Delhi District Court
State Of U.P vs Sukhdev Yadav @ Pehlwan on 12 July, 2011
1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE, NEW DELHI
S.C. No. 76/08
State of U.P Vs Sukhdev Yadav @ Pehlwan
FIR No.192/02
U/s 364/302/201 IPC
P.S Kavi Nagar.
ORDER ON SENTENCE
1.Both sides have been heard on the point of sentence. Accused Sukhdeve Yadav @ Pehlwan has been convicted U/s 364/302 & 201 IPC read with Section 34 IPC. Other two coaccused already convicted in this case namely Vikas and Vishal Yadav had been awarded a sentence of life imprisonment. Ld Special P.P Mr.Joon argued for extreme penalty of capital punishment for the present accused and for that arguments and submission Ld Prosecutor tried to impress upon this court that case of the present accused could be considered distinguishable from other two accused whereby the present accused ought not to claim a parity. It is submitted that present accused would be said to be a hired killer who committed murder of the deceased victim for money or reward. Prosecutor tried to justify this point by the fact that present accused was employed in S.C. No. 76/08 1 of 7 2 a liquor shop business of other two accused persons. It is further argued that present case could be treated to be an ''Honour killing'' and taking support from Supreme Court judgment in Bhagwan Dass Vs State 2011 III AD (SC) 157 the concluding paragraph in the judgment has been referred to as a support to submissions for extreme death sentence where the Hon'ble Supreme Court has held that there was nothing 'Honorable' in 'Honour' killing and it were nothing but barbaric and brutal murder by bigoted, persons with feudal minds. It has been further held that 'honour' killing for whatever reasons comes within the category of rarest of rare cases deserving death punishment. Ld Prosecutor argued that present case is covered by the above stated Supreme Court judgment and accused persons in the present case committed murder which could be described as 'honour' killing and thus even extreme punishment of death sentence ought to be awarded He further referred to Bachan Singh and Machhi Singh's judgment on the point that when murder committed was extremely brutal, grotesque, diabolical, revolting or committed in a dastardly manner which aroused intense and extreme indignation of the community.
Or where murder was committed for a motive which evinced total depravity and meanness e.g murder by hired assassins for S.C. No. 76/08 2 of 7 3 money or reward or cold blooded murder for gains of a person. Ld prosecutor further referred to the conduct of accused in absconding for three years after commission of this crime which could be considered as aggravating factor to weigh for enhanced punishment.
2. Ld counsel Mr. Dey assisting Ld Prosecutor, appearing for defecto complainant Ms.Neelam Katara, also argued for death penalty for the present accused and ld counsel submitted that when doctrine of proportionality was applied and examined the offence of murder in the present case fell in the category of rarest of rare case when victim deceased was first abducted and then murdered and thereafter body of the victim was put on flames and that reflected depravity of the mind of the culprits. Ld counsel referred to Supreme Court Judgment in Dhananjay Chatterjee's case and referred to para 15 of the judgment which holds as below;
''In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of S.C. No. 76/08 3 of 7 4 appropriate punishment.''
3. Accordingly it has been argued and pressed for prosecution side that offence of murder in the present case called for death penalty because of peculiar facts and circumstances referred to above.
4. Ld counsel Sh. Sushil Bajaj for accused relied upon Bachi Singh's judgment 1983 S.C Cases 681 and ld counsel argued that the offence held proved against accused did not bring case in a category of rarest of rare and there was no aggravating circumstance to call for extreme death penalty. I have given my consideration to all these contentions and arguments.
Bachhi Singh's judgment it has been held, The following questions may be asked and answered as a test to determine the 'rarest of rare' case in which death sentence can be inflicted:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
The following guidelines which emerge from Bachan Singh case will have to be applied to the facts of each individual case where the question of imposition of death sentence arise:
S.C. No. 76/08 4 of 7 5
(i)The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii)Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii)Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balancesheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravting and the mitigating circumstances before the option is exercised.
Bachan Singh V. State of Punjab, (1980) 2 SCC 684.
5. Question for consideration and determination is whether offence of accused fell in a category of rarest of rare I could not find myself aggreable to contentions from the prosecution side. A case of 'honour' killing as it appears from the judgments where such a crime was found to have been committed involved the victim of the crime a near and dear to the culprit himself and murder of such a victim S.C. No. 76/08 5 of 7 6 came to be committed only as a illconceived notion of saving the 'honour' of the family. In Bhagwan Dass case accused appellant was none else but father of his victim deceased daughter and the motive behind killing was a belief of appellant that his daughter was living in a incestuous relationship with her near relation. In the present case accused have been attributed a motive that victim deceased dare to develop and proceed in love affairs with the sister of accused Vikas Yadas. Such a situation may not describe the case as a murder committed as '' honour'' killing.
6. Ld defence counsel rightly argued that the offence could not be described as extremely brutal, grotesque, diabolical, revolting. Ld counsel pointed out that prosecution case itself from the postmortem report is that a single blow by hard object given in the vital body part of the deceased i.e head resulted in death of the victim and burns found on the body were postmortem. Putting body on the fire was with an intention to abolish incriminating evidence and for that act accused have already been convicted U/s 201 IPC. Accordingly the case may not be described as exceptional where offence was committed with brutality.
7. Case of the appellant cannot be taken to fall in a category where murder was committed with a motive which evinced total S.C. No. 76/08 6 of 7 7 depravity and meanness e.g murder by hired assassin for money or reward merely that accused was stated to be in the employment in the liquor shop business of other two accused family.
8. The case of the appellant cannot be said to fall in a category of rarest of rare case. Accordingly I award a sentence of life imprisonment and a fine of Rs.10,000/ with default sentence of 2 years R.I U/s 302 IPC. I further award sentence of 7 years R.I and a fine of Rs.5,000/ with default sentence of six months R.I U/s 364 IPC. I further award a sentence of 3 years R.I and a fine of Rs.5,000/ with default sentence of six months R.I U/s 201 IPC upon accused. Substantive sentences may run concurrently.
Announced in the Open (J.R.ARYAN) court on 12/07/2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
S.C. No. 76/08 7 of 7 8 IN THE COURT OF SH. J. R. ARYAN, ADDITIONAL SESSIONS JUDGE, NEW DELHI Date of Institution : 14.10.2005 Date of judgment reserved on : 03.06.2011 Date of decision : 06.07.2011 S.C. No. 76/08 IN THE MATTER OF : State of U.P Vs Sukhdev Yadav @ Pehlwan FIR No.192/02 U/s 364/302/201 IPC P.S Kavi Nagar. Sukhdev Yadav @ Pehlwan S/o Sh.Vishawnath Yadav R/o Tarnbagla, Kumeha, P.S. Patherwa, Dist. Kusi Nagar Uttar Pradesh.
1. Accused Sukhdev Yadav @ Pehlwan has been tried on a charge for offences U/s 364, 302, 201 read with Section 34 IPC. The charge is that accused Sukhdev Yadav along with his coaccused Vikas Yadav and Vishal Yadav pursuant to a common intention abducted Nitish Katara from Diamond Palace, Shastri Nagar within the jurisdiction of police station Kavi Nagar, Ghaziabad, U.P on the S.C. No. 76/08 8 of 7 9 th th intervening night 16 /17 February 2002 with an intention to commit his murder. Accused persons then pursuant to their common intention after having abducted victim Nitish Katara committed his murder at around the place near Kurja, Bhulandshahar, UP. All accused persons pursuant to their common intention then in order to destroy/disappearance of evidence against them with an intention of screening themselves, they removed all signs of identification including clothes of the body of the victim and put the body on fire. Accordingly accused persons committed offences U/s 364/302 & 201/34 IPC.
2. The prosecution case is that deceased victim Nitish Katara and other prosecution witnesses namely Bharti Yadav (PW38), Bharat Diwakar (witness given up by the prosecution in the present trial vide statement of the Special Public Prosecutor dated 6/7/2007 but then examined as PW25 in a trial earlier held against accused Vikas Yadav and Vishal Yadav), Gaurav Gupta ( witness given up by prosecution vide statement dated 10/7/2007 but examined as PW26 in a trial held against accused Vikas Yadav and Vishal Yadav), Shivani Gaur (PW7) were batchmates at Institute of Management and Technology, Ghaziabad during the year 19992000 and were close friends. It is further case of prosecution that deceased Nitish S.C. No. 76/08 9 of 7 10 Katara and Bharti Yadav became close friends and their friendship rather developed into a love affair . Bharti Yadav is the real sister of accused Vikas Yadav and cousin sister of accused Vishal Yadav . It is further case of the prosecution that the friendship to an extent of love affair between Bharti Yadav and deceased Nitish Katara was to the disliking of the family members of Bharti Yadav. The incident of the present case is the occasion of the wedding of Shivani Gaur and this wedding of Shivani Gaur nee Shivani Arora (PW7) with Amit th th Arora (PW6) took place on intervening night of 16 /17 February 2002 at Diamond Banquent Hall Ghaziabad. There was a little controversy and rather no dispute in the fact that deceased Nitish Katara attended this wedding on that wedding site. According to prosecution case accused Vikas Yadav and Vishal Yadav along with present accused Sukhdev Yadav @ Pehlwan abducted Nitish Katara from that wedding spot and they committed murder of the deceased and then put his body on fire.
3. An unidentified body which later on came to be identified as body of deceased Nitish Katara was noticed by a PW Virender Singh on 17/2/2002 at around 9.30 a.m near Sikarpur Railway Crossing Kurja, Bulandshehar, U.P. The dead body was seized by the local police and was got subjected to postmortem on 18/2/2002. This S.C. No. 76/08 10 of 7 11 autopsy on the body of the victim was conducted by Dr.Anil Singhal (PW18 in the present case whose testimony earlier recorded as PW 3 in the trial held against Vikas Yadav and Vishal Yadav was adopted and accepted as such by both sides). As per that postmortem report Ex.PW3/1 cause of death was opined as coma as a result of antemortem head injury and burns on the body were reported as postmortem. On 21/2/2002 the body was identified by Smt.Neelam Katara (PW10 mother of the deceased as well by Nitin Katara PW9 the brother of the deceased.) The identity of the deceased was further got ascertained and confirmed through DNA and finger print testing and witnesses on that point were Dr.Sanjeev Lalwani, Assistant Professor AIIMS, New Delhi PW15, PW16 ASI Chet Ram, Finger Print Expert, Finger Print Bureaue Malviya Nagar, Delhi, Dr.T.D.Dogra, AIIMS Delhi PW17 (Statement of these three witnesses respectively as PW10, PW2 & PW8 as recorded during earlier trial against Vikas Yadav and Vishal Yadav was accepted by both sides in the present case). In fact ld defence counsel did not raise the issue of homicidal death of victim Nitish Katara and his identity established through above stated prosecution witnesses.
