in the second floor of the premises. According to the witness, Shiv Kumar the owner of the house had left after the premises after he recorded his statement stating that he has some personal work. The witness has also deposed that the wife of Shiv Kumar was not joined in any of the proceedings. He has admitted that Shiv Kumar was running a shop at ground floor and he did not join any other neighbours in the proceedings. According to the witness, he had tried to join the investigations in the proceedings but he is unable to give the name and address of any person who was so requested to join the proceedings. He states that he did not called complainant or his brother informing them that they had State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 54 arrested the accused and when they were going to conduct the proceedings. The witness has denied the suggestion that the witnesses were deliberately not joined in the proceedings as no such proceedings were conducted by him at the spot and that they were in fact completed while sitting in the police station at a later stage. The witness has admitted that he had conducted various other investigation and he knows the importance of a death report form that all the columns have to be correctly filed up having its own relevance. According to the witness, he had filed up the death report form which is Ex.PW23/B on time. Witness has admitted that he had mentioned at serial No.1 after 21 on Page 2, Column No. 1 that "it is not applicable". According to him, he mentioned so because he had seen the body in the hospital mortuary where he did not find anything lying around it. He thereafter filed up this form before conducting the postmortem conducted. Witness has deposed that he is not aware that this form is required to be filed up at the place where dead body was recovered. He has admitted that he had filed up this form at the mortuary and not at the place where dead body recovered and he did not mentioned any article found or near the body or the description of each article as required. He has denied the suggestion that the articles claimed by him like bed sheet, wire, handkerchief etc. are all planted. According to the witness, he did not find out where Arvind or Rajesh were working during the time of incident. He also did not find out whether Arvind or Rajesh had gone on their work on 18th, 19th, 20th, or 21.01.05. According to the witness, no chance prints were lifted either from State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 55 the house of the complainant where Arvind was alleged to be living or from S-221/175. According to him the crime team was called but chance print were not lifted or developed. Witness is unable to give the color of plas Ex.P11. He has only given the color of one wire and he does not know the description of the other wires as they were seized by SI Rajesh. According to him, the total number of wires in this case were four and all of them were of green color but he is unable to give the length of all the wires except one which was 6 ½ feet. He is also unable to give the color of the bed sheet which was alleged wrapped on the body of the deceased. The witness PW23 has denied the suggestion that the accused has been falsely implicated in this case or that no disclosure was made by the accused or that the accused never produced any key of S-122/175, Vishnu Garden: or did not get anything recovered including plass, electric wire, copy, can, rori pathar, etc. The witness has further denied the suggestion that no school fees receipt, note book, locket of the child was recovered at the instance of Arvind or that he had planted the witnesses in this case in collusion with the complainant and other police officials. He has also denied the suggestion that he did not fairly and honestly investigate the matter or that no pointing out was done by accused or that all the documents including the memos etc were fabricated sitting in the police station. The witness has further denied the suggestion that no katta or cartridge were recovered from Arvind.
PW27 SI Rajesh Kumar has deposed that on 18.01.2005 he was posted as Incharge, PP Khyala of police station State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 56 Tilak Nagar and n that day one Jitender Pal S/o Manohar Lal R/o WZ-283/04 Gali No.3, West Block, Vishnu Garden, Khyala, Delhi came to police chowki and got recorded missing report of his nephew Deepak @ Nonis vide DD No.27 copy of which is Ex.PW10/A which DD was marked to ASI Kailash. According to this witness, on 19.01.2005 Sh. Anil Kumar, father of Deepk @ Noni came to police station and gave his statement which is Ex.PW1/A and he attested his signature at point A. He made endorsement as Ex.PW27/A bearing his signature at point A and rukka was handed over to Ct. Ram Singh for getting the FIR registered and he got FIR registered and handed over to him the copy of FIR and original rukka and he thereafter took over the investigation of this case. According to the witness, on the intervening night of 19/20.01.2005 he was on patrolling duty and he received DD No.36 the copy of which is Ex.PW10/B. Thereafter he reached gali no.4, Vishnu Garden, Delhi where he found a body of a child aged around 10 years which was wrapped in a bed sheet and the bed sheet was tied with the insulated electric wire near H. No. 221/175 and therefore in the meantime ASI Raj Singh from PS Tilak Nagar also came there and without wasting the time the child was sent to DDU Hospital through ASI Raj Singh in a government vehicle. The witness has deposed that he also reached in the hospital and collected the MLC bearing No.1245 of child on which the doctor had opined the child as brought dead. The witness has deposed that when he saw the dead body he felt that it matched with the description of the missing child as reported State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 57 to the police in the present case by his father and therefore he informed the complainant Anil Kumar to come to the hospital and identify the body on which Anil Kumar came in the hospital and confirmed the body to be of his son Deepak @ Noni whose missing report he had lodged. The witness has further deposed that, ASI Raj Singh handed over to him the bed sheet, wire and some hairs which were found after opening the bed sheet wrapped around the body. He put up the same into three different pulanda and sealed with the seal of RK and seized vide memo Ex.PW13/A bearing his signature at point B and the seal after use was handed over to ASI Raj Singh. The witness has deposed that he came back at the spot from where the dead body was recovered where Inspector Pratap Singh was already present. He thereafter handed over to him all the investigation papers as investigation was handed over to him. Thereafter he along with Inspector Pratap reached DDU hospital where dead body of child was in the custody of Ct. Ram Singh and Inspector Pratap Singh completed the inquest proceedings and postmortem Examination of the dead body was conducted and the dead body was handed over to the relatives and recorded statement of witnesses. According to the witness, after the postmortem Examination, doctor handed over the pulanda containing clothes worn by the deceased, viscera, blood sample of the deceased alongwith sample seal to Ct. Ram Pratap which were sealed with the seal of LKB, SMO Civil Hospital who handed over the same to the IO and the same were seized vide memo Ex.PW21/A bearing his signature at point C and the case property was deposited in the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 58 Malkhana. The witness has deposed that he along with Inspector Pratap Singh came back to the spot and the IO recorded statement of Lalit Bahadur and thereafter the IO recorded his statement. He has also deposed that on 21.01.2005 on the asking of investigating officer, he went to police station Tilak Nagar and thereafter he joined the investigation with other police officials and went in search of the accused and on the way, secret informer met the investigating officer and thereafter the police officials along with the secret informer reached at Park Hospital, Khyala and on pointing out of the secret informer the accused Arvind and Rajesh (expired), were apprehended. According to the witness, HC Ved Prakash took the casual search of Arvind and one katta was recovered from the left dubb of the pant and two live cartridges were recovered from the right pocket and HC Ved Prakash conducted the investigation regarding the recovery of Arms and Amunition separately. Thereafter, the accused were interrogated and arrested vide memo Ex.PW23/K and Ex.PW23/L and their personal search was conducted vide personal search memos which are Ex.PW23/K-1 and Ex.PW23/L-1 and the accused made their separate disclosure statement which are Ex.PW23/G and Ex.PW23/F bearing his signatures at point B in both the documents. According to the witness, thereafter both the accused took the police party at H. No. S-221/175, Gali No.4, Vishnu Garden, Delhi on the second floor and pointed out the room that this is the same room where they alongwith their associates has committed murder of Deepak @ Noni on which the pointing out State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 59 memo was prepared which is Ex.PW23/H bearing his signature at point B. The witness has further deposed that the landlord namely Shiv Kumar came there and the investigating officer recorded his statement U/s 161 Cr. P.C. Thereafter, the accused Arvind had opened the lock of the room with the help of key which was lying in a place between the bricks and produced one plier of about 21 Cm long which was lying below a cot and told that he had cut down the electric wire with this plier and thereafter tied the dead body of Deepak after wrapping the same into the bed sheet. The witness has further deposed that the investigating officer prepared the sketch of the plier which is Ex.PW23/M bearing his signature at point B after which the plier was put up into a pulanda and sealed with the seal of PS and seized vide memo Ex.PW23/N bearing his signature at point B. The witness has further deposed that, thereafter the accused produced one plastic electric wire and told that he had tied the dead body after cutting this wire and this wire is the remaining portion of the wire used by them in tying the dead body. The witness does not remember the exact length of the wire. According to him, the wire was put up into a pulanda and sealed with the seal of PS and seized vide memo Ex.PW23/O. He further deposed that the accused Arvind also produced one plastic can lying in the room and it was found containing some Kerosene Oil which can was seized and sealed with the seal of PS and taken into possession vide Ex.PW23/Q bearing his signature at point B. The accused Arvind further produced a linedar copy which was kept on the CD player and accused told that he had torn a page from this State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 60 copy and written a ransom note for demanding Rs.2 lacs which he thrown in the stairs in the house of Deepak. He has deposed that the note book contains 23 full pages and two half pages and the copy of seized vide memo Ex.PW23/P bearing his signature at point B. The witness PW27 has further deposed that the accused Rajesh produced one lodhi patthar which was lying below the cot and stated that this is the same patthar with which he gave blow to Deepak on which the investigating officer prepared the sketch of the same which is Ex.PW23/R bearing his signature at point B and the same was put up into a pulanda and sealed with the seal of PS and seized vide memo Ex.PW23/S bearing his signature at point B. According to him, on the search of the room one receipt No. 32218 dated 18.01.2005 of MRV School of Mukhram Park which was in the name of Deepak Vedi for the month of January and February. He has further deposed that, one artificial locket of black metallic colour with black thread was found and one piece of another thread was also found there and the said locket and threads were put up into a match box and converted into a pulanda and sealed with the seal of PS and seized vide memo Ex.PW23/T bearing his signature at point B and the seal after used was handed over to him. According to the witness, thereafter the accused took the police party at the roof of the room and accused Arvind told them that they had thrown the dead body of Deepak @ Noni from there, due to which it got entangled with the cable wires and thereafter fell down. The witness has further deposed that the investigating officer thereafter prepared the site on his instance and after completion of State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 61 the investigation, the accused were sent to police lock up and the case property was deposited in the Malkhana. PW27 has further deposed that, on 08.03.2005 on asking of Inspector Pratap Singh he went to the police station and from there alongwith the investigating officer and SI Mahesh (Draftsman) reached at the spot he took the rough notes and measurements for preparing the scaled site plan. He has identified the accused Arvind in the court as well as the case property i.e. the plier as the same which was got recovered by the accused Arvind which is Ex. P.11; the green coloured electric wire as the same which was got recovered by the accused Arvind which is Ex. P.12; the note book as the same which was got recovered by the accused Arvind which is Ex.P.13; the empty jar/can as the same which was got recovered by the accused Arvind containing kerosene oil which is Ex. P.14; the rodhi/ patthar as the same which was got recovered by the accused Arvind which is Ex.P.15; the black coloured metallic locket with with thread and other piece of thread as the same which were found during the search of the room and the locket along with thread is Ex. P.1 and separate piece of thread is Ex. P.6; the bed sheet as the same which was found wrapped around the dead body of Deepak which is Ex. P.7; three pieces of electric wire of green colour as the same with which the dead body was found tied which is Ex. P.8.
In his cross examination, the witness PW27 has admitted that the father of the deceased child was present in the court (on the date of his deposition in the court) and was sitting. According to the witness, on 18/01/2005, Mr. Jitender Pal did not State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 62 hand over any photograph of the child to him. He is unable to say if the same was given to ASI Kailash on that day. He has deposed that on 19/01/2005 when Sh. Anil Kumar came to the police station he asked him for the photograph of the child and he said that he would bring the same for him (witness). He deposed that he did not bring the same to him (witness) on 19/01/2005. According to the witness, he had handed over the rukka to Ct. Ram Singh at 8 PM on 19/01/2005 (again said it was not given at 8 PM but at 8:15 PM). The witness has further deposed that he had made the departure entry when he left for patrolling on 19/01/2005 but he does not remember the number. According to the witness, he did not go to the house of Sh. Anil with regard to the missing report of the child Deepak on 18/01/2005 however he does not know if ASI Kailash had gone there or not. He has deposed that he visited the house of Mr. Anil on 19/01/2005 to make inquiries with regard to the missing child Deepak and that he had gone there at around 10:30- 11 PM. He made inquires from the neighbours but he cannot give the name and address of any neighbours as they refused to give their names and addresses. He did not asked Mr. Anil or any of his family members about the name and the address of any neighbours who had refused to give their names and addresses. According to the witness, the house of Mr. Anil is two stories and he was residing on the second floor of his house, whereas tenants including the accused were staying on first floor of the house. The witness has stated that he did not meet any tenants on the first floor on 19/01/2005 and left the police station for patrolling on 19/01/2005 State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 63 at around 12-12:30 PM. According to the witness, even prior to leaving for patrolling at 12-12:30 AM (Midnight) on 19/01/2005, when he had gone to the house of Mr. Anil for investigation, he had made the departure entry in this respect but he is unable to give the DD number of the same. According to the witness, he came back from the house of Mr. Anil Kumar and in respect of investigation of this case at around 12 AM and made the arrival entry but he is unable to give its number. According to him, when he had went to the house of Mr. Anil on 19/01/2005 he had met only Mr. Anil. According to PW27, on the intervening night of 19/01/2005 when he reached the spot at around 5 AM he was accompanied by one Ct. whose name he does not remember. According to him, he was the first one from the police officials to reached the spot and till then no other police official were present there and after 10 minutes of his arrival ASI Raj Singh had come on the spot. He has admitted that at that point of time till he was present on the spot Insp. Partap Singh had not come to the spot and that Insp. Partap Singh did not come to the spot on that day i.e. intervening night of 19/01/2005 and 20/01/2005 or till the dead body was sent to the hospital. The witness has deposed that he did not make inquires from any one from the spot where the dead body was found as according to the witness, there was no body present at the time where the dead body was lying and therefore no inquires were made. He further deposed that he also deemed fit to first go to the hospital as he was not sure whether the child was yet alive or not. He unwrapped the child from the sheet to ascertain whether the child was alive or not and as State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 64 the body appeared to be warm, he sent it to the hospital immediately. The witness has deposed that he was already having the contact numbers of Mr. Anil prior to when he reached the spot and he had taken the same when he come to the chowki on 19/01/2005. He has further deposed that he had already seen the photograph of the child when he went to the house of Mr. Anil in the evening of 19/01/2005 and seen the big photograph of the child but he did not call up Mr. Anil immediately from the spot to inform him that his child was lying on the spot as he did not want to waste time and wanted to send the child immediately to the hospital. According to the witness, he had not personally accompanied the child and the child was sent in the government gypsy with ASI Raj Singh to the hospital. He came back to the spot at about 8-8:15 AM on 20/01/2005, and handed over the entire investigation to Insp. Partap who conduct further investigation in the matter while he remained with him. According to the witness, in his presence IO Insp. Partap Singh only made inquires from chowkidar Bahadur and thereafter he along with Insp. Partap Singh together left the spot after about half an hour. He had seen the body of the child in the hospital but he did not notice either the face or other part of the body of the child in burnt condition. Witness is unable to tell the number of the gali shown on the northern side of the house in Ex.PW23/U but he knows that the gali on the eastern side of the said site plan is gali No. 4 on which the entrance of house No. 221/175 opens. The witness is not aware if there are more than one houses bearing No. 221/175 in the same area. He is unable to tell State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 65 who opened the body wrapped in the bed sheet, tied with the wires but according to him it was in the hospital, he was only handed over the bed sheet, wire and the hair. He has deposed that Mr. Anil arrived in the hospital at around 6:45-7 AM. Witness has deposed that he was handed over the aforesaid articles at about 6:15 AM i.e. prior to the arrival of Mr. Anil. According to the witness, as the body was not unwrapped in his presence, so he cannot say whether it was unwrapped by ASI Raj Singh or any body else. He deposed that the body was lying at the distance of 5-6 feet from the house No. 221/175. He is unable to give any other house number which was situated near the body. He has admitted that the area in question is thickly populated with a large number of houses both facing and adjoining each other and that the place where the body was found there were large number of other houses on the other side of the gali as well. Witness had deposed that he did not join the investigation with Insp. Partap Singh on 20/01/2005 after 8:15 AM. The witness has also deposed that his statement and the statement of Lalit Bahadur was not recorded on 20.1.2005 and it was recorded on 21.1.2005. According to the witness, apart from whatever he had deposed in his examination in chief, nothing was done either by him or by the investigating officer on 20.1.2005. He has deposed that on 21.1.2005, he along with the investigating officer started the investigations at about 3 to 3:30 pm and apart from him and the investigating officer, there was HC Ved Prakash but other names he does not remember. The witness has further deposed that when they started the investigations on 21.1.2005 he State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 66 knew the name of the accused. According to him, on 19.1.2005, 20.1.2005 and 21.1.2005 (till the time he started the investigations on 21.1.2005), neither he nor the investigating officer had recorded the statement of any person to the effect that where or with whom the deceased child had gone. The witness has again said that he had recorded the statement but the witness does not remember the name of the person whose statement he had recorded but according to him, the statement may have been of any relative or the family member of the child and after refreshing his memory after looking at the case diaries, he stated that there was no such statement to this effect. According to the witness, he had not gone and he has no knowledge if Inspector Pratap had gone to investigate from the shopkeeper where the child was supposed to have gone to buy sugar. The witness has deposed that he did not question or investigate any of the neighbours of friends of the child to inquire if the child was in their company or about the whereabouts of the child from the day he went missing as he did not get time. He is unable to say if Inspector Pratap Singh had made any such inquiry. He has deposed that on 20.1.2005 or on 21.1.2005 till 3:00 pm i.e. when he joined IO Inspector Pratap Singh, he did not inquire from the residents of the gali where the dead body of the child was found if the child was ever seen in that gali or in the company of anyone as he did not have the investigations with him on 20.1.2005 or 21.1.2005. He has further deposed that the secret informer was not with them when they left the police station on 21.1.2005 and he met them at Khyala near the bus stand No. 830 and the secret informer State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 67 was standing at a distance of 50-60 yards from the accused. He has further deposed that the secret information met them 'By Chance' at the bus stand and they had no information before hand that he would meet them there. According to the witness, they had not gone to any other place except for Khayala on 21.1.2005 in search of accused but he does not know if the investigating officer had passed on the information given by the secret informer to any senior official. The witness has further deposed that, the area of Park Hospital is a busy and a crowded area with lot of public and traffic. According to the wintess, neither he nor in his presence, the investigating officer asked anyone from public or Park Hospital to join the proceedings of arrest, recovery, disclosure, interrogation etc. PW27 has further testified that he did not consider it necessary to go to the area where the dead body of the child was recovered and to inquire from the residents regarding the residence, whereabouts or any other particulars of the accused persons. He has deposed that he cannot say whether Inspector Pratap Singh made inquiries in this regard or not but according to him, he did not consider it appropriate to made the above said inquiry as neither the accused not the child was residing in that gali or that area. The witness has further deposed that before 3:00 pm on 21.1.2005 i.e. when he started on the investigations he had gone to the house of the accused Arvind to apprehend/ search for Arvind. He had gone to the house of Arvind on 20.1.2005. The witness again said that, they had gone to his house on 19.1.2005 in the night. According to the witness, the address where he had gone to locate Arvind was State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 68 283/4, Glai no.3, West Block, Vishnu Garden. He has admitted that the accused Arvind was not residing at house no. S-221/175, Gali No. 4, Vishnu Garden, Khyala, Delhi. The witness as further deposed that the head of the dead body of the child was towards south where it was lying in the gali and the depiction of the dead body in the site plan Ex.PW23/A is correct. He has deposed that his deposition in this regard is correct and the noting of the investigating officer on Ex.PW23/A that the feet of the body was towards south is incorrect. He does not know if the investigating officer had joined the owner or the landlord of house No. S- 221/175, Gali No. 4, Vishnu Garden Khayala on 21.1.2005 for any of the proceedings claimed to have been conducted there. According to the witness, on 21.1.2005 no personal belonging of the accused like clothes, shoes etc. were recovered from S-221/175, Gali No. 4, Vishnu Garden, Khyala. According to him, he did not find out and is unable to say if the investigating officer made any efforts to find out where the accused Arvind was employed or the name of his employer or his working hours and even he did not find out if the accused had gone for this work on 18th, 19th, 20th or 21.1.2005. According to him, he and the investigating officer did not make any efforts to get any chance prints lifted from the spot of occurrence i.e. S-221/175, Gali No.4, Vishnu Garden. He has deposed that the locket Ex.P-1 which was recovered from S- 221/175, Gali No.4, Vishnu Garden had the initial of Alphabet 'D' i.e. signifying the name of deceased child Deepak. He has deposed that only one bed sheet was recovered in this case i.e. in which the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 69 child was wrapped. He is unable to tell whether it was a single bed sheet and also double bed sheet or the colour of the said bed sheet but according to him it had the print of flowers and leaves. According to him, there were total four wires recovered in this case and all the four wires were of green colour but he is unable to give the length of all the four wires but states that he can only give the length of one piece of wire which was six and a half feet. He is unable to give the length of other pieces of wire and also cannot give, even by approximation.