4. According to prosecution case prosecution witness Bharat Diwakar then residing in Bhopal came to attend the wedding of S.C. No. 76/08 11 of 7 12 Shivani Gaur and reached the residents of deceased Nitish Katara at 7 Chemsford Road, New Delhi. In fact Bharat Diwakar and Nitish Katara attended a prewedding ceremony held on 15/2/2002 also which was held at Shivani Gaur's place at Ghaziabad, the ceremony/function called lady sangeet. On 16/2/2002, according to prosecution case deceased Nitish Katara and Bharat Diwakar left for the wedding site from Nitish Katara's residence Chemsford Road, Delhi at around 9.30 p.m and they reached the wedding site. Deceased Nitish Katara was abducted from that wedding site ''Diamond Palace'' at around 11/11/30 p.m. Bharat Diwakar finding Nitish Katara not present in the wedding site finally left the site alone and reached residence of Nitish Katara at Chems Ford Road, Delhi at late past midnight. Smt.Neelam Katara mother of deceased got worried for her son not reaching home and found herself unable to contact deceased on his mobile as it was being responded switched off, she having contacted Bharti Yadav to find out any clue regarding whereabouts of Nitish Katara finally sensed a foul play and along with Bharat Diwakar she reached police station Kavi Nagar on 17/2/2002 and lodged a report and the FIR of the present case U/s 364/34 IPC came to be registered and the police came in to action with investigation taken up by Inspector Anil Samania (PW22) S.C. No. 76/08 12 of 7 13 (examined as PW35 in the trial against Vikas Yadav and Vishal Yadav)
5. According to prosecution case accused Vikas Yadav and Vishal Yadav were found absent from their residence and absconding. Investigating officer obtained arrest warrants against them and rather got proceedings U/s 82/83 Cr P.C initiated. Both those accused namely Vikas Yadav and Vishal Yadav were apprehended on 23/2/2002 by Dabra M.P. Police. They were got produced before the court of CJM Ghaziabad through transit remand on 25/2/2002. Their interrogation led to those two accused having volunteered a confession/disclosure. In that confession they were alleged to have named present accused Sukhdev @ Pehlwan as their accomplice (but only by mentioning this accused as Pehlwan). Recoveries pursuant to the disclosure given by those two accused were effected which comprised the weapon of offence a hammer, wrist watch which deceased had on his person at the time of incident. (all these aspects concerning accused Vikas Yadav and Vishal have been discussed and analysed in the judgment dated 28/5/2008 whereby both of them were held guilty and convicted U/s 364/302 & 201/34 IPC).
6. After the arrest of accused Vikas Yadav and Vishal Yadav and S.C. No. 76/08 13 of 7 14 after the name of the present accused as Pehlwan having figured in the confessions given by those two accused and the prosecution witness Bharti Yadav examined during investigation also having spoken presence of Sukhdev Yadav @ Pehlwan at the wedding site that the investigating officer took up the search for accused Sukhdev Yadav but then accused was found absconding and was got declared a proclaimed offender in the month of March 2002. As a consequence of execution of proclamation, some of movable assets of accused available in his native place in District Kushi Nagar, U.P in village Tarnuwa were also attached. A fire arm gun licence of accused was also got cancelled but still accused remained absconding till after about three years i.e on 23/5/2005 that accused was apprehended by the police officials from police station Pateherawa District Kushi Nagar, U.P wherein accused happened to indulge in a firing on the police and tried to escape but he was arrested and a criminal case U/s 307 IPC and under Arms Act was got registered as FIR 56/05 in that place. When interrogated by that police, accused was alleged to have confessed his involvement in the present murder case. Accused was accordingly arrested in the present case and he confessed his involvement in the murder of deceased Nitish Katara along with other coaccused Vikas Yadav S.C. No. 76/08 14 of 7 15 and Vishal Yadav. Earlier the investigating officer claimed to have recorded statement of certain prosecution witnesses who had seen deceased Nitish Katara in the company of accused persons and that circumstance is being pressed as deceased last seen alive in the company of accused persons and then the dead body of the deceased was recovered. Witnesses on this circumstance of last seen were Bharti Yadav, Ct.Satinder Pal Singh PW10, Ct.Inderjit PW12. These two constables claimed that while posted in police station Kavi Nagar on 16/2/2002 they were on duty on a control room vehicle No.Chetak 13 and they had parked their vehicle at T point near Diamond Palace Banquet Hall in order to keep a watch and check the vehicles going out of the Diamond Palace. According to prosecution case during vehicle checking these witnesses saw deceased Nitish Katara in the company of accused persons in a vehicle Tata Safari at around 1212.30 midnight. Another witness on the circumstance of last seen was Ajay Kumar Katara PW14 who claimed to have seen deceased Nitish Katara in the company of accused persons in Tata Safari vehicle on intervening night 16/17.2.2002 at around 12.30 a.m near Hapur Chungi and thereafter in the next day morning dead body of the deceased Nitish Katara was spotted within that area of Hapur Chungi/Raj Nagar. Another S.C. No. 76/08 15 of 7 16 incriminating circumstance prosecution pressed against this accused in the trial was that a call had been made on the mobile phone of deceased at 1.11 a.m by Bharat Diwakar and the cellular ID of deceased mobile showed presence of mobile in Raj Nagar on that point of time the spot where finally the dead body of the deceased was found was within that Raj Nagar area.
7. When present accused Sukhdev Yadav @ Pehlwan was found absconding other two accused Vikas Yadav and Vishal Yadav were charge sheeted and put on trial and by the time present accused Sukhdev Yadav was arrested in this case in May 2005, the trial of the present accused was segregated from the trial of other coaccused. Accused Vikas Yadav and Vishal Yadav stand convicted of charges against them.
8. Prosecution case rests on circumstantial evidence. Incriminating circumstances pressed in this trial against accused Sukhdev are,
(i) The motive sought to be pressed against present accused is that Vikas Yadav and Vishal Yadav had a strong motive to eliminate deceased Nitish Katara because of their disliking of his love affairs with sister of Vikas Yadav and accused Sukhdev Yadav associated himself with Vikas Yadav and Vishal Yadav in that S.C. No. 76/08 16 of 7 17 motive as he was employed and working in the liquor shop being run as a family business of accused persons.
(ii)Deceased Nitish Katara seen in the company of accused persons and they were last seen together in late hours in the night of the incident and soon thereafter dead body of Nitish Katara was discovered.
(iii)Conduct of present accused when found absconding after the incident.
9. It has been argued from prosecution side that with the conviction of Vikas and Vishal in this crime the incriminating circumstance of motive stood duly established which should be taken into account once the incriminating circumstance of last seen is found established against present accused. It is argued that there is a reliable and acceptable evidence on the circumstance of last seen whereby the presence of deceased Nitish Katara in the company of accused persons including accused Sukhdev can be found to have been duly proved and established then present accused Sukhdev Yadav could be taken to have associated himself with coaccused Vikas Yadav and Vishal Yadav in that motive also.
10. It has been further argued from prosecution side that conviction of accused Vikas Yadav and Vishal Yadav in this case is itself a S.C. No. 76/08 17 of 7 18 strong circumstance to hold this accused Sukhdev Yadav was also involved in the commission of this offence whose name had figured at the earliest. Ld Special Public Prosecutor Mr.B.S.Joon submitted in his arguments that,
1. Accused Sukhdev Yadav @ Pehlwan was working in liquor shop in Bulandshehar, U.P which belonged to D.P.Yadav, father of accused Vikas Yadav and accused admitted this fact in his 313 Cr.P.C statement, the fact would support the prosecution case that accused Sukhdev Yadav associated himself in the motive with other two accused.
2. Accused Sukhdev Yadav was seen near around Diamond Palace the wedding site and the fact has been deposed by two constables who were in duty nearby that wedding site.
3. Accused Sukhdev with coaccused persons was again seen along with victim deceased Nitish Katara near Hapur chungi, Ghaziabad at around 12.15 - 12.30 midnight by PW14 Ajay Katara when they all were seen travelling in a vehicle Tata Safari on the intervening night of the incident.
4. Accused Sukhdev absconded after the incident of this case and he did not have any explanation for his conduct of abscondance. His fire Arm licence for double barrel gun was got cancelled and he did S.C. No. 76/08 18 of 7 19 not surrender the fire arm and kept evading the police. While in abscondence his movable assets in his native village were got attached and it supported the prosecution case that conduct of accused in absconding was well within his notice and knowledge and this conduct of accused in light of the above incriminating circumstances was to be considered as a link in a chain of incriminating circumstances.
5. It is further argued that accused took a false plea in his 313 Cr P.C statement and such a false plea could be treated as additional link in the chain incriminating circumstances.
6. Lastly Ld Spl. PP argued and submitted that other two accused had been convicted on the same set of evidence and there was no reason or ground to differ with the findings recorded in the earlier judgment.
11. Counsel Mr.Kaushik Dey representing the defacto complainant Smt.Neelam Katara placed on record his written submissions / arguments. It has been submitted and argued that motive in this crime stands conclusively proved. The incriminating circumstance of deceased last seen in the company of accused persons has also been duly proved and established. It is further argued that there was some delay in recording 161 Cr.P.C statement of witness Ajay Katara S.C. No. 76/08 19 of 7 20 but then delay has been duly explained by the witness himself and ld counsel relied upon judgment reported as 2003 (12) SCC 679 which is a proposition that there was no set rule of a natural reaction by a person. Every person would react in his own way and in what way witness should react could not be predicted. It was argued that PW 14 had seen deceased in the company of accused persons on the intervening night of the incident of this case and having come to know from media reports that Nitish Katara whom the witness had seen in the company of accused persons had been murdered, witness if thought of reporting the fact to the police with some delay then his evidence was not to be disbelieved merely for the reason that he reacted in a particular manner. It has been argued that where deceased was in the company of accused persons and next day morning his dead body was spotted near around the place where deceased was seen in the company of accused then onus shifted upon accused persons to explain as to when and where they parted company with the deceased and in absence of the onus discharged, a conclusive inference of deceased murdered by accused persons could be drawn. Ld counsel relied upon Supreme Court judgments on this point reported as 2002 (8) Supreme 1, 2006 (X) SCALE 369 and 2006 (XII) SCC 254. It has been further argued that the plea of S.C. No. 76/08 20 of 7 21 alibi was pleaded as defence by accused in his 313 Cr P.C statement but if he failed to substantiate, an adverse inference was to be drawn and in support of this argument ld counsel relied upon 1981 (2) SCC 166, JT 1991 (2) SC 190, 1997 (4) SCC 496, 2003 (1) SCC 259 & 2002 (7) SCC 157 and 2004 (X) SCC 786.
12. It has been argued that evidence of the police officials could not be discarded and disbelieved particularly in the absence of any material to suggests that evidence was targeted to falsely implicate accused persons (2007 (1) AD (DHC) 534) . On a proposition of law that if there was some defective investigation the prosecution case was not necessarily to result in an acquittal, it is argued that defective investigation required an extra cautious approach by the court for evaluating the evidence (2003 (2) JCC 960, 2003 Crl.L.J
844).