This court has observed during the cross-examination of the witness that the can which was produced in the court was transparent and was less than seven and half inches in measurement; the bed sheet produced in the court was having geometrical black-cream square/ block design and the locket was plain oxydized oval shaped locket and was not in shape of alphabet 'D'.
The witness, PW27 has further deposed that the size of the plastic can was one feet approximately and it was of white colour and there was only one can (i.e. container) in the room and that the can which was shown in the photograph Ex.PW27/DA is not the same can. He is unable to tell whether the can which is depicted in Ex.PW27/DA is the same can or not. He has denied the suggestion that he and the investigating officer have falsely implicated the accused Arvind in this case or that no disclosure was made by the accused or that nothing was got recovered by him. He further denied the suggestion that nothing was recovered or seized State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 70 or sealed in his presence or that no pointing out was done by accused or that nothing was seized or sealed in this case at the instance of the accused. He has further denied that the case properties have been planted by him and the investigating officer in this case to fabricate the evidence or that no katta or cartridges were recovered from accused Arvind. He has no idea what happened in the case which was instituted against Arvind under Arms Act as he has not deposed in the said case. He has denied the suggestion that lodhi-pathar, piler, plastic can, wire, notebook etc. have been planted upon the accused or that he did not fairly investigate the case or that he along with the investigating officer in connivance with the complaint have falsely implicated the accused instead of making the fair investigation and finding out the real culprit. He has further denied the suggestion that he has deposed falsely at the instance and in connivance with the investigating officer.
Statement of the accused/ defence evidence:
After completion of prosecution evidence, statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to him which he has denied. He has stated that he is innocent and has been falsely implicated in the present case. According to him, he has nothing to do with the present case and he was forced to write the alleged ransom note.State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 71
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State as well as the Ld. Amicus Curiae appearing on behalf of the accused. I have also gone through the detailed written synopsis/ memorandum of arguments filed on behalf of the accused and the testimonies of the various witnesses examined by the prosecution. I propose to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.
Sr. Name of the Details of Deposition
No. witness
PUBLIC WITNESSES/ EYE WITNESSES
1. Anil Kumar He is the father of the deceased child Deepak and has
(PW1) deposed on the following aspects:
1. That on 18.01.2005 at about 5.00 pm his son
Deepak who was aged about ten years, had gone to purchase sugar from a nearby shop but did not turn up from the market.
2. That at that time, Deepak was wearing a blue color T-Shirt and blue colour jeans pant and white colour sport shoes and the fact regarding his missing was conveyed to him by his wife on telephone on which he immediately reached his house at about 6.30 p.m. and tried to trace out his son in the neighbourhood but Deepak could not be traced.
3. That on 19.01.2005, he lodged a missing report of his son in the Police Station vide statement Ex.PW1/A.
4. That he was having some tenants in his premises but he does not recollect their names and his brother Jitender Kumar also lodged a report regarding missing of his son in the Police Station.State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 72
5. That on 19.01.2005 at about 8.00 pm, Police officials visited his house and made enquiry from his tenants and his wife and at that time, his tenants were present in their rooms except the accused Arvind and Rajesh and the room which was under their tenancy was locked.
6. That on 20.01.2005, he received a message from the Police officials that his son Deepak had been murdered and he was called at DDU hospital where he identified the dead body of his son. He has proved that his statement was recorded by the Police regarding identification of dead body which statement is Ex.PW1/B and the statements of Trilochan Singh and his brother were also recorded in his presence.
7. That after the postmortem, he took the dead body of his son and after performing the last rites, they reached their residence and when he was sitting near the stair case of his house, he noticed one paper lying near the electric motor. He has testified that he lifted the said paper went through the said letter wherein Rs. 2 lacs were demanded on which he narrated the said fact to his brother Jitender Kumar.
8. That somebody rang to the police pursuant to which Inspector Pratap Singh and other police officials reached his house to whom he handed over the said letter which was seized vide memo Ex.PW1/C.
9. That on 21.01.2005, he came to know that accused persons had been arrested.
10.He has proved having handed over one photostat copy of SARAL form which is Ex.PW1/D. He has correctly identified the accused Arvind Kumar as the same person who was his tenant and was residing in a room along with one Rajesh. He has also identified the page of small copy on which five lines have been written as the same which was found lying near electric motor which was installed near the stair case of his house and was handed over to SI Pratap Singh, which letter is Ex.PW1/E and according to him, he signed on it at his residence when it was handed over to the police on 20.01.2005 and his brother State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 73 Jitender also signed on the same in his presence. PW1 has been shown one fee receipt in the name of Deepak Bedi dated 18.01.2005 on which the witness deposed that the said receipt is that of his son namely Deepak Bedi which was in the pocket of his son when he left the house and did not return back, which receipt is Ex.PW1/F. He has also identified the clothes of his deceased son i.e. the gray pant with belt which is Ex.P-1, Blue T-shirt which is Ex.P-2, one sweater which is Ex.P-3, baniyan which is Ex.P-4, underwear which is Ex.P-5 and one pair of blue socks which is Ex.P-6.
2. Smt. She is the wife of Anil Kumar (PW1) and the mother of Vandana deceased Deepak. She has deposed that:
(PW2) 1. On 18.01.05 her son Deepak had gone to the market for taking the sugar at 5.00 p.m. and was wearing a sleeper, blue colour pant, blue colour T. Shirt blue, colour socks, half red colour sweater and he was also wearing a pandal in black colour thread which pandal was made of metallic colour.
2. Her son Deepak came back after 10 minutes without purchasing sugar and when he came back when he changed into his white colour shoes and then again left the residence after than he had not turned back.
3. She went to Tis Hazari Court on 23.03.05 and before a lady MM, she was called inside the Chamber and identified the locket along with thread Ex.P-1 of her son, which he was wearing when he left the residence.
3. Shiv Kumar He was the landlord of accused Amit (PO) and has (PW3) deposed on the following lines:
1. That he is carrying on business at H. No. S-
221/175, Gali No. 4, Vishnu Garden, Khayala, Delhi.
2. That on 01.01.05, two persons namely Amit and Arvind came at his residence for taking his room on rent and he let out one room on the second floor of his aforesaid premises on a monthly rent of Rs.600/.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 743. That on 18.01.05 at about 10.30 pm, accused Arvind along with Rajesh came down from the second floor of the rented room and went outside and on 19.01.05 at about 10.00 pm, accused Arvind and Rajesh came back in the rented room.
4. That he used to close the main gate of his house at about 11.00 pm and opened it at about 6.00 am and used to keep the key with him.
5. That Amit was present in the rented room on 19.01.05 (to be read as 18.1.2005 and appears to be a typographical error) when Rajesh and Arvind arrived in the tenanted room and Amit left the rented room at about 7.00 am on 19.01.05.
6. That on 20.01.05, accused Arvind and Rajesh came on the first floor at about 5.30 am and gave a call to him to open the main door as they had to go to somewhere and he opened the lock.
7. That the accused Arvind and Rajesh left the tenanted premises and at about 7.00 am when he opened his shop, he came to know that a dead body of a child was lying in the street near his house.
4. Trilochan He is the witness of last seen and has deposed that:
Singh (PW4) 1. He knew Anil Kumar very well who used to live in Gali No.3, West Block, Vishnu Garden and also knew the person who was living as a tenant in the house of Anil Kumar.
2. On 18.01.05 at about 6.00/6.30 pm, he was going on Guardawara Mandir Road on his two wheeler scooter and when he reached near the shop of Aggarwal Jewellers, N-Block, Vishnu Garden, he saw accused Arvind Kumar and Rajesh who were coming with a child namely Deepak s/o Sh. Anil Kumar and accused Arvind had put his hand on the shoulder of Deepak and accused Arvind was laughing and was going with Deepak and Rajesh.State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 75
3. On the next day i.e. 19.01.05, he had gone to Karnal for his personal work and came back from Karnal in the night of 19.01.05.
4. On the next day i.e. 20.01.05 in the morning, he came to know that Deepak s/o Sh. Anil Kumar had been murdered and his dead body was recovered from S-Block, Gali No. 4, Vishnu Garden, Delhi after which he went to the house of Anil Kumar and came to know that all the family members had gone to DDU hospital as postmortem of Deepak was being done there.
5. He also went to DDU hospital where police officials met him and he disclosed the facts to the police officials.
He has correctly identified the accused Arvind Kumar in the court.
5. Jitender He is the brother of Anil Kumar (PW1) who has Kumar (PW7) deposed on the following lines:
1. That Deepak was son of his brother Anil and when Deepak not turned up up to 11.00 pm on 18.01.05, he went to Police Post Khyala and lodged a missing report of Deepak which was recorded vide DD No.27 dated 18.01.05 at Police Post Khayala, copy of which DD is Mark A.
2. That later on he came to know that Deepak has been murdered and on 20.01.05 Deepak was cremated by him and other family members.
3. That he and his brother Anil Kumar are residing in the same house and on 20.01.05, when he reached at his house, Anil Kumar was found sitting on the ground floor near the staircase and Anil Kumar showed him one letter in which "tumhara beta mere paas hai, mera baap bimar hai mujhe 2 lacs rupee chahiye. Agar Police ko bataya to samjho tumhara beta mar gaya. Paise kab or kaise baad me bataunga" were written.
4. That police officials also reached at their residence on which the said letter / note was handed over to the Police and he signed the same when it was handed over to the police.State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 76
6. Rakesh He is also the brother of the complainant Anil Kumar, Kumar (PW8) who has deposed that on 20.01.05, he went to DDU hospital Mortuary and identified the dead body of his nephew Deepak vide his statement Ex.PW8/A.
7. Pankaj This witness has deposed that:
Kumar 1. He is running an auto repair shop on the ground (PW11) floor of his house bearing no. WZ-283/03, Vishnu Garden and Anil Kumar is residing opposite to his workshop in house no.283/04, Vishnu Garden.
2. Deepak @ Noni was the son of Anil Kumar and he was known to him and Deepak used to roam around with accused Arvind Kumar at different places.
3. Anil Kumar had rented out his premises and out of them three to four were known to him.
He has identified the accused Arvind Kumar in the court as the boy who was living as tenant in the house of Anil Kumar in the month of November, 2004 along with Rajesh Kumar.
8. Lalit This witness has deposed on the following lines:
Bahadur 1. That on the intervening night of 20.1.2003 he was (PW12) working as watchman of locality of S Block Vishnu Garden and on that day from 9PM onwards he started taking round of the locality and passed from in front of the house No. S-221/175, Gali No.4, Vishnu Garden but nothing was found.
2. That while taking round at about 4 a.m., he noticed something lying in front of house No. S-221/175, Gali No.4, Vishnu Garden wrapped in a bed sheet and tied with a wire.
3. That he informed the neighbours and somebody informed the police and police came at the spot and checked the bed sheet and then it was revealed that the bed sheet contained a dead body of 8/9 years male child.
4. That the witness has deposed that the police thereafter recorded his statement and the dead body was sent to the hospital.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 779. Amrish This witness was running business of Cable TV in the Kumar area of Vishnu Garden and had given connections in S (PW14) block and J Block, Vishnu Garden. He has deposed that:
1. On 19.1.2005, he went to collect the monthly payment from the customers and also went to house no. S-211/175, Vishnu Garden and when he checked the cable he found the cable wire in proper condition.
2. On 22.1.2005 he was called by the police officials at S-221/175 when he noticed that the cable wire and its support wire were broken and he, on the direction of the police officials, opened the cable wire and support wire which were taken into possession by the police.
3. The length of the cable wire and support wire on the one side was 15 ft. and on the other side it was 30 ft.
which were kept in a polythene which was sealed with the seal but he does not remember the initials of the seal and thereafter the same was taken into possession vide seizure memo Ex.PW14/A.
4. The wires were of black colour which he has identified in the court which are collectively Ex.P10.
MEDICAL WITNESSES/ EVIDENCE
10. Dr. Bhawna She has proved the MLC of an unknown person aged (PW16) about 13 years which MLC was prepared by Dr. Vishal Sehgal which MLC is Ex.PW16/A.
11. Dr. L.K. This witness has proved the having conducted the Barua postmortem on the body of deceased child Deepak @ (PW17) Noni which report is Ex.PW17/A. He has proved that all injuries were antemortem in nature except injury no. 8, the age of the injury was one and half days duration approximately, the injury no. 8, injury to right side of occipital area of the head in laceration of liver and fracture of right side ribs were postmortem in nature and that the cause of death was due to asphyxia following smothering and time since death was about one/ half day approximately.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 78He has also proved that he had given his opinion on the stone (lodhi Pathar) and he was of the opinion that injury no.9 observed on the left temporal area of the head could be possible by this stone. He has proved that the injury no. 9 was sufficient enough to cause death in ordinary course of nature though as per his opinion the immediate cause of death of deceased Deepak was due to asphyxia.
FORENSIC EVIDENCE/ WITNESSES
12. Naresh He is the Senior Scientific Assistant who has proved Kumar the detailed biological report which is Ex.PW24/A and (PW24) the serological report which is Ex.PW24/B. According to him, on Biological examination blood was detected on Ex.2 and blood could not be detected on Ex.3a, 3b, 3c, 3d, 3e, 3f, 4 and 6.
13. Amar Pal He is the Senior Scientific Officer (Chemistry) who has Singh proved his report which is Ex.PW25/A according to (PW25) which the Chemical and thin layer chromatography examination, metallic poisons, Ethyl and Methyl Alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and insecticides could not be detected in Ex.1A and Ex.1B.
14. Devak Ram He is the Senior Scientific Officer (Documents) who (PW26) has proved having examined the ransom note and the note book got recovered by the accused. As per his opinion the person who wrote red enclosed writing and signature stamped and marked S1 and S2 also wrote the red enclosed writings and signature similarly stamped and marked Q1 and Q2. He has further proved that the page of ransom note bearing questioned writings marked Q1 match in colour, size and location of ruled line with the page of note book marked X bearing the questioned writing Mark Q2 which indicate that the page of ransom note marked Q1 could have been torn from the said note book His detailed report is Ex.PW26/A.
15. Parshu Ram He is the Senior Scientific Officer (Physics), FSL, Singh Rohini who has proved having examined the five (PW28) parcels having serial No. 5, 6, 9, 10 and 11 and prepared his detailed report which is Ex.PW28/A and in his opinion the wire marked as 5A in Ex. 5 and wire Ex. 9 were part of one wire.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 79POLICE/ OFFICIAL WITNESSES (proving investigations)
16. HC He is a formal witness who has proved that on Purushottam 23.05.05, he obtained one sealed parcel sealed with (PW5) the seal of PS from MHC(M) and produced the same before the Court of Ms. Nirja Bhatia, MM, Tis Hazari Courts, Delhi, were the investigating officer was also present. He has further proved having deposited the various pullandas to FSL Rohini and has proved that so long as the parcels remained in his possession, the seal remained intact and the same were not tampered.
17. SI Mahesh He is a formal witness being the Draftsman who has Kumar proved having prepared the scaled site plan which is (PW6) Ex.PW6/A.
18. HC Ram He is also a formal witness being the Duty Officer who Swaroop has proved having recorded the FIR of the present (PW9) case bearing No.36/05 carbon copy of which is Ex.PW9/A and his endorsement on the rukka which is Ex.PW9/B. He has also proved the DD No. 15A which is Ex.PW9/C.
19. Ct. Satish He is also a formal witness being the DD writer who Kumar has proved the DD No. 27 which is Ex.PW10/A and (PW10) also the copy of DD No. 36 which is Ex.PW10/B and DD No.37 which is Ex.PW10/C which are in the hand writing of Ct. Vinay Kumar.
20. ASI Raj He has deposed on the following aspects:
Singh 1. That in the intervening night of 19/20.01.2005, he (PW13) along with constable Vinod was on patrolling duty in the area of Police station Tilak Nagar and when they reached at gali no. 4 Vishnu garden at about 4.30 AM he saw public persons gathered in house no.S-221/175, Gali No.4.