13. Ld defence counsel Mr.Sushil Bajaj besides oral arguments and submissions also filed his written arguments. These arguments of ld defence counsel will be referred to when the prosecution evidence in this case is taken up for its examination and analysis.
14. In all 23 prosecution witnesses have been examined. In fact witness Bharti Yadav appeared as a prosecution witness and was examined when other two accused namely Vikas and Vishal Yadav S.C. No. 76/08 21 of 7 22 were being tried in this case also though their trial stood segregated from the trial of the present accused. Examination of Bharti Yadav was taken up on 19/11/2006 and it was recorded when present accused Sukhdev was also present in this case with his advocate Sh.Sushil Bajaj and evidence of Bharti Yadav continued and was concluded on 30/11/2006. Certified copy of that statement of Bharti Yadav is part of the judicial file record in this case. Original statement of Bharti Yadav forms part of the judicial file record against Vikas Yadav and Vishal Yadav. Bharti Yadav was the only common witness examined against all three accused whereas rest of other evidence has been examined separately against this accused Sukhdev Yadav. A brief account of the evidence in this trial is as below: PW1 is a witness Yashoman Tomar and his evidence is restricted to the fact that he being friend of Gaurav Gupta and through Gaurav Gupta he had met Nitish Katara, Bharat Diwakar while they all were pursuing their MBA at IMT Ghaziabad. witness deposed that on 15/2/2002 Gaurav Gupta called upon this witness from Faizabad that he was to attend a wedding on 16/2/2002 at Ghaziabad and requested this witness to pick him up from New Delhi Railway Station and to drop him to Ghaziabad. Accordingly, witness S.C. No. 76/08 22 of 7 23 deposed, he picked up Gaurav Gupta from New Delhi Railway Station at 10 p.m on 16/2/2002 and took him to Ghaziabad and dropped him at Diamond Palace the wedding site. Gaurav Gupta then took the car of this witness. Witness further deposed that he was holding a mobile phone 9811220691 at that time and that phone was used by Gaurav Gupta soon he reached Delhi to call the mobile phone of Nitish Katara.
15. Witness further deposed that on that night of 16/2/2002 while witness was at IMT Ghaziabad, at around 12.30 midnight he gave a call on the mobile phone of Bharat Diwakar to convey a message to Gaurav Gupta that they were getting late as the witness was to go back to his home Bharat Diwakar was at Diamond Palace at that time and replied to this witness that he would be asking Gaurav Gupta to go back. Witness then went to the marriage site and there again he gave a call on the phone of Bharat Diwakar and Gaurav Gupta then came out and they drove to Noida.
16. Witness further deposed that on 17/2/2002 he received a phone call from Bharat Diwakar who wanted to speak to Gaurav Gupta but then Gaurav was in sleep and witness asked for any message from Bharat Diwakar. Bharat Diwakar told witness that Nitish Katara was missing and accordingly the witness got Gaurav S.C. No. 76/08 23 of 7 24 Gupta woke up and got him on the line and Gaurav and Diwakar had a talk. Thereafter this witness along with Gaurav went to the house of Nitish Katara in the evening and till that time, witness deposed, family of Nitish Katara had no information about whereabouts of Nitish Katara. Gaurav Gupta then went back to his place of work on next day and the witness dropped Gaurav Gupta at New Delhi Railway Station.
17. Counsel for accused Sukhdev did not cross examine this witness. Accordingly testimony of this witness brought on record the fact.
1. Gaurav Gupta attended the wedding at Diamond Palace on 16/2/2002 where he reached by around 10.30 p.m and came out of that wedding site at around 12.30 midnight.
2. In the next morning on 17/2/2002 a call was received that Nitish Katara was found missing.
18. PW2 is the owner of the wedding site Diamond Palace and he deposed the fact that banquet hall was booked for marriage of Shivani Gaur on 16/2/2002 and the wedding was attended by around 500/600 guests. Witness admits in cross examination that the wedding site comprised a hall and an open lawn.
PW3 is a police official who recorded the FIR of this case. On
S.C. No. 76/08 24 of 7
25
17/2/2002 at around 11.15 a.m, witness deposed, Neelam Katara came to the police station and gave a written complaint and on the basis of that complaint he recorded FIR No.83/02 for offence U/s 364 IPC. Witness proved that complaint as Ex.PW1/1 and an endorsement Ex.PW1/A made by this witness on that complaint with his signatures and he also proved FIR as Ex.PW1/2. D.D No.12 was recorded regarding this FIR and he proved its copy as Ex.PW1/3. There is no cross examination on the witness and accordingly the fact stood proved that FIR was registered at 11.15 a.m on 17/2/2002.
19. PW4 & 5 are the witnesses concerned with videography and photographs recorded during the wedding ceremony. Witnesses were basically concerned with accused Vikas Yadav and Vishal Yadav as these two accused were appearing in videography and photographs which proved their presence in the banquet hall during this wedding . In fact it was an admitted case of those two accused persons that they did attend that marriage but their defence in their trial was that in fact they had left that Banquet Hall much prior to the alleged time of abduction of deceased Nitish Katara. That defence of accused persons has been dealt with in their judgment.
20. PW6 & 7 are the couple who got married on 16/2/2002 in that wedding. PW6 the groom Amit Arora deposed that marriage was S.C. No. 76/08 25 of 7 26 attended by Vikas Yadav brother of Bharti Yadav and Vishal Yadav whom the witness however did not know prior to that occasion. Witness however deposed that marriage was attended by Nitish Katara, Bharat Diwakar, Gaurav Gupta, Vipin, etc etc who were friends of the bride Shivani Gaur nee Shivani Arora.
21. This witness PW6 further deposed that on the next day morning at around 8.30 or 9 a.m police came to his house and questioned him whether Vikas and Vishal had attended that marriage. Bharat Diwakar was in the company of the police. Witness was then informed that Nitish Katara was missing. Police inquired from the witness as to where from the photograph and videography recording of the marriage had been arranged.
22. Witness then deposed that police asked this witness if the witness had seen Vikas Yadav and Vishal Yadav leaving that wedding site with Nitish Katara and the witness replied in negative. On this point witness was got declared by Ld Addl. PP and was confronted with his 161 Cr P.C statement Ex.PW6/A but witness refuted to have given any such statement or rather any statement of this witness having been recorded by the police. He also refuted suggestion of Ld APP if he had been won over by accused and thus failing to depose the above fact. Though witness was cross S.C. No. 76/08 26 of 7 27 examined by ld defence counsel Sh.Sushil Bajaj but no relevant material could be referred to by Ld defence counsel from this cross examination.
23. PW7 is Shivani Arora. She deposed about Bharti Yadav, Nitish Katara, Bharat Diwakar, Gaurav Gupta as her batchmates at IMT Ghaziabad though she was studying some different course.
th Bharti Yadav was rather her classmate since 7 standard. She deposed that she was got married to Amit Arora on 16/2/2002 and that wedding was arranged at Diamond Palace. Marriage was attended by all above stated friends and rather from the side of Bharti Yadav her entire family except her father Sh.D.P.Yadav attended that marriage and those family members comprised Bharti Yadav's sister Bhavana, their mother, her elder brother Vikas Yadav and younger brother Kunal Yadav. Vishal Yadav cousin of Bharti Yadav also attended that marriage. She further deposed that she saw Nitish Katara also in this wedding and she identified presence of all these persons appearing in photographs Ex.PW6/2 & 3 which had been recorded during this marriage. She further deposed that Nitish Katara and Bharti Yadav were friends as they all were friends. She then specifically deposed that police had not recorded her statement and she was only informed by her husband that police had visited S.C. No. 76/08 27 of 7 28 their house with Bharat Diwakar as Nitish Katara had not returned home. She deposed that on 4/3/2002 she came to know that Nitish had died. In her cross examination taken up by ld counsel Sh. Sushil Bajaj for accused Sukhdev witness deposed that Vishal and Vikas Yadav had come to meet her on the dias of the wedding site at around 10.30 p.m and immediately thereafter they left.
24. Ld defence counsel argued that if Vikas and Vishal Yadav as per testimony of this witness had left at around 10.30 p.m then it would belie the prosecution case that Vikas and Vishal Yadav along with present accused Sukhdev had taken away by way of abduction the victim deceased Nitish Katara from the wedding site at around 11.30 p.m or 12 midnight. This point has already been examined and analysed in the judgment passed against Vishal and Vikas Yadav. Even otherwise the argument failed to convince about the said contention as the court question was put to witness as to what did witness mean Vikas and Vishal Yadav leaving immediately. Witness answered that as she was sitting on the dias and Vikas and Vishal Yadav came on the dias and extended their wishes to her, photographs were clicked and husband of the witness then asked them to take dinner but they told him that were in hurry and left. To another court query if witness was aware as to when they left the S.C. No. 76/08 28 of 7 29 Banquet hall, witness answered ignorance since she was there on the dias. Accordingly from this evidence it could not be taken that Vikas and Vishal Yadav left the Banquet hall itself by around 10.30 p.m.
25. PW8 Rohit Gaur is the brother of the bride Shivani. Witness deposed that Vikas had attended this wedding and witness spotted Vikas Yadav at 11 p.m. He further deposed that Vikas Yadav was accompanied by another person who was tall and fair but witness did not recall his name. Police came to house of this witness with an information that Nitish was missing and they were inquired about. Witness further deposed that from media reports he came to know that Nitish had died.
26. Public Prosecutor found witness not adhering to his earlier 161 Cr P.C statement and accordingly with the permission from court Ld.Special PP crossexamined the witness. Witness denied suggestion if police recorded his statement or that he stated to the police that he saw Bharat Diwakar, Nitish Katara, Gaurav Gupta taking food at around 12 midnight when Vishal came close to Nitish Katara, had a conversation with him and took Nitish Katara out of the Diamond Palace i.e wedding site. He further refuted suggestion if Vikas Yadav was there present outside the Banquet Hall with his S.C. No. 76/08 29 of 7 30 vehicle and that Vikas and Vishal both took Nitish in the said vehicle towards west side or that vehicle was being driven by a driver. Witness was confronted with statement Ex.PW8/A. Witness refuted if any such statement was given by him to the police that Bharti Yadav and Nitish were close friends and that was not to the likings of family members of Bharti Yadav and because of that reason Vikas and Vishal Yadav after abducting Nitish committed his murder.