2. That he noticed that a child wrapped in a bed sheet and tied with electric wire was lying there.
3. That SI Rajesh Kumar came there and he (witness) took the child to DDU hospital in gypsy where doctor declared the child brought dead and the bed sheet, hair and wires were kept in separate pullandas and sealed with the seal of RK and taken into possession vide seizure memo Ex.PW13/A. State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 80 He has identified the bed sheet in the court which is Ex.P7; wire which is Ex.P8 and the hair which are Ex.P9.
21. Ms. Neerja She is the Ld. MM who has proved having conducted Bhatia the Test Identification Parade proceedings of the case (PW15) property i.e. the locket. She has proved the following documents:
Ex.PW15/A Application filed by the IO
Ex.PW15/B Test Identification Parade proceedings
of the locket.
Ex.PW15/C Application of the IO for obtaining
copy
Ex.PW15/D Application of the IO seeking
permission to obtain the specimen
handwriting of the accused.
Ex.PW15/E Application of the IO seeking the
samples of handwriting and hair of
accused Arind Kumar
Ex.PW15/F Proceedings regarding taking the
handwriting and samples and hair
Ex.PW15/G Application of the IO for obtaining the
copy of the proceedings.
22. Ms. Saroj She is the Principal of MR Viveka Anand Modern
Manni School, Tilak Nagar and has proved the record of fee
(PW18) receipt of Deepak Vedi which was issued on 18.1.2005
bearing no. 32218 which is Ex.PW1/F. According to the witness, on 18.3.2005 on request of the investigating officer Inspector Pratap Singh, she had ordered the Manager of the school to kept the said record in safe custody.
23. HC Ved Pal He is a formal witness being the MHC(M) who has (PW19) proved the various entries made by him the Register No.19 and the copies of the RC which entries are Ex.PW19/A to Ex.PW19/F.
24. ASI Brahm He is a formal witness who has proved that on Prakash 19.3.2005 on the instructions of Investigating Officer (PW20) Inspector Pratap Singh, the MHCM has handed over him one pullanda with the seal of Police Station for obtaining the subsequent opinion along with request State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 81 letter of the investigating officer and the postmortem report No.62/2005. He has proved that Inspector Pratap Singh also came at the mortuary and obtained the subsequent opinion which is Ex.PW17/B.
25. HC Ram He is a formal witness who has proved that on Pratap 20.1.2005 on receipt of DD No.37 he went to DDU (PW21) hospital and handed over the DD No.37 to SI Rajesh who got preserved the dead body of Deepak @ Noni S/o Anil Kumar under his supervision and he got conducted the postmortem of the dead body of Deepak. According to the witness, after postmortem the doctor handed over three pullandas with the seal of LKB, SMO, Civil Hospital, Delhi which were handed over to Inspector Pratap Singh who took them into possession vide memo Ex.PW21/A.
26. HC Jaiveer He is also a formal witness being the photographer (PW22) who has proved the photographs which are Ex.PW22/P1 to P8 and the negative thereof which are Ex.PW22/P9 to P18 .
27. Inspector He is the investigating officer who has proved the Pratap Singh following documents:
(PW23) Ex.PW23/A Rough site plan
Ex.PW23/B Form 25:35
Ex.PW23/C Request for postmortem examination
Ex.PW23/D Brief facts
Ex.PW23/E Receipt of the dead body
Ex.PW23/F Disclosure statement of accused Rajesh
Ex.PW23/G Disclosure statement of accused
Arvind
Ex.PW23/H & Pointing out memos of accused Rajesh PW23/J and Arvind Ex.PW23/K Arrest memo of accused Arvind Ex.PW23/L Arrest memo of accused Rajesh Ex.PW23/K-1 Personal search memo of accused Arvind Ex.PW23/L-1 Personal search memo of accused Rajesh State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 82 Ex.PW23/M Sketch of the plass Ex.PW23/N Seizure memo of plass Ex.PW23/O Seizure memo of the electric wires Ex.PW23/P Seizure memo of the copy/ notebook Ex.PW23/Q Seizure memo of plastic can Ex.PW23/R Sketch of the lodhi pathat Ex.PW23/S Seizure memo of the lodhi pathar Ex.PW23/T Seizure of the locket with thread Ex.PW23/U Site plan Ex.PW23/V Application seeking opinion from the doctor Ex.PW23/W Seizure of the hair sample of the accused Ex.PX FSL Result
28. SI Rajesh He is the initial investigating officer and had also Kumar joined the investigations with Inspector Pratap Singh. (PW27) He has deposed on the following lines that:
1. On 19.01.2005 Sh. Anil Kumar, father of Deepk @ Noni came to police station and gave his statement which is Ex.PW1/A and he made endorsement as Ex.PW27/A and rukka was handed over to Ct. Ram Singh for getting the FIR registered and he got FIR registered and handed over to him the copy of FIR and original rukka.
2. That on the intervening night of 19/20.01.2005 he was on patrolling duty and he received DD No.36 on which he reached gali no.4, Vishnu Garden, Delhi where he found a body of a child aged around ten years which was wrapped in a bed sheet and the bed sheet was tied with the insulated electric wire near H. No. 221/175.
He has also joined the investigations with Inspector Pratap Singh and has corroborated his testimony in toto.
Now coming to the microscopic examination in respect of the evidence against the accused Arvind Kumar.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 83Ocular Evidence:
There is no direct ocular evidence/ eye witness in the present case and the entire case of the prosecution is based upon the last seen, circumstantial and forensic evidence.
Evidence of Last Seen:
The case of the prosecution is that on 18.1.2005 at about 5:00 pm the deceased son of the complainant namely Deepak @ Nonu aged about 10 years, had gone to purchase sugar from the nearby shop but thereafter he did not turn-up from the market and at that time he was wearing a blue colour T-shirt and a blue colour jeans pant and white colour sport shoes. When he did not return till 6:30 pm, Smt. Vandana Bedi (PW2) the wife of the complainant Anil Kumar telephoned to her husband (Anil Kumar) and informed her about the same after which Anil Kumar (PW1) reached home and tried to trace his son in the neighbourhood but he could not be traced out. On 19.1.2005 he had lodged a missing report of his son in the Police Station vide Ex.PW1/A after which the police officials came to their house at about 8:00 pm and made inquiries from his tenants and his wife. The case of the prosecution is that the accused Arvind Kumar was a tenant under the complainant Anil Kumar and at that time all his tenants were present except Arvind Kumar and co-accused Rajesh (expired) and the room under their tenancy was found locked. On 20.1.2005 Anil Kumar received a message from the police officials that his son Deepak had been murdered on which he was called to the DDU Hospital where he State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 84 identified the dead body of his son. Smt. Vandana Bedi (PW2) has deposed before this court that on the date of incident i.e. 18.1.2005 her son Deepak had gone to the market for getting sugar at 5:00 pm and came back within ten minutes without purchasing the sugar. According to her, at the time when her son came back without purchasing the sugar and changed into his white colour shoes and then again left the residence and did not come back.
Trilochan Singh (PW4) who is a resident of the same area has on the same day i.e. 18.1.2005 at about 6:00 pm/ 6:30 pm while he was going to Gurdwara Mandir Road on his two wheeler scooter and when he reached near the shop of Aggarwal Jewellers, N Block, Vishnu Garden saw the child Deepak with accused Arvind Kumar and his co-accused Rajesh (expired). According to Trilochan Singh, he identified the accused Arvind Kumar and Rajesh (expired) as they were the tenants in the house of Anil Kumar. This witness has correctly identified the accused Arvind Kumar in the court and has also stated that he saw the accused Arvind Kumar had put his hand on the shoulder of the deceased Deepak and they were laughing and was going with Deepak and Rajesh was going behind him. This proves that the child Deepak who had left his house at about 5:10 - 5:15 pm after changing into his white shoes was last seen with the accused Arvind and Rajesh (since expired) at about 6:00 pm - 6:30 pm in the same area in a blue shirt. I may mention that Pankaj Kumar (PW11) the next door neighbour of the victim has deposed that the child often used to roam around the area with the accused and hence when Trilochan State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 85 Singh saw the child with the accused Arvind and Rajesh, naturally he did not find anything unusual in the same.
Witness Trilochan Singhhas has also given an explanation as to why there was a delay of one day in informing the police about the above facts. According to Trilochan Singh he had gone to Karnal for his personal work on 19.1.2005 and came back only on the night of 19.1.2005 and on 20.1.2005 in the morning he came to know that Deepak had been murdered and his dead body was recovered in S Block, Gali No.4, Vishnu Garden, Delhi when he gave the information.
This witness Trilochan Singh was cross-examined at length and he has stood his ground. Ld. counsel appearing on behalf of the accused has vehemently argued that the present witness is highly unreliable and has deposed at the instance of the complainant with whom he is on friendly terms. She has argued that PW1 in his statement has admitted that he used to give monetary help to PW4 Trilochan Singh whenever required and PW4 is unable to tell the name of any other tenants except the accused Arvind Kumar showing that he is a planted witness. Ld. counsel has also pointed out that PW4 in his statement is unable to tell the colour of the clothes worn by the accused Arvind but has only given the colour of the clothes worn by the deceased, strengthening the belief that he has deposed at the instance of the complainant Anil Kumar. She has further pointed out that PW4 Trilochan Singh had in his examination stated that he went to DDU Hospital on 20.1.2005 and disclosed this fact of having seen the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 86 child with the accused Arvind Kumar on 18.1.2005 to the police but PW1 Anil Kumar does not reveal the name of PW4 Trilochan Singh as the person who had come to the DDU Hospital.
I have considered the submissions made. I may observe that Anil Kumar (PW1) is the father of the deceased and naturally when he was called to DDU Hospital to identify the dead body of his son, he would have been extremely perturbed having seen the dead body of his own son. No doubt Anil Kumar should have mentioned the name of the witness Trilochan Singh to the police as the person who had come to DDU Hospital being a material aspect but the possibility of his having forgotten or skipped over this fact cannot be ruled out. Even otherwise no specific suggestion has been made to the witness Anil Kumar (PW1) with regard to Trilochan Singh having met him at the hospital. I, therefore find no merit in the objection raised by the Ld. counsel for the accused.
The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
It is settled law that when there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 87 when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. (Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992).
Applying these principles of law to the present case, I hereby hold that the child Deepak (deceased) was last seen alive with the accused Arvind Kumar. The time gap between the time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
Recovery of the dead body:
PW12 Lalit Bahadur has deposed that on 20.1.2003 at about 9:00 pm when he was taking a round of the locality and passed in front of House No. S-221/ 175, Gali No.4, Vishnu Garden nothing was found but while taking the round at about 4:00 am he noticed something lying in front of House No. S-221/175, Gali No.4, Vishnu Garden wrapped in a bed sheet and tied with a wire on which he immediately informed the neighbours who informed the police. According to him, the police came to the spot and on checking it was revealed that the bed sheet contained a dead body of eight/ nine years.
Arrest of the accused:-
The case of the prosecution is that on 21.1.2005 a secret information had been received regarding the apprehension of the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 88 presence of accused Arvind Kumar and Rajesh (since expired) near Park Hospital, Khyala and the accused Arvind was apprehended on the pointing out of the secret information along with the accused Rajesh and on causal search of the accused Arvind Kumar a desti katta was recovered from the left dub of his pant. It has been proved that the said katta was containing two live cartridges and separate proceedings in this regard were initiated against the accused. In so far as the arrest of the accused Arvind Kumar is concerned, the testimony of Inspector Arvind Kumar (PW23) is very categorical which testimony finds due corroboration from the testimonies of SI Rajesh Kumar (PW27) and HC Ved Prakash (PW19).
Recovery of articles after the arrest of the accused Arvind:
The case of the prosecution is that the accused Arvind Kumar was apprehended along with his co-accused Rajesh (expired) on 21.1.2005 near Park Hospital, Khyala Road. After his arrest, the accused Arvind Kumar made a disclosure admitting this involvement in the kidnapping and killing of the child Deepak. He thereafter led the police party to his room from where he got recovered the a cutting plier (Plass) with which he had cut the electric wire and tied the dead body of the deceased child. The sketch of the said cutting plier (Plass) which is Ex.PW23/M and its seizure which is Ex.PW23/N has been duly proved by PW23 Inspector Pratap Singh. He has also proved that the accused Arvind Kumar also got recovered one plastic electric wire which according State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 89 to him was the remaining portion of the wire with which he had tied the dead body of deceased child, which wire was seized vide memo Ex.PW23/O. The accused thereafter got recovered one linedar copy (note book) and disclosed that he had torn one page from the copy and had written a ransom note on the same which copy was thereafter seized vide memo Ex.PW23/P. Inspector Pratap Singh (PW24) has further proved that the accused Arvind Kumar also got recovered one plastic can containing some kerosene oil which can was also seized vide memo Ex.PW23/Q and a lodhi pathar with which he had given blow on the head of deceased Deepak which was taken into possession vide memo Ex.PW23/S. He has also proved having searched the room of the accused Arvind from where he found one artificial locket with black colour thread and the receipt dated 18.1.2005 of MRV School which all were seized vide memo Ex.PW23/T. I may observe that Section 27 of the Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 90Recently, in the case of Bachchi Singh & Anrs. Vs. The State (NCT of Delhi) bearing Criminal Appeal No. 261/1997 decided on 30.7.2010 by the Revision Bench headed by Hon'ble Mr. Justice Badar Durez Ahmed of Delhi High Court wherein the Hon'ble Judges while making reference to the earlier decisions and various judicial pronouncements, briefly culled out the law relating to the statement made by the accused while in police custody and the extent to which it can be relied upon.
In State of U.P. Vs. Deoman Upadhyaya reported in 1960 Cri.L.J. 1504, Supreme Court inter alia, observed as under:-
"When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 91 the "custody" of the police officer within the meaning of S.27 of the Indian Evidence Act."
Applying the settled principles of law to the facts of the present case it is evident that the accused Arvind Kumar was under
the control of police when he made the disclosure statement. The accused Arvind Kumar was in the custody of a police officer at the time he was interrogated. Therefore, the disclosure statement of the accused Arvind Kumar which is Ex.PW23/G, to the extent it relates to the fact that certain articles had been kept by him in his room is admissible in evidence under Section 27 of Evidence Act.
Ld. counsel appearing on behalf of the accused has vehemently argued that the said articles have been planted upon the accused. I have considered the objection so raised by the Ld. Counsel and in this regard, I may observe that the accused Arvind was arrested by the police only on 21.1.2005 whereas the dead body of the child which was tied with the wire and the ransom note were already in possession of the police and had been duly seized on 20.1.2005. The report of the Handwriting Expert and the FSL report both have confirmed that the ransom note was written on the copy got recovery by the accused from his room and that the part of the wire got recovered by the accused was the other part of the same wire with which the body of the child was tied. Further, the locket so recovered from the room of the accused has been duly identified by PW2 Vandana Bedi in the judicial Test Identification Parade which has been duly proved in accordance with law. The State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 92 record reveals that the statement of Smt. Vandana Bedi had been recorded on 19.1.2005 even before the dead body of the child was recovered wherein she had mentioned the details of the clothes worn by the missing child and regarding the same metallic locket put in a black thread which the child was wearing at that time. Therefore, the possibility of the same being planted appears to be remote. Also the fee receipt of the child with regard to the deposit of the fee in the school on 18.1.2005 i.e. on the same day the child went missing, was also recovered from the house of the accused Arvind. It has been proved by Ms. Saroj Manni (PW18) that this receipt Ex.PW1/F had been issued by the school to the child on the same day i.e. 18.1.2005. This being so, where then is the question of the articles been planted upon the accused.
Evidence of the landlord - Shiv Kumar:
PW3 Shiv Kumar has proved before the court that he is the owner/ landlord in respect of the premises bearing no.S- 221/175, Gali No.4, Vishnu Garden, Tilak Nagar where the accused Amit (PO) used to reside. The scaled site plan Ex.PW6/A duly proved by SI Mahesh Kumar, clearly depicts the room which had been taken on rent by the accused Arvind Kumar and Amit Kumar (PO) from Shiv Kumar (PW3) wherein the offence was allegedly committed. Shiv Kumar (PW3) in his testimony deposed that on 1.1.2005 two persons namely Amit (accused PO) and Arvind Kumar (present accused) took a room on rent from him and has correctly identified the accused Arvind Kumar. He has deposed State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 93 that on 18.1.2005 at about 10:30 pm accused Arvind Kumar along with one Rajesh came down from the second floor of the rent room and went outside and on 19.1.2005 at about 10:00 pm accused Arvind and Rajesh came back in the rented room. According to him, he used to close the main gate of his house at about 11:00 pm and opened it at about 6:00 am keys of which he used to keep with him. He has deposed that Amit (PO) was present in the rented room on 19.1.2005 when Rajesh and Arvind arrived in the tenanted room and Amit left the rented room at about 7:00 am on 19.1.2005.
According to Shiv Kumar (PW3) on 20.1.2005 accused Arvind and Rajesh came on the first floor at about 5:30 am and gave a call to him to open the main door as they had to go somewhere and thereafter they left the tenanted room and it was in the morning at about 7:00 am when he opened his shop, he came to know that a dead body of a child was found in the street near his house.
This witness has successfully proved that his house was taken on rent by accused Amit (PO) and accused Arvind Kumar used to come and stay with him and that on 20.1.2005 when the body of the child was recovered in the early morning hours, the accused Arvind along with Rajesh who were present in the house, left the house early morning at about 5:30 am and thereafter never returned. I hereby hold that the prosecution has been able to successfully connect the accused Arvind Kumar with the place of incident and the place from where the dead body of the child was recovered.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 94Evidence of Amrish Kumar - Cable Operator:
It is evident from the record that when the dead body of the deceased was found, it was found tied with a wire and the overhead cable wire was found broken showing that the body had been thrown from a height resulting into snapping of the cable wire. PW14 Amrish Kumar who was running the cable business under the name and style of Sri Narain Cable TV at J-46, Vishnu Garden; has deposed that on 22.12.005 he was called by the police officials at S-221/175 when he noticed that the cable wire and its support wire was broken and thereafter he had opened the cable wire and the support wire which were taken into possession by the police vide seizure memo Ex.PW14/A. According to him, the length of the cable wire and support wire on the one side was fifteen feet and on the other side it was thirty feet. A specific suggestion has been put to the witness that he has deposed at the instance of the father of the deceased child and his counsel which suggestion he has denied. The said witness is unable to produce the payment cards regarding the monthly payment received from the customers since according to him, the same are maintained only for a period of one year and his testimony was recorded in the year 2008 i.e. after three years of the incident which card had never been taken by the police from him not he was asked to preserve the same.