27. Witness deposed further in this cross examination by Ld. Addl. PP that he came to know regarding arrest of Vikas Yadav only from media reporting. Witness asserted that since he did not know Vishal and Vikas had a talk with Nitish during that marriage and thus there was no occasion for him to go and tell police that Vishal and Vikas did not have any talk with Nitish in that marriage function. Finally a question was put to witness by Ld. Addl. PP that accused Sukhdev facing tirla in the present case was, in fact, the driver of a vehicle Tata Safari wherein accused Vikas and Vishal had taken victim deceased Nitish alongwith and the witness replied since he had not gone out of the wedding site i.e. Diamond Palace so he could not say as to what happened outside that Banquet Hall Diamond Palace. Defence counsel tried to impress upon this court that above suggestion to the witness which must have been put in S.C. No. 76/08 30 of 7 31 this cross examination in accordance with his 161 CrPC statement was contrary to the prosecution case itself. Counsel submitted that prosecution case rather is that this accused Sukhdev was in the vehicle Tata Safari occupying the back seat in the vehicle whereas it has been suggested to witness that he was driving the vehicle. Ld. Addl. PP counter argued on this point that the suggestion might have been an inadvertence and it should not be taken as a fact or a point to demolish the prosecution case. This point of argument shall again be dealt with when this court takes up the incriminating circumstance of victim deceased Nitish Katara last seen in the company of accused persons. Nothing has come in the testimony of this witness favourably to the prosecution except an uncontroverted fact that Vikas Yadav did attend this wedding and witness saw him present in this function at 11 p.m. Ld. defence counsel did not take up any cross examination of this witness.
28. PW9 Nitin Katara is the brother of deceased. This witness was in Pune, Maharashtra on the date of the incident of this case and on being informed from his house about the incident witness claims that he called mobile phone of Bharti Yadav. Witness deposed that he called Bharti Yadav on 17/2/2002 at around 7.30/8 p.m and she appeared upset and told this witness that she had last S.C. No. 76/08 31 of 7 32 seen Nitish with Vikas and Vishal Yadav. The another relevant fact deposed by the witness is that as he reached home in Delhi he found that the wrist watch make ''Espirit'' and mobile phone Blue Eye Samsung which belonged Nitish were not there in the house. He further deposed that the wrist watch had in fact been gifted by Bharti to Nitish. He thereafter deposed regarding some email etc etc. In cross examination witness admitted that in his statement to the police he did not state that when he called Bharti Yadav on 17/2/2002 she appeared quiet upset. He also admitted not to have stated in his police statement that Bharat Diwakar had told him that on the night of the incident of this case a person whose name Bharat Diwakar came to know as Vishal Yadav had called Nitish outside. Even otherwise such a statement would have been only hearsay. He further admitted in cross examination that he did not state to the police that his brother and Bharti Yadav were madly in love with each other and wanted to get married. He was confronted with his police statement Ex.PW9/DA which mentioned only that two were very close friends.
29. PW10 is Ms.Neelam Katara, mother of deceased Nitish Katara. Her evidence is again focused on facts that her son Nitish while studying in IMT Ghaziabad had become close in love with S.C. No. 76/08 32 of 7 33 Bharti Yadav. She deposed that though she was not in favour of that marriage but her children were well aware that if they took a decision then she (witness) would not go against that. She further deposed that from Nitish she came to know that Vikas and Vishal were opposed to that relationship between Nitish and Bharti. Her evidence has then proceeded only concerning Vikas and Vishal Yadav. She deposed that when Bharat Diwakar alone reached her house after attending marriage and Nitish had not accompanied him, on being asked Bharat Diwakar told her that Nitish would be coming with some one and since Nitish did not turn up till next day morning, she called mobile phone of Bharti. She deposed that she asked about Nitish and Bharti replied that she was also worried and was trying to contact him as Nitish had left along with Vikas and Vishal Yadav from marriage party. Witness also called D.P.Yadav, father of Vikas Yadav to know whereabouts of her son Nitish and D.P.Yadav admitted that he too had heard that his son and nephew had taken away Nitish but then he told the witness that as soon he got any information he will inform her. Witness further deposed that she again called Bharti and told her that she would be approaching police and Bharti told her to approach the police saying ''Hone Do unki ladki ki badnami aap ko kya pata aap ke beteke saath wo kya kar rahey S.C. No. 76/08 33 of 7 34 hongey.'' Witness has then deposed that she went to police station Kavi Nagar U.P and lodged report and on 21/2/2002 on being informed by police that she went to mortuary Ghaziabad and identified body of her son Nitish. Witness also deposed regarding DNA proceedings later on taken at AIIMS for ascertain the identity of the deceased.
30. Entire testimony of witness was thus regarding relationship between Nitish and Bharti and then involvement of Vikas and Vishal in this incident. Her evidence has been discussed at length in the judgment whereby Vikas Yadav and Vishal Yadav have been convicted. As regards present accused Sukhdev all this witness deposed is that during investigation and from media she came to know that third accused Sukhdev Pehlwan had also been named as a culprit and the police was looking for him. Besides cross examination on the facts deposed by the witness even concerning Vikas and Vishal Yadav, ld defence counsel took up cross examination on this witness on the point and aspect that ancestors of husband of witness lived in a village Bamroli Katara in District Agra, U.P and witness admitted those facts but refuted defence suggestion that another prosecution witness Ajay Katara who had already been examined against Vikas and Vishal Yadav was in fact a witness S.C. No. 76/08 34 of 7 35 introduced by her and he deposed at her behest, he too being from village Bamroli Katara.
31. Further two witnesses namely Ct.Satender Pal Singh and PW 12 Ct. Inderjit are material witnesses concerning present accused Sukhdev Pehlwan as these two witnesses claimed to have seen deceased Nitish Katara in the company of accused persons in a Tata Safari vehicle when these two constable were present at a T point nearby the Diamond Palace Banquet hall on that intervening night of 16/17/2/2002 and were checking vehicles going to and coming from Diamond Palace and noticed Tata Safari occupied by accused persons as well deceased Nitish Katara at around 12.30 midnight. Their evidence shall be taken up in detail when the incriminating circumstance of ''last seen'' is taken up against present accused Sukhdev Pehlwan.
32. PW13 S.I Ramesh Chander, PW15 Dr. Sanjeev Lalwani from AIIMS, PW16 Finger Print Expert, Finger Print Bureau, PW17 Dr. T.D Dogra from AIIMS, all are concerned with DNA test and finger print examination for ascertaining identity of the deceased and as seen above Ld.Defence Counsel had little controversy as regards identity of deceased Nitish Katara deposed through these witnesses. PW18 Dr. Anil Singhal had conducted the postmortem on the body S.C. No. 76/08 35 of 7 36 of the victim and he proved that postmortem report.
33. PW14 is the star witness of prosecution in this trial namely Ajay Katara who is again a witness on the incriminating circumstance of deceased last seen in the company of accused persons. Testimony of this witness shall be taken up when that incriminating circumstance of last seen comes up for discussion.
34. PW19 is a formal police official witness. PW20 is a police official witness who deposed that he as a part of a team from police station Pateherawa District Kushi Nagar, U.P had apprehended accused Sukhdev Pehlwan on 11.2.2005 in the night at around 1.30 O'clock and a criminal case under IPC and under Arms Act was registered against accused. He further deposed that accused on being interrogated disclosed that he along with coaccused persons had abducted and murdered Nitish Katara.
35. PW20 is concerned with the arrest of accused Sukhdev Pehlwan in U.P and accused chargesheeted in that criminal case. This witness was cross examined on a point if accused Sukhdev Pehlwan when produced before Magistrate after his arrest, accused moved an application stating therein that he had been picked up from his house and shown arrested falsely in that criminal case when this accused failed to succumb to the police pressure to become a S.C. No. 76/08 36 of 7 37 witness against Vikas and Vishal. Witness admitted that in that criminal case registered against Sukhdev Pehlwan all witnesses were only police officials. PW21 S.I Uma Kant Pandey was the investigating officer of that criminal case in U.P.
36. Finally PW22 is the investigating officer of this case namely inspector Anil Somania. This witness deposed that accused Vishal and Vikas Yadav had been named in FIR and they were arrested in this case only on 25/2/2002. Those two accused gave a confession/disclosure and that confession revealed involvement of the present accused though he had been described only as Pehlwan. Witness deposed further that on 2/3/2002 he recorded statement of Ms.Bharti Yadav in the presence of her father as well a lady police officer. Statement of Bharti Yadav revealed real name of Pehlwan as Sukhdev Pehlwan and as per that statement of Bharti Yadav this accused Sukhdev Pehlwan was also present in the wedding on the night of the incident. Witness further deposed that Bharti Yadav knew Sukhdev Pehlwan by the fact and reason that this accused had worked in liquor shop run by her father in Bulandshahar, U.P.
37. Witness further deposed that he took steps to arrest this accused Sukhdev and laid trap in Bulandshahar area on 3/3/2002 but then he could not apprehend accused though a guarantee card S.C. No. 76/08 37 of 7 38 bearing photograph of accused with complete address which witness identified as Ex.PW22/A1 was recovered and seized. Witness deposed that teams were constituted to apprehend this accused and despite several places raided accused could not be apprehended and he was even not available in his native village. Finally this accused was got declared proclaimed offender on 31/3/2002. He further deposed that proclamation was published in the newspaper with his photograph as well through T.V telecast. The arm licence for a double barrel gun which accused was holding from Bulandshahar, U.P was got cancelled.
38. On 11/5/2005, witness deposed, that he received a fax message from Dewariya SO office that accused Sukhdev Pehlwan had been arrested and accordingly witness got him produced before CJM Ghaziabad and with the permission from court he interrogated accused and recorded his confessional statement as Ex.PW22/A4 and with that he charge sheeted accused Sukhdev Pehlwan.
39. PW23 is a Nodal Officer from Vodafone Essar Mobile Services Ltd and this witness was examined by prosecution after getting an order on its application U/s 311 Cr P.C. This is in all the evidence brought by the prosecution against this accused.
40. Accused when examined U/s 313 Cr P.C he denied the S.C. No. 76/08 38 of 7 39 prosecution case. He denied his presence on the wedding site on the intervening night of the incident. He denied his presence in the vehicle wherein deceased was alleged to have been abducted. He pleaded a defence that police wanted him to become witness against Vikas and Vishal Yadav and when he refused to oblige he was falsely arrested and falsely implicated. Accused examined a witness in defence from his native village. Witness Keshwar Singh DW1 deposed that he knew accused Sukhdev Pehlwan. He was wrestler by profession. From 2002 till 2005 accused lived in his village Tarnuwa District Kushi Nagar, U.P. He further deposed that he was arrested by police after he had been picked up from his house in the village in the year 2005. This witness went to the police station and inquired from local police officer as to in what offence he was being arrested and witness was informed that police officer himself did not know exactly what was the matter wherein he had been arrested. Another defence witness has been examined as DW2 who is the Nodel Officer Bharti Airtel Ltd. This is the evidence and material whereby the charge against accused is to be examined whether it could be said to have been duly proved.
MOTIVE
41. Prosecution had attributed a strong motive to other two S.C. No. 76/08 39 of 7 40 accused. That motive as an incriminating circumstance against those two accused has been very elaborately dealt with in the conviction judgment recorded against those two accused. A finding has been recorded on the incriminating circumstance of motive against accused Vikas and Vishal Yadav by referring to evidence and material including letters which were found to have been written and addressed to deceased by Bharti Yadav. Findings are;
''The perusal of this letter apparently gives a loud and clear message that she was madly in love with the deceased. Giving respect to her feelings I do not want to comment any more on the contents of the letter as it was something too personal to her. However, at the same time I cannot restrain myself from observing that as per this letter Bharti, without Nitish, had no meaning in her life. She could not even think of living without him.''
42. Again it has been held that certain letters written by Bharti Yadav suggested that her family members were not for the approval of relationship which had developed between her and Nitish. It has been recorded as a finding in that judgment page 181, ''Sabko happy rakhna hai Haina?
Which also leads to the inference that she had been sent to Shimla on her birthday under pressure and she could not celebrate her S.C. No. 76/08 40 of 7 41 birthday with Nitish despite the fact that she wanted to do so.
It is also written in her aforesaid letter that , Sab Mujhe darate hai samjhate hai but i trust you. Mere trust ko kabhi tootnay mat dena, i love you .
''The above referred contents of her letter showed that she was threatened by her family members who did not approve of her relationship with the deceased and were trying to persuade her to severe of her relationship but she still trusted the deceased and was hopeful. Even in the letter Ex.PW30/C1 she speaks in guarded words that for the last 6 months she was hoping things would change from better to good but they were turning from bad to worse.''
43. Finally it came to be held and observed that it was quiet likely that Ms.Bharti Yadav was a strong headed woman/characteristic of her reflects. From her letters and greeting cards sent to the deceased, it appeared she might have refused to be under the control of her brothers. The defence argument that those two accused persons were not aware of that relationship was found unacceptable. It has been recorded as a finding that it stood proved that Bharti Yadav and Nitish Katara had love affair and wanted to marry and accused persons had knowledge of it and were averse to that relationship.
S.C. No. 76/08 41 of 7 42
44. These findings on motive are specific against Vikas and Vishal Yadav. Present accused having shared motive with other accused will have to be examined from circumstance that he was in the company of those accused when victim deceased was abducted and murdered.
Last seen circumstance
45. Prosecution is strongly relying on this incriminating circumstance of deceased last seen in the company of accused persons. It has been argued by ld. Spl. PP that this incriminating circumstance stands duly proved from the testimony of Ct. Satender Pal Singh PW10, Ct. Inderjeet PW12 and finally from the testimony of PW14 Ajay Kumar Katara. It is furthers submitted that evidence of these witness gets support from the evidence of Bharti Yadav PW.
46. Ld. PP argued that this incriminating circumstance of " last seen" has been held duly proved and established in the trial held against other two accused Vikas and Vishal Yadav and both of them have been convicted.
47. It is further argued that if deceased Natish Katara was seen in the company of accused persons and then the body of victim/deceased was found and spotted by witness Vireder Singh PW23 ( witness Virender Singh was examined during earlier trial S.C. No. 76/08 42 of 7 43 against Vikas and Vishal Yadav and testimony of this witness was adopted by both sides to be taken into consideration as recorded vide order sheet dated 23.10.07) on the very next day in morning at around 9:00 AM by the side of a road of his village in a pit within the jurisdiction of District Bulandsehar then in the absence of accused persons explaining circumstance as to when, how and where they parted company with deceased onus shifted upon the defence and in absence of that onus discharged by the defence, even that sole circumstance of last seen could be found enough to hold accused persons responsible for the murder of victim/deceased Nitish Katara.
48. Ld. Defence Counsel Mr. Sushil Bajaj argued that evidence weighed and analysed and findings recorded against accused Vikas and Vishal Yadav on the basis of evidence cannot be accepted as such for the reasons that presence of Vikas and Vishal at the wedding function site i.e. Diamond Palace, Banquet Hall on the night of 16/17.02.2002 was not in question or controversy and the court while deciding the earlier trial against Vikas and Vishal Yadav had further found strong motive proved and established against those two accused persons, the incriminating circumstance of deceased Nitish Katara last seen in the company of accused persons was examined S.C. No. 76/08 43 of 7 44 and analysed in light of those facts and circumstances appearing on record against those two accused persons, this circumstance of last seen qua present accused Sukhdev alias Pehlwan was to be examined independently, disassociated with any kind of observation made in the earlier trial.
49. Ld. Counsel argued that prosecution itself was not sure as to how it was projecting its case concerning Sukhdev alias Pehlwan, as to how and in what manner decease was seen and found by witnesses in the company of accused persons. Ld. Counsel pointed out that witness Rohit Gaur PW8, who is brother of the bride Shivani Gaur, when examined during investigation his 161 Cr.P.C statement suggested that Sukhdev alias Pehlwan was the driver in Tata Safari vehicle when deceased was taken away and thus last seen in the company of accused persons when Vikas and Vishal Yadav were also there in Tata Safari vehicle. Counsel submitted that PW8 Rohit Gaur when got declared hostile on the point that he saw deceased being taken away by accused persons a suggestion has been put to the witness by Ld. PP that Sukhdev alias Phewan was the driver of Tata Safari vehicle in which accused Vikas and Vishal had left that wedding site alongwith Natish Katara. Witness denied and disputed to have given any such statement to the police and specifically S.C. No. 76/08 44 of 7 45 answered that since he had not gone out of the Diamond Palace and thus he could not say what happened outside the Banquet Hall. The prosecution suggestion itself that witness saw Sukhdev alias Pehlwan as a driver in vehicle Tata Safari was contrary to its own case as other witnesses examined during investigation and then examined in court were supposed to put up the prosecution case that in fact driver in the vehicle Tata Safari was Vikas Yadav and present accused Sukhdev was there in the rear seat of the vehicle.
50. Ld. Counsel further argued that witness Bharti Yadav has not supported the prosecution case and categorically deposed in the present trial that she did not know any person by the name of Sukhdev alias Phelwan and she was not aware if any such person was working in the liquor shop run by her father. Counsel argued that witness was got declared hostile, but her testimony did not at all suggest if she was really hostile to prosecution qua present accused Sukhdev alias Pehlwan. Other two prosecution witnesses police officials Ct. Satender Pal PW10 and Ct. Inderjeet PW12 had also failed to support the prosecution case. Ct. Satender Pal whatsoever little supported the prosecution it was only by accepting the suggestion given by Ld. APP in the cross examination after getting him declared hostile. PW12 Ct. Inderjeet was absolutely hostile and S.C. No. 76/08 45 of 7 46 counsel submitted that in fact before condemning witness, who was police official, hostile to the prosecution case, a serious question mark appeared to the jurisdiction of Investigating Officer in the recording 161 Cr.P.C statement particularly where the witness found surprised when confronted with the facts stated in 161 Cr. P.C statement and he denied to have given any such statement to the Investigating Officer. Ld. Counsel argued that testimony of these two witnesses was contradictory and became unreliable. He further argued that even their 161 Cr.P.C statements were recorded after about 2 weeks of the incident and there was no explanation either by the witnesses or by the Investigating officer for that delay and thus their testimony become vulnerable and defence contentions could not be rejected that those witnesses were planted by the Investigating Officer only to create the incriminating circumstance of last seen. Ld. counsel placed reliance on certain judgments on the point of evidentially value of statement of witnesses whose examination during the investigation was with a delay and there was no explanation for that delay.
51. Finally, ld. defence counsel argued, that prosecution witness Ajay Katara only on incriminating circumstance of the ''last seen'' was unreliable witness whose presence on the spot where he claimed to S.C. No. 76/08 46 of 7 47 have seen deceased in the company of accused persons was completely a chance and thus he could be described to be a chance witness. There was a long one month delay in recording his 161 Cr.P.C statement which was recorded on 18.03.2002 and explanation given by the witness himself for that delay was unacceptable and thereby the witness appeared to be a planted one and was unbelievable and unacceptable.
52. Before we proceed to examine and analyze respective arguments and contentions it will be proper to set out to the evidence deposed by these witnesses.
53. PW10 Ct.Satender Pal Singh is a material witness examined by the prosecution on the incriminating circumstance of th th ''last seen''. Witness deposed that on 16 /17 February 2002 intervening night he with other police staff had stationed their control room vehicle nearby Diamond Palace Banquet hall and were checking the vehicles which were coming from and going towards Diamond Palace. Witness claimed that at around 12.15 O'clock midnight a Tata Safari vehicle came from Diamond Palace side which was got stopped by Ct.Inderjit. Window glasses of the vehicle were rolled on half and the witness saw there were 34 persons sitting inside the vehicle. Witness identified Vikas and Vishal Yadav S.C. No. 76/08 47 of 7 48 amongst those 34 persons as they were already known to the witness. He further saw another person wearing red colour kurta inside the vehicle. Witness then deposed that accused Sukhdev was sitting in that vehicle on the back seat.
54. Special Public Prosecutor found witness to have deviated from his earlier 161 Cr P.C statement and with the permission of court APP cross examined the witness. Witness admitted that Vikas Yadav was driving the Tata Safari vehicle. He was shown then a photograph Ex.PW6/2 and identified that photograph as the one which had been shown to this witness by the IO and the person with red colour kurta in that photograph was identified by him but then witness volunteered that he was not sure if person wearing red colour kurta sitting in Tata Safari vehicle was the same who was appearing in that photograph.
55. In the cross examination on behalf of accused witness deposed that his statement was recorded on the next day or after a day or two. He answered suggestion as wrong and incorrect that he had not come to know about the incident on next day but on 4/3/2002 or i.e what he had deposed in his earlier examination in the trial against Vikas and Vishal Yadav. He admitted that he had not given description of the fourth person present in Tata Safari vehicle.
S.C. No. 76/08 48 of 7 49 Finally defence suggestion put to the witness and he answered as wrong was that accused Sukhdev was not in Tata Safari on that night or that he was identifying that accused only by the reason that he was present in court in this trial.
56. Ld defence counsel argued that witness was unreliable. There was an unexplained delay of more than two weeks in recording his statement during investigation, there were contradictions in his evidence and he was completely contradicted by other constable PW12 Inderjit. Ld counsel further pointed out that where the witness was cross examined by APP and only in that cross examination he proceeded to admit the facts suggested by APP then evidentiary value of such a witness could not be accepted as above board and witness was to be held to be unreliable.
57. Ld APP argued that witness is an official one who was present during the performance of his duty and thus his presence could not be doubted. He submitted that presence of the witness has not been questioned in the cross examination. Delay in recording police statement was on account of no communication between the witness and the IO as the witness had not seen any alarming fact and it was the own case of defence that witness became aware of incident of this case only on 4/3/2002 and thus statement of witness came to be S.C. No. 76/08 49 of 7 50 recorded on 4/3/2002. He submitted that no material came in the cross examination of the witness to discredit his testimony. I have appreciated these submissions.