Ld. Counsel appearing on behalf of the accused has vehemently argued that it is impossible under the given circumstances that the cable TV wire would remain broken for six days and nobody would have noticed the same or made a complaint State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 95 about it since it is only natural that the further transmission would stop under the given circumstances. She submits that this raised a doubt with regard to the credibility of the story put forward by the prosecution. I have considered the submissions made. At the very outset, I may observe that the place where the body of the child was found is not a purely residential area. It is evident that the area is both residential and commercial with small factories are running in the area. The tenants residing in the are mainly working in the factories and many of them may not even be having television sets or cable facilities. It is further evident from the site plans Ex.PW6/A and Ex.PW23/A that the cable wire which was broken was coming only to the premises bearing no. S-221/175 (where the incident had taken place) from the gali on one side. This property which has a gali on both the sides and the possibility of the adjoining houses receiving the transmission from the cable line coming from the other gali cannot be ruled out and it is only under these circumstances that the further transmission to the houses ahead of the property in question would not stop. No specific suggestion has been put by the Ld. Defence Counsel to the witness Amrish Kumar (PW14) whether it was the same line transmitting signal to the other houses or a different line from the adjoining gali and the only general suggestion made was with regard to the stoppage of transmission after the breaking of the cable wire.
I find no reason to disbelieve the testimony of the witness Amrish Kumar and it stands proved that when the body of the child was thrown from the top floor it came into contact with State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 96 cable wires which broke/ snapped under the pressure of its weight.
Ransom note and report of the Handwriting Expert:
The case of the prosecution is that after the body of the child wrapped in the bed sheet was found in the gali and the father of the deceased identified the same and conducted the last rites and came home, while he was sitting on the stairs he noticed a piece of paper lying near the electric motor which he lifted and went through the same which was a letter in which Rupees Two lacs were demanded. He immediately narrated the said fact to his brother Jitender Kumar (PW7) on which they informed the police and the investigating officer SI Pratap Singh and other staff reached his house and seized the same vide Ex.PW1/C. The said memo has been duly proved by not only the complainant Anil Kumar (PW1) but also the investigating officer and the testimony of Anil Kumar (PW1) find due corroboration from the testimony of Jitender Kumar (PW7). The contents of the letter/ note were "tumhara beta mere paas hai, mere baap bimar hai. Mujhe 2 lakh rupee chahiye. Agar police to bataya to samjho tumhara beta mar gaya". The said note is Ex.PW1/E. After the arrest of the accused Arvind Kumar on 22.3.2005 his sample handwriting was taken after which the ransom note was sent to FSL on 12.4.2005 and later on the result of which was collected which is Ex.PW26/A. The said report has been duly proved by PW26 Sh. Devak Ram who has opined that the page of ransom note bearing questioned writings marked Q1 match in State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 97 colour, size and location of ruled line with the page of note book marked X bearing the questioned writing Mark Q2 which indicate that the page of ransom note marked Q1 could have been torn from the said note which note book had been got recovered by the accused Arvind Kumar vide seizure memo Ex.PW23/P pursuant to his disclosure statement. He has further opined that the person who had written sample writings S1 and S2, had also written the questioned handwriting.
Ld. counsel appearing on behalf of the accused had vehemently argued that the accused Arvind Kumar had been compelled to write the ransom note and it is natural under these circumstances, that his handwriting would tally and there is no reason for the accused to have killed the child for a meager amount of Rs. Two lacs. She has further argued that it is unbelievable that PW1 found the ransom note he would not have disclosed it to other relatives, not even to his own wife. According to the Ld. counsel, neither Smt. Vandana Bedi (PW2) nor any independent witness have been examined on this aspect despite the fact that there were many tenants residing in the house of the complainant.
I have considered the submissions made and in this regard I may observe that the Handwriting Expert Sh. Devak Ram (PW26) was specifically cross-examined in this regard and he had deposed that it is not possible for an expert to decipher from the handwriting which portion was written voluntarily and freely and which portion is written under duress, threat and hesitantly. I may further observe that the accused had been apprehended after two State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 98 days of the alleged incident and the ransom note Ex.PW1/E had been recovered prior to the apprehension of the accused and was seized vide memo Ex.PW1/C. There is no reason to disbelieve the version given by the complainant Anil Kumar (PW1) as he had no previous history of animosity or reason to falsely implicate the accused. Even otherwise the report of the Handwriting Expert proved that the accused Arvind Kumar was the author of the ransom note.
Forensic Evidence:
Further, the FSL report Ex.PW28/A proves that on physical and microscopic examination it was found that the cut ends on Ex.5A2, 5B2, 5C1, 5C2 and 9A i.e. the pieces of electric wires could have been cut by pliers and the possibility of use of Ex.10 i.e. cutting plier got recovered by the accused Arvind Kumar, cannot be ruled out. It is further proved that the wires got recovered at the instance of the accused were, on examination, found to be similar in respect of colour, texture, physical and microscopic appearance of insulation and colour & diameter of internal wire. It has been specifically opined that the insulation of cut end 5A2 of wire in Ex.5 and insulation of cut end 9A of Ex.9 were physically fitted when placed in proper position and therefore, it is concluded that the wire marked 5A in Ex.5 and wire Ex.9 were part of one wire. It is the said wire which was got recovered by the accused Arvind Kumar from his room. It, therefore, stands established that the wire with which the dead body State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 99 of the child was tied was a part of the same wire, the remaining portion of which was got recovered by the accused Arvind. No explanation is forthcoming from Arvind as to how it came into his possession.
Medical Evidence:
The postmortem report of the deceased has been duly proved by Dr. L.K. Barua (PW17) who has opined that the death has been caused due to asphyxia following smothering. He had also observed that the injuries on the temporal region was possibly caused by the stone recovered from the house of the accused at his instance. He has further proved that the injury no.9 i.e. one small laceration of size .5 X 3 cm on the left temporal occipital area with blood stained scalp hair, was sufficient to cause death in ordinary course of nature though in his opinion the cause of death in the present case was asphyxia. The other injuries on the body of the deceased have been opined by the doctor as possible in case he fell on the right side of his body hitting the surface and not if the person falls flat and hit the ground by his stomach or on his back side. Therefore, it appears that the other injuries were caused due to fall as the body of the child was thrown in the gali behind the house from the second floor where the accused Amit Kumar (PO) was residing.
It therefore, stands established from the postmortem report that the child had died on account of asphyxia followed by smothering and was simultaneously hit by the stone/ lodhi pathar State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 100 on the left temporal/ occipital area which injury was also sufficient to cause death in ordinary course of nature and the death had been caused on the aforesaid count.
Contradictions and discrepancies:
Ld. Amicus Curiae appearing on behalf of the accused has vehemently argued that there are material contradictions in the testimonies of the various witnesses examined by the prosecution benefit of which should be given to the accused. She has also highlighted the various lacunas in the prosecution case and has argued that no chance prints/ finger prints were lifted from the spot of alleged incident. She has further argued that no public witnesses were joined during the investigations when the alleged recovery of plass, electric wires, stone (lodhi pathar), kerosene can etc. were allegedly got recovered by the accused and no belonging of the accused Arvind Kumar was recovered from the said place. She has pointed out that blood could not be detected on any of the cloth worn by the child, stone and bed sheet and even the hair Ex.P-7 and Ex.P-8 i.e. recovered from the child and hair sample of the accused respectively were found to be dissimilar. She has further argued that the locket produced in the court is Oval shaped and not 'D' shaped as claimed by the police witnesses. She has also pointed out that there is a major contradictions in the testimonies of the investigating officers with regard to the position of the dead body which it was discovered. She has argued that according to Inspector Pratap Singh (PW23) the heard of the child was towards State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 101 North side and feet towards South whereas SI Sanjay Kumar (PW26) has deposed in his cross-examination that head of the child was towards South. It is further argued that there is also a discrepancy with regard to the time at which Shiv Kumar (PW3) last saw the accused Arvind leaving the rented room. According to the Ld. Counsel the body of the child was already discovered by Chowkidar Lalit Bahadur by 4:00 - 4:30 am and the fact that the accused left the premises much later points towards their innocence.
I have considered the rival contentions. Before coming to the contradictions and discrepancies as pointed out by the Ld. Amicus Curiae, I briefly discuss the ratio laid down by the various courts on the aspect of inconsistencies and discrepancies found in the testimonies of the witnesses. In the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 102 realistic and genuine approach for administering justice in a criminal trial."
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 103 be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
Applying the settled principles of law to the facts of the present case it is evident that that the identity of the accused Arvind Kumar stands established. He was a tenant in the room of complainant Anil Kumar (PW1) the father of the deceased. It is also evident that he along with his co-accused Amit (since PO) had taken a room on rent on the second floor at House No. S-221/175, Gali No., Vishnu Garden, Khyala, Delhi in front of which the dead body had been recovered. Further, it is evident that the deceased Deepak was residing on the ground floor of House No. WZ-283/0, State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 104 Gali No.3, West Block, Vishnu Garden, Delhi where the accused Arvind Kumar was residing on the first floor on rent. It is also evident that on the date of incident i.e. 18.1.2005 the deceased was last seen with the accused Arvind Kumar and Rajesh (since expired) and thereafter the child was not seen alive and on 20.1.2005 the dead body of the child Deepak was found near the house where the accused Arvind Kumar used to stay with co- accused Amit Kumar (PO). The prosecution has proved that the child had died on account of asphyxia followed by smothering. Further, it is evident that the accused Arvind Kumar gave a stone (lodhi pathar) blow on the head of the child which injury was sufficient to cause death in the ordinary course of nature though the death was caused on account of asphyxia followed by smothering. It is further evident that in order to hide the identity of the child, the accused Arvind Kumar poured kerosene oil on his face but thereafter put the dead body in a bed sheet with the help of wires and threw the dead body in the street adjoining to their house. The prosecution has also proved that after the arrest, the accused Arvind Kumar got recovered the plass with which he had cut the wires, the remaining portion of the wire, the lodhi pathar with which he had hit the deceased and the plastic can containing kerosene oil.