58. Mere delay in recording statement of witness during investigation may not be a ground itself to disbelieve the witness. In a case Gunnana Vs State of Andhra Pradesh 2008 (11) SCALE 557 it has been held that unless the investigating officer was categorically asked as to why there was delay in examination of witness, defence could not take advantage therefrom. Admittedly no question has been put to the IO as to why and how a delay occurred in recording police statement of this witness. As seen above witness was on a duty checking the vehicles and he did not observe any untoward or alarming fact which could suggest that witness was expected to react in a particular manner. During investigation if the witness was shown the photograph by the IO for getting victim deceased identified whether seen by the witness in the company of some person on that night of the incident, the delay in recording statement of the witness by the IO cannot be considered to affect the veracity of the witness or affect the prosecution case.
59. Another challenge to the veracity of the witness was certain inconsistencies in his evidence ld counsel pointed out that witness S.C. No. 76/08 50 of 7 51 initially deposed that Vikas and Vishal Yadav were sitting in the back seat of the vehicle and that was contrary the prosecution case wherein Vikas Yadav was driving the vehicle and victim deceased Nitish Katara was on the front seat next to driver. Ld counsel submitted that witness having accepted these facts in the cross examination by ld APP then evidentiary value of such a witness should not be accepted as to hold the circumstance proved. I have considered this argument. We have to keep it in mind that since the incident occurred in February 2002, this police official witness appeared for evidence in this trial in December 2006 i.e after more than 4 ½ years. It has been held in Shankara Naik Vs State of Karnataka 2008 (12) SCALE 742 that discrepancies in testimony of witness whose evidence was recorded long after the incident, some discrepancies were bound to appear. Question before court would be whether discrepancies went to the root of the fact and seriously affected the credibility of the witness. When examined in light of the said legal precedent I do not find that discrepancy pointed out by Ld defence counsel was a serious one and credibility of the witness stood seriously affected. Witness was very categorical that when Tata Safari vehicle was got stopped and checked he saw Vikas and Vishal Yadav present in that vehicle and in all 34 persons were there S.C. No. 76/08 51 of 7 52 in the vehicle. Witness has deposed that accused Sukhdev Pehlwan was there inside the vehicle. Defence put to witness in cross examination is only a suggestion that Sukhdev was not in that vehicle. To my opinion cross examination on the witness failed to bring out material to cast a doubt in his evidence of the fact that Sukhdev Pehlwan was there present in the vehicle.
60. It is a matter of record that accused Vikas and Vishal Yadav had been found absent from their house since the incident of this case and they were arrested in Madhya Pradesh where from they were got brought and arrested in this case. Both the accused mentioned name of this accused Sukhdev Pehlwan(though only by mentioned him as ''Pehlwan'') in their confession/disclosure. Though such a confession was inadmissible in evidence but then Ld APP had a valid submission that such a confessional statement provided a course of action for the investigation to the investigating officer. There was no apparent reason that investigating officer or anybody else would get the name of accused noted in the confession. There was no any apparent reason for adopting any such process. Ld APP further pointed out that prosecution witness Bharti Yadav PW38 was examined during investigation in the presence of her father as well a lady police officer. It has been specifically deposed by the IO and S.C. No. 76/08 52 of 7 53 Bharti Yadav did tell in that statement that deceased Nitish Katara had been taken away by Vikas and Vishal Yadav and this accused Sukhdev Yadav who used to work in their liquor shop in Bulandshehar. It is submitted by APP that though Bharti Yadav has not supported the prosecution case for the reasons apparent that other two accused involved were her real brother and her cousin and i.e how she found compelled at the cost of upholding the truth to resile against present accused also. Ld APP submitted that evidence is to be appreciated in such a peculiar background facts of the present case.
61. When submission of Ld APP is considered it appears from record that accused Sukhdev Yadav had been named as coaccused by accused Vikas and Vishal Yadav in their confessional statement though which is inadmissible in evidence. But obviously there was no apparent reason for name of this accused being mentioned by them as their accomplice then testimony of constable Satender Pal Singh provides a credibility to the prosecution theory that accused Sukhdev @ Pehlwan was in the company of accused Vikas and Vishal Yadav on the intervening night of incident of this case. We cannot reject testimony of Ct.Satender Pal Singh as unacceptable and unbelievable. At the most witness may brought in a category S.C. No. 76/08 53 of 7 54 that he is neither wholy reliable nor holy unreliable witness (Vadhivelu Thevar Vs State of Madras AIR 1957 SC 614). The court may seek corroboration and assurance to such evidence. 62 The other prosecution witness Ct.Inderjit PW12 who was in the company of Ct.Surender Pal during inspection and checking of the vehicles has completely resiled. He was declared hostile. According to this witness accused Vikas and Vishal Yadav and victim deceased Nitish Katara were seen in two different vehicles which passed through their checking point in an interval of 15/20 minutes. This was none of the prosecution case from his 161 Cr P.C statement but witness denied to have given any 161 Cr P.C statement. If no 161 Cr P.C statement was given by this witness. then how come he was aware of the facts of the present case incidents is nowhere clear from his testimony. A witness hostile to the prosecution case is to be discarded entirely unless the court finds any fact appearing from his testimony as acceptable and reliable. This witness in cross examination on behalf of accused deposed that Ct.Satender Pal was sitting inside their vehicle and had not come out of his vehicle when this witness was checking the vehicles. How come the witness deposed this fact unless he had got himself recorded as a witness to the investigating officer and thereby he S.C. No. 76/08 54 of 7 55 remained conscious of the incident of this case and remained alive to any such fact as deposed in cross examination. This witness had turned hostile and resiled in the earlier trial against Vikas and Vishal Yadav also and has been condemned in the earlier judgment.
63. Another star witness of the prosecution on this circumstance of ''last seen'' is PW14 Ajay Kumar Katara. This witness stated in th th evidence that on the intervening night of 16 17 February 2002 at around 12.30 midnight he was returning to Delhi from Ghaziabad where he had gone to meet his covillager Head Constable Subhash. He was riding a scooter and as he reached Hapur Chungi, he happened to find his scooter getting broken down. As soon his scooter stopped on the road a Tata Safari vehicle arrived from Kavi Nagar side. Accused Vikas Yadav whom this witness knew since before asked him to remove the scooter. Witness asserted that he knew Vikas Yadav as he was a known personality being son of an M.P in Ghaziabad and he was driving that Tata Safari. Witness further deposed that since some abusive language had been used by Vikas Yadav, it attracted this witness to go close to Tata Safari to see the reason and he then saw a person in red colour kurta with a white colour shawl around shoulder was sitting next to Vikas Yadav.
Vishal Yadav was sitting behind that red Kurta person. Witness
S.C. No. 76/08 55 of 7
56
further deposed that later on he came to know that red colour kurta person was Nitish Katara. Witness further deposed that accused Sukhdev Yadav @ Pehlwan was sitting behind Vikas Yadav in the rear seat. He further deposed that he knew Sukhdev Yadav as accused used to look after the liquor shop of D.P.Yadav in Bulandshehar and this witness had seen Sukhdev Yadav in the company of Vikas Yadav in Ghaziabad. Witness noted number of that Tata Safari on a paper slip and since witness found Vikas Yadav being son of an M.P of that area, he removed his scooter and Tata Safari proceeded towards Ghaziabad.
64. Witness then deposed that after 23 days he saw photo of Nitish Katara on television and recalled that the person seen by him in the company of accused persons in Tata Safari was that victim Nitish Katara and accordingly he decided to go to the police station Kavi Nagar. Name of the IO as Anil Samania also came to his notice and knowledge through television. Witness stated further that he introduced himself to IO Anil Samania in police station Kavi Nagar on 18/3/2002. Prior to that he attempted to meet IO on 2nd and 12th of March 2002 but IO was found not present and available in the police station. He narrated and disclosed all the facts to the IO. Witness during his deposition again identified victim deceased Nitish Katara S.C. No. 76/08 56 of 7 57 appearing in photograph Ex.PW111/5 as the person whom he had seen sitting in Tata Safari vehicle in red colour kurta.
65. Witness was cross examined by Ld APP only on a point that in fact accused Sukhdev Pehlwan present in Tata Safari vehicle was in fact in the rear seat behind Nitish Katara and other accused Vishal Yadav in the rear seat behind Vikas Yadav and witness corrected himself by admitting those facts.
66. When cross examined by defence counsel witness was confronted with his police statement with the fact if accused Vikas Yadav had called any abuses to witness and ld defence counsel submitted that fact deposed by way of improvement was sufficient to challenge the veracity of the witness that on that cause he was attracted towards occupants of the Tata Safari vehicle and went close to that vehicle. Counsel submitted that if there was no abusive language used by Vikas Yadav then the usual conduct of witness would suggest that he did not go towards Tata Safari vehicle and see who were its occupants. Ld APP submitted that though 161 Cr P.C did not specifically mention if any abusive language was used by Vikas Yadav but it did mention that uncivilized language was used by accused. Another improvement confronted to witness is the seat arrangement of the occupants of Tata Safari vehicle as deposed by S.C. No. 76/08 57 of 7 58 the witness was not there in his police statement. Witness was also confronted on the fact if he had gone to police station Kavi Nagar on nd th 2 and 12 March 2002 to contact and meet IO Anil Samania but who was found not available.
67. Another challenge to credibility of this witness in this cross examination is that witness had not in fact visited any such police official Subhash Chander in U.P police then residing in PAC compound Ghaziabad and thus it was a concocted story by the witness and being a chance witness he was unacceptable where no other satisfactory evidence came on the file if the witness did visit a police official Subhash Chander at Ghaziabad and thus was returning at odd hours in the night and then happened to observe facts as deposed by him. In this cross examination witness admitted that he did not know the quarter number of police official Subhash. Ld counsel argued that PAC compound Ghaziabad was a gated and guarded colony and it was not possible for an outsider to enter in to that colony without presence of such a person recorded on the entry gate. Ld counsel argued that the investigating officer had examined Subhash Chander to support and corroborate the fact that this witness did visit Subhash Chander and moved from his residence in odd night hours. Ld counsel relying upon judgments reported as AIR S.C. No. 76/08 58 of 7 59 1976 SC 2032 Behl Singh Vs State of Haryana, AIR 1998 SC 2899 State of Punjab Vs Saroop Singh, AIR 2004 S.C 3559 Shanker Lal Vs State of Punjab, JT 2009 (11) S.C 682 Jarnel Singh Vs State of Punjab and JT 2003 (5) S.C 70 State of U.P Vs Prem & Anr. argued that witness Ajay Katara being a chance witness it was not safe to act upon his testimony.
68. This witness was then cross examined on the point that forefathers of this witness were resident of village Bamroli in district Agra and that most of the people from that village were Katara and i.e how the village came to be named and known as Bamroli Katara. Ld counsel submitted that ancestors of husband of Neelam Katara were from the same village and thereby this witness Ajay Katara being introduced later on as a false witness was a probability and testimony of this witness could not be accepted as creditworthy. Counsel submitted that a delay of one month in witness going to the police to and introducing himself to be a witness further created a serious doubt in his veracity. Ld counsel relied upon certain judgments on the point of delay in recording statement of material witness and its effect. Ld counsel relied upon judgment 2007 (4) JCC 2980 Shanker Lal Vs State 1989 SCC 649, Sunder Singh Vs State of Punjab AIR 1992 S.C 674 State of Karnataka Vs Venktesh, S.C. No. 76/08 59 of 7 60 1996 SCC 1028 Atul Moley Vs State of West Bengal, AIR 7991 SC 1356 Paddy Reddy Vs State A.P and AIR 1986 S.C 593 Pallani Swami Vs State of Tamil Nadu.
69. Another fact appearing in the cross examination of the witness, creating doubt on the presence of the witness on the spot and consequently his veracity, argued Ld Counsel was that the road was a wide one where the scooter of this witness as stated by him went out of order and the vehicle Tata Safari occupied by accused persons stopped. Counsel argued that if the road was around 40 feet wide as has been admitted by the witness where he deposed '' the width of the road including divider of road Ghaziabad to Delhi and vice versa is approximately 40 feet''. Counsel submitted that as a normal natural course of events even if this witness happened to find his scooter coming to halt, the vehicle of accused persons could have passed through and there was no occasion for accused to stop their vehicle and to enter in to any kind of wordly exchange or altercation.
70. Witness admits in cross examination that he did not possess any document that he was residing in Delhi in Brahampuri as stated by him and that supported the defence contention that he was entirely a chance witness Ld counsel submitted.
S.C. No. 76/08 60 of 7 61
71. Conduct of the witness was then questioned in further cross examination where witness admitted that he had married thrice, his third wife was Tanu Chaudhry and she too had filed a criminal case U/s 498A IPC against this witness in the court of Magistrate, Ghaziabad. Another conduct of accused casting doubt in his credibility as deposed by the witness in his cross examination is that though witness deposed that while living in Delhi he was receiving threats from D.P.Yadav to the effect that he was a false witness and would be killed, but then witness admitted that he left his Delhi address soon after the incident of this case and he shifted his residence to Ghaziabad and Ghaziabad area belonged to family of accused persons. Ld counsel submitted that it could not be said to be a normal natural human behaviour that witness receiving threats from a person living in Ghaziabad would shift his residence to Ghaziabad. Finally a suggestion has been put to the witness that he did not witness any such incident as deposed by him and he was not present on that spot he claimed to be and the witness disputed those suggestions. Witness admitted that since the incident till 18/3/2002 he did not discuss or disclose incident to anybody. Witness came out with an explanation that till he met the investigating officer and disclosed the incident he had witnessed, he apprehended a threat to S.C. No. 76/08 61 of 7 62 his life because of desperate nature of the accused persons. Counsel argued that it was a concocted explanation by witness when witness himself shifted to Ghaziabad from Delhi after about a month of the incident. Witness admitted in cross examination that he had obtained personal security from police since 25/4/2002 with the court orders and had been continuing that security with him till the date of his cross examination was being conducted in this case in July 2007. Ld counsel argued that the alleged threat perception given by the witness was a falsity and it reflected on the character of the witness and accordingly the witness was liable to be disbelieved and rejected.
72. As to how witness was acquainted with accused Sukhdev Pehlwan, witness deposed in cross examination that he used to visit liquor shop run by D.P.Yadav in Bulandshehar for purchasing liquor and i.e how he happened to see accused. Witness was questioned if he would visit Bulandshehar to purchase liquor and witness answered that whenever he used to visit Agra, on the way back to Ghaziabad that liquor shop in Bulandshehar fell. Ld counsel argued that how improbable that statement of the witness would be that he was acquainted with accused when he happened to buy a liquor from a shop where accused used to work.
S.C. No. 76/08 62 of 7 63
73. Ld APP argued that there was no reason to disbelieve this witness and this witness has already been held trustworthy and his evidence has already been accepted with very elaborate analysis in the earlier trial held against accused Vikas and Vishal Yadav. He further argued that it was a peculiar case where accused persons involved were influential, accused Vikas and Vishal Yadav being from the family of D.P Yadav and nobody would dare to appear and depose. He further submitted that evidence of this witness is to be appreciated in light of the testimony of PW10 Ct.Satender Pal who had identified the accused persons when they were found moving in a Tata Safari vehicle and victim deceased Nitish Katara was also in their company. I have appreciated these contentions.
74. First the contention and argument of ld defence counsel that Ajay Katara was a chance witness . Witness Ajay Katara could be said to be a chance witness as he happens to be present at odd hours on a place where in a normal course he would not be. However, testimony of such a witness is not to be discarded only by that reason. If the court finds evidence of such a witness acceptable then testimony of witness cannot be thrown out (Sarvesh Narain Shukla 2007 (12) SCALE 290). It is a matter of fact that investigating officer did not join police official Subhash Chander in his S.C. No. 76/08 63 of 7 64 investigation. Presence of Ajay Katara could have been supported by Subhash Chander but then certainly evidence cannot be rejected merely that investigating officer failed to examine that aspect of the matter.
75. Conduct of the witness is sought to be pointed out that he would go close to the vehicle which accused persons were occupying merely by a reason that scooter of the witness had stopped in the middle of the road. If it so happened that accused persons found an obstacle on the road and had to put a brake to their vehicle and if they happened to use any kind of uncivilized language then the witness going close to the vehicle of the accused was a usual human behaviour reaction and it could not be described to be an abnormality. Same is the reasoning that accused persons could have passed through even if scooter of this witness happened to come in a brake down condition. Though a question has been put to the witness as about the width of the road but it is none of the case of accused put in cross examination to the witness that vehicle of accused could have passed through without there being any occasion for their vehicle to stop and enter in to a wordly exchange. Had there been any such specific categorical question to the witness, he would have answered it but then in the absence of any such S.C. No. 76/08 64 of 7 65 question put to the witness it is not permissible to assume that accused persons would have passed through the witness without providing any such opportunity for halting their vehicle.
76. Delay of one month in witness approaching police to get his statement recorded during investigation was another serious criticism from ld. defence counsel. This proposition has been examined while analysing evidence of PW10 and it was found that delay by itself could not be a ground to discard the evidence of a witness and court was to put itself to a cautious approach and come to a finding if testimony of the witness provided a credibility. This aspect has been examined in the judgment earlier passed against accused Vikas and Vishal Yadav. It has been found that delay in reporting the matter by witness who himself saw the crime being committed by accused persons created a serious doubt but then in the present case the witness was concerned with a fact that he happened to see only accused persons and deceased was in their company. It is a fact that within a day or two witness came to know from media reports and television telecast that victim Nitish Katara whom the witness had seen in the company of accused persons had been murdered. A normal usual human conduct expected from the witness was to report the facts seen and observed by him to the S.C. No. 76/08 65 of 7 66 police without delay. But then if witness did not react in that manner was not to be a factor to condemn him as unbelievable witness outrightly. I do agree with the submissions of Ld APP that evidence of this witness should be appreciated in the background that accused Vikas and Vishal Yadav immediately on being arrested in the present case had named the present accused as their accomplice. Witness Bharti Yadav who was examined during investigation in the presence of her father had named this accused Sukhdev Pehlwan as the companion of her brothers Vikas and Vishal as the persons responsible for the incident in this case. Ld APP submitted that this witness had no personal enmity or grudge against any of the three accused persons, he was an independent witness and was to be believed and accepted. He further submitted that even if ancestors of this witness and some ancestors of the husband of complainant Smt.Neelam Katara happened to live in a village merely by that reason witness could not be said to be an unreliable witness being interested witness. I have considered these submissions.
77. It is a matter of record that no reason or grudge has been attributed to this witness as to why he would depose against accused persons. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity (Ram Barose Vs S.C. No. 76/08 66 of 7 67 State of U.P 2009 (14) SCALE 54 ) We have to examine PW14 in the set of circumstances that he claims to have seen certain persons in a vehicle and it being odd hours in the night he happened to see them by a close look when their vehicle stopped. It is some time thereafter that he happened to come to know that one of the occupants of that vehicle whom he had seen in the company of accused persons had been murdered and only then he went to the police to give narration of the facts he himself had seen. There is delay but then witness himself had explained it that on two occasions he did not find investigating officer available in the police station. Witness did not disclose purpose of his visit to any other police officer in the police station but that kind of conduct may not be described as serious abnormality. Witness was a common man, disinterested in the persons involved in the incident and if he reacted in a manner that he went to the police with some delay, his evidence was not to be rejected. Likewise some ancestors of this witness and ancestors of the complainant were from a common village, it was too far to term the witness interested. I do agree with the submissions and arguments of ld APP that evidence of this witness is to be appreciated in the backdrop that name of the present accused Sukhdev Pehlwan had appeared from the mouth of accused Vikas S.C. No. 76/08 67 of 7 68 and Vishal Yadav themselves and from the initial 161 Cr P.C statement of Bharti Yadav. Bharti Yadav did not support the prosecution case but then it was quiet natural that other two accused involved in this case were her brothers. It has been found as a fact duly proved that because of a close love relationship between deceased Nitish Katara and Bharti Yadav, the other two accused had a motive against deceased. When examined in those set of circumstances and particularly absence of any apparent reason as to why this accused was named by other two accused Vikas and Vishal Yadav and also named by witness Bharti Yadav then a credibility is found reflected from testimony of this witness. This witness has already been believed in the trial earlier held against accused Vikas and Vishal Yadav.
78. Ld defence counsel sought to impeach credibility of PW14 from another conduct of the witness that he had entered in to three matrimonial alliances and that reflected the kind and nature the person he was, particularly where all those three matrimonial alliances were disrupted with the lodging of criminal cases by those spouses of this witness. To my opinion there is no law to hold a person uncreditworthy in evidence because of such incidents in his personal life. Court has to see as to why the witness would stand S.C. No. 76/08 68 of 7 69 as a false witness. When PW14 did not have any personal grudge or enmity against accused persons it was difficult to brand witness as unreliable. As regards identity of accused Sukhdev Pehlwan, witness besides deposing that he found this accused conducting business in the liquor shop in Bulandshehar area run by accused persons, he also saw that accused in the company of Vikas Yadav. Ld defence counsel appeared to have a point in his arguments that witness should not be believed that he used to buy liquor from a particular shop where accused Sukhdev was working particularly only when witness happened to visit his native place in District Agra. But then witness deposed that he otherwise used to see accused Sukhdev Pehlwan in the company of Vikas Yadav in Ghaziabad area. No rebuttal defence has been brought on record that Sukhdev Pehlwan had not worked in the liquor shop run by D.P.Yadav or that he had not been around that place in Bulandshehar or Ghaziabad. Witness cannot be discredited on that point.