There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 105 the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
Further, as regards the contradictions in the timings with regard to the leaving of the rented room by the accused, position/ direction in which the dead body of the child was found, presence of a particular police official at a particular time, the number of floors of the house of the accused etc., I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the prosecution witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted in the present case. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation including going of the police officials to the house of the accused, etc. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation. It may be observed that the above discrepancies are too minor to be even taken into consideration. All the discrepancies in the timings as pointed out by the counsel for the accused are too immaterial and can be ignored attributing the same to the lapse of time as the material facts have been substantially proved by the prosecution.
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 106FINAL FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 107
Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused Arvind Kumar stands established. He was a tenant in the room of complainant Anil Kumar (PW1) the father of the deceased. It also stands established that he along with his co-accused Amit (since PO) had taken a room on rent on the second floor at House No. S- 221/175, Gali No., Vishnu Garden, Khyala, Delhi in front of which the dead body had been recovered. Further, it stand established that the deceased Deepak was residing on the ground floor of House No. WZ-283/0, Gali No.3, West Block, Vishnu Garden, Delhi where the accused Arvind Kumar was residing on the first floor on rent. It also stand established that on the date of incident i.e. 18.1.2005 the deceased was last seen with the accused Arvind Kumar and Rajesh (since expired) and thereafter the child was not seen alive and on 20.1.2005 the dead body of the child Deepak was found near the house where the accused Arvind Kumar used to stay with co-accused Amit Kumar (PO). Further, it stands established that the child had died on account of asphyxia followed by smothering. It also stand established that the accused Arvind Kumar in furtherance of common intention caused the death of the child Deepak @ Noni by asphyxia followed by smothering while the child was also hit by Lodhi Pathar on the left temporal occipital region thereby causing injury which was sufficient to cause death in the ordinary course of nature. It is further established that the accused Arvind Kumar had put the dead body in a bed sheet and tied the same with the electric wires and threw the dead body in the State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 108 street adjoining their house. It further stands established that the ransom note Ex.PW1/E demanding a sum of Rs. 2 lacs for releasing the child had been written by the accused Arvind Kumar. It is further established that after the arrest, the accused Arvind Kumar got recovered the plass with which he had cut the wires, the remaining portion of the wire, the lodhi pathar with which he had hit the deceased and the plastic can containing kerosene oil and the notebook from which the paper was torn on which the ransom note was written.
The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, FSL report and the report of the Handwriting Expert etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
It also stands conclusively proved that the accused Arvind Kumar in furtherance of common intention had abducted/ kidnapped the minor boy aged about ten years namely Deepak for a ransom of Rs. 2 lacs. The prosecution has also successfully proved State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 109 that the accused Arvind Kumar in furtherance of common intention had caused the death of the child Deepak @ Noni by asphyxia followed by smothering while the child was also hit by Lodhi Pathar on the left temporal occipital region thereby causing injury which was sufficient to cause death in the ordinary course of nature and hence, committed the murder of Deepak @ Noni. committed the murder of Deepak @ Noni. Therefore, in view of my aforesaid discussion, I hereby hold the accused Arvind Kumar guilty of the offence under Section 363 read with 364A and Section 302 Indian Penal Code and is accordingly convicted.
Case be listed for arguments on the point of sentence on 21.4.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 13.4.2011 ASJ-II(NW)/ ROHINI State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 110 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST): ROHINI: DELHI Session Case No. 1078/09 Unique Case ID No.: 02404R1286942005 State Vs. (1) Arvind Kumar S/o Late Anandi Mandal R/o V&PO Locha Patam, Police Station Ram Nagar, District Munger, Bihar (Convicted) (2) Rajesh Kumar S/o Visheshwar Paswan R/o VPO & PS Kiraya Perrai, District Nalanda, Bihar (Expired) (3) Amit Kumar S/o Late Anandi Mandal R/o V&PO Locha Patam, Police Station Ram Nagar, District Munger, Bihar (Proclaimed Offender) FIR No.: 36/2005 Police Station: Tilak Nagar Under Sections: 363/302/364-A IPC Date of Conviction: 13.4.2011 Arguments heard on: 21.4.2011 Date of Sentence: 30.4.2011 State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 111 APPEARANCE: Present: Sh. Taufiq Ahmed, Additional Public Prosecutor for the State.
Convict in judicial custody with Ms. Anu Narula Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide my separate detailed judgment dated 13.4.2011 the accused Arvind Kumar has been held guilty of the offence under Section 302 and Section 363 read with Section 364-A Indian Penal Code and accordingly convicted.
The complainant Anil Kumar was running a factory in his premises bearing no. WZ-283/04, Gali No.3, West Block, Vishnu Garden, New Delhi on the ground floor whereas he was residing on the second floor along with his family and he had let out the rooms on the first and third floor of the building. The accused Arvind Kumar was residing as a tenant in the premises of the complainant along with the co-accused Rajesh (since expired). Both the accused Arvind Kumar and Rajesh (expired) were on friendly terms with the son of the complainant namely Deepak. As per the allegations on 18.1.2005 the accused Arvind Kumar and Rajesh kidnapped the son of the complainant namely Deepak aged about 10 years for ransom. After kidnapping the child Deepak, both the accused kept him at the residence of their friend Amit Kumar at S-221/175, Gali No.4, Vishnu Garden, Khayala, Delhi where they committed the murder of Deepak by hitting a lodhi State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 112 pathar on his head after tying a handkerchief on his nose and mouth. After committing the murder of Deepak, they wrapped the dead body of the child in a bed sheet and tied it with the help of electric wires after which they threw the same from the roof the house. Initially a missing report was lodged on 19.1.2005 but after the dead body of the child was found on 20.1.2005 the present FIR was got registered.
After completing the last rites of his deceased son when the complainant Anil Kumar returned home and was sitting on the staircase, he found a ransom note lying near the electric motor wherein a demand of Rs.2 lacs was made by the accused Arvind Kumar. The accused Arvind Kumar was thereafter apprehended along with his co-accused Rajesh and pursuant to his disclosure statement the accused Arvind Kumar got recovered the lodhi pathar, electric wires, kerosene oil, plas etc. from the rented room of his co-accused Amit Kumar (Proclaimed Offender). On the basis of the testimonies of the various prosecution witnesses including the complainant Anil Kumar; the owner of the house where the offence of murder was committed; the last seen evidence; medical and forensic evidence, this court has held the accused Arvind Kumar guilty of the offence under Section 363/364-A/302 Indian Penal Code and accordingly convicted.
I have heard the arguments on the point of sentence. Ld. Amicus Curiae appearing on behalf of the convict submits that the convict Arvind Kumar is a young boy of 25 years having a family comprising of two brothers and sisters. His parents have already State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 113 expired. Before his arrest he was working in a placement office. Ld. Amicus Curiae has argued that the convict is a first time offender and is not involved in any other criminal case. According to her, at the time of commission of offence the convict was hardly 19 years of age.
On the other hand, the Ld. Additional Public Prosecutor has prayed for maximum punishment. He has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Arvind Kumar. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 114 jurists have tried to provide certain rules to this moral arithmetic.
(i) The punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.
ii) The more deficient in certainty a punishment is, the severer it should be.
iii) The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it, and
iv) Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.
However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes. The courts are required to draw a State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 115 virtual balance sheet listing the mitigating and the aggravating circumstances against each other and then forming an opinion as to where does the fulcrum rest. The various aggravating circumstances are to be considered in the light of the mitigating circumstances which also includes in itself the aspect of young age of the convict and his conduct during the course of trial.
Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Arvind Kumar is a young boy of 25 years and at the time of commission of offence he was hardly aged 19 years. The aggravating factors are that the murder of the child Deepak was committed in cold blood and in a planned manner for ransom. There was no animosity between the convict and the deceased child and the offence was committed for pure monetary gain.
After having considered the submissions made before me and the various aggravating and mitigating factors, I am of a view that as against the convict Arvind Kumar the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. I therefore, award the following sentences to the convict Arvind Kumar:
1. The convict Arvind Kumar is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.5,000/- (Rs.
Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 116 month.
2. Further, he is sentenced to Rigorous Imprisonment for a period of ten (10) years and fine of Rs.5,000/- (Rs. Five Thousand) for the offence under Section 363 read with 364- A Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
Both the sentences shall run concurrently. The convict is already in judicial custody. He is sent to custody for serving the remaining sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with their jail warrants.
File be consigned to Record Room to be taken up on arrest of the accused Amit Kumar who is a Proclaimed Offender.
Announced in the open court (Dr. KAMINI LAU)
Dated: 30.4.2011 ASJ-II(NW)/ ROHINI
State Vs. Arvind Kumar Etc., FIR No.36/05, PS Tilak Nagar Page No. 117