79. Ld APP referred to cross examination of PW14 appearing at page 27 as recorded on 27/7/2007 to point out that accused persons rather admitted their presence in the vehicle as seen and noticed by PW14. It is relevant to quote this cross examination. ''Except accused Vikas who had abused me on the intervening night S.C. No. 76/08 69 of 7 70 of 1617/2/02, no other occupant of the vehicle had said anything. Again said I do not remember if any other occupant of the vehicle uttered any words. It is correct that at that time all the occupants of the vehicle were sitting comfortably. It is incorrect to suggest that normally there is no electricity on the road where the incident took place''.
80. Witness has accepted the suggestion as correct that occupants of the vehicle were found sitting comfortably . Meaning thereby defence sought to be suggested was that no circumstance indicated any kind of abnormality when the witness saw occupants in that vehicle and thus it would not have led to a situation where accused committed murder of the victim deceased Nitish Katara. There is some substance in this argument of Ld APP. If accused persons along with deceased Nitish Katara were present together in a vehicle and if by that point of time they were seen by PW14 found comfortable, still it was for accused persons to come out with an explanation as to how the victim deceased was murdered, as to when and where he parted his company with the accused persons.
81. Ld defence counsel argued that investigating officer had recorded statement of one Kamal Kishore as Ex.PW35/4. Kamal Kishore was a guard/house servant at the house of D.P.Yadav at 15 S.C. No. 76/08 70 of 7 71 Balwant Rai Mehta Lane, New Delhi. According to that statement of Kamal Kishore accused Vikas Yadav along with Nitish Katara reached Balwant Rai Mehta Lane house in vehicle by around 1 or 1.30 a.m on the intervening night of the incident of this case. Counsel submitted that statement of Kamal Kishore was recorded by investigating officer Anil Samania after taking Kamal Kishore to police station Tilak Marg, New Delhi. Counsel submitted that Kamal Kishore was not sited as a witness in this case and that reflected unfairness in the investigation. It is submitted that if Nitish Katara was seen in the company of Vikas Yadav at around 1 or 1.30 a.m on the intervening night of the incident of this case that goes contrary to prosecution case that three accused persons abducted Nitish Katara in a vehicle and committed his murder.
82. Ld APP counter argued this point and submitted that Kamal Kishore could not be joined a witness in this case as no such person was available or traceable. He submitted that if Kamal Kishore was a house servant or a guard employed and working in the house of D.P.Yadav then he could have been produced by the accused persons themselves. He argued that where Kamal Kishore was not cited as a witness and has not been examined in this case from either side, no inference of unfair investigation or any attempt on the S.C. No. 76/08 71 of 7 72 part of prosecution to suppress any material evidence from the court should be drawn. I have appreciated these contentions. Admittedly Kamal Kishore has not been produced in evidence. Even if for argument sake it is found that Kamal Kishore had seen any such fact that Vikas Yadav along with deceased Nitish Katara reached his father's house at 15 Balwant Rai Mehta Lane, Delhi at around 1 or 1.30 midnight, it was still for accused Vikas Yadav to have come out with a case or an explanation that he happened to be in the company of Nitish Katara and he parted with his company subsequently in a peculiar particular situation. If accused Vikas Yadav did not accept any such factual situation that he along with Nitish Katara were together as seen by around 1 or 1.30 midnight, any such statement Ex.PW35/4 becomes inconsequential and defence cannot be permitted to take its advantage. Even otherwise had it been a situation that all three accused persons along with deceased Nitish Katara were seen and found in a Tata Safari vehicle at around 12.30 midnight by PW14, it being the incriminating circumstance of ''last seen'', seen and observed by prosecution witness lastly, what internal arrangement amongst accused thereafter came to be prosecuted, it was for accused persons to come out with an explanation where the onus shifted upon accused persons in terms S.C. No. 76/08 72 of 7 73 of Section 106 of the Evidence Act that a particular positive fact within their notice and knowledge was to be explained by them. Arguments of Ld defence counsel concerning Kamal Kishore fails to provide any support or favour to accused persons.
Presence of present accused Sukhdev with other two accused Vikas and Vishal Yadav when deceased was in their company on intervening night of incident can be held proved from the evidence of PW14 supported by PW10 and the circumstance that name of this accused figured at the very initial stage of case that he was present at wedding site.
INCRIMINATING CIRCUMSTANCE OF ABSCONDANCE OF ACCUSED SUKHDEV PEHLWAN.
83. Investigating officer PW22 deposed in evidence that name of this accused Sukhdev Pehlwan came to be mentioned by accused Vikas and Vishal Yadav soon after their arrest on 25/2/2002. He further deposed that witness Bharti Yadav was also named this accused in her statement recorded on 2/3/2002 and when he took steps to arrest this accused Sukhdev Pehlwan he was found absconding. He deposed that the liquor shop where he used to work in Bulandshehar was raided but he was absent from that place and S.C. No. 76/08 73 of 7 74 only a guarantee card bearing his photograph could be collected and seized from that shop and investigating officer identified that card as Ex.PW 22/A1. He further deposed that police teams were formed and even accused was not found available in his native village. Arrest warrants obtained against him could not be executed and finally this accused was got declared a proclaimed offender on 31/3/2002. A prize/reward were was also got declared for anybody to provide any clue concerning this accused. He further deposed that proclamation for that award was got published in the newspaper along with photograph of this accused and it was also got television telecast. He further deposed that during investigation it revealed that accused Sukhdev Pehlwan was holding an Arm License for a double barrel gun from Bulandshehar, U.P and that fire arm license was got cancelled in the year 2002. Investigating officer deposed that finally accused came to be arrested from his native place in Dewariya in February 2005. It has been argued from prosecution side that conduct of accused in his abscondance reflected upon his guilty brain and it provides support and corroboration to the prosecution case that he was associate of other two accused persons in the offences of abduction and murder of deceased Nitish Katara. Witness asserted in cross examination that Bharti Yadav specifically S.C. No. 76/08 74 of 7 75 mentioned the fact that this accused Sukhdev Pehlwan used to work in liquor shop of her father in Bulandshehar. Witness refuted defence suggestion that he deliberately omitted to arrest this accused because he wanted this accused to become a false witness against Vikas and Vishal Yadav.
84. Ld defence counsel argued that proceedings to declare accused a proclaimed offender were only got initiated for the sake of proceedings. Counsel submitted that accused has examined a witness from his native place in his defence DW1 who has specifically deposed that accused Sukhdev Pehlwan remained through out present in his native village from 2002 till 2005. This defence witness further deposed that accused was picked up from his house in the village when arrested by the police and no reasons were explained by the police for that arrest.
85. In cross examination this defence witness deposed that he did not know if till 2002 accused Sukhdev was working in the liquor shops in Bulandshehar, U.P which belonged to D.P.Yadav or that accused Sukhdev was residing in Bulandshehar, U.P or that accused Sukhdev Yadav had obtained a fire arm license. Witness admitted that till 2005 accused Sukhdev did not disclose any of the above fact to this witness. Witness further admitted that he did not know if an S.C. No. 76/08 75 of 7 76 award of Rs.25,000/ had been declared for the arrest of accused in the year 2002. Witness admitted that warrants of attachment had been executed in the village in the year 20022003 but even as if the Pradhan in the village he did not ask as to concerning what case those attachment were being executed against Sukhdev. He deposed that he came to know that it were concerning a case from Ghaziabad, U.P. Testimony suggests that even if accused Sukhdev Pehlwan happened to visit his native place in District Kushi Nagar, U.P which was a far away distant place from Ghaziabad or Bulandshehar area, even if process of proclamation warrants or warrants for the attachment of the property of accused Sukhdev had been executed it was none of the notice and knowledge of this witness. Witness admits that though he saw accused Sukhdev Pehlwan present in village from the year 2002 to 2005 he was not aware if accused Sukhdev had worked in the liquor shop of D.P.Yadav prior to 2002 or that during that employment he lived and resided in Bulandshehar, U.P. Accordingly when this circumstance of absence and abscondance of accused from Bulandshehar or Ghaziabad is looked in to in the light of another proved circumstance that he was with the other two accused Vikas and Vishal Yadav when deceased was last seen in the company of accused persons then the S.C. No. 76/08 76 of 7 77 conduct of accused in remaining absent and absconding becomes relevant. No much credit or importance can be given to the testimony of defence witness that from 2002 to 2005 accused remained present in his native village. It is a matter of record that accused Sukhdev when captured and arrested in February 2005 it was not on account of this accused found to have been declared proclaimed offender. He was arrested in a criminal case registered U/s 307 IPC. It further supports the prosecution case that even if accused happened to come and reside in his native village some time after the incident of this case despite having been declared a proclaimed offender, he remained undetected as a proclaimed offender in his native village. Accordingly the fact is found duly proved and established that name of accused Sukhdev Pehlwan figured in this case at a very initial stage and accused was found absent and absconding. Ld defence counsel referred to judgments reported as AIR 1972 SC 10 Rehman Vs State of U.P, AIR 1971 1050 SC Mahir Vs State of U.P and AIR 1974 SC 197 Dater Singh Vs State of Punjab in support of his arguments that circumstance of absence or abscondings by itself could not be treated to be an incriminating one.
86. There is no controversy to the proposition of law that mere S.C. No. 76/08 77 of 7 78 absence and abscondance of accused may not be taken and treated to be a guilty brain and conduct. It has been held in a case Ravinder Kumar Pal Vs Republic of India 2011 (2) SCC 490 that in case a person is absconding after commission of offence of which he may not be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against doctrine of innocence . It is quiet possible that he may be running away merely being suspected, out of fear of the police arrest.
87. The propositions suggests that if a person is found unconnectable to the incident of a case by any other incriminating evidence then mere fact that he tried to run away and remained absconding will not be a conduct or circumstance to draw an inference of guilt. In the present case the other incriminating circumstances that accused shared in the motive which other two accused Vikas and Vishal Yadav had against the deceased and another incriminating circumstance of deceased last seen in the company of accused persons have been found proved then the conduct of accused Sukhdev in his abscondance provides a support and corroboration to the prosecution case.
88. The examination and analysis of the evidence as discussed above brings on record the following circumstances found proved S.C. No. 76/08 78 of 7 79 against accused Sukhdev Yadav which are;
1. Already convict accused Vikas and Vishal Yadav had a strong motive against deceased Nitish Katara which stands proved and established against them in their trial and accused Sukhdev Pehlwan being in the employment on liquor shop business of accused family shared with other two accused in that motive and that sharing in motive is to be inferred from the incriminating circumstance of all three accused found and seen together when last seen with the company of deceased.
2. Deceased was last seen in the company of all three accused persons. Time gap between deceased last seen in the company of accused and dead body of the deceased recovered in the next morning was a small one where from an inference of accused persons having committed the murder of deceased Nitish Katara could be drawn.
3. Abscondance of accused after the incident of this case provided support to the prosecution theory.
89. The above incriminating circumstances are found proved by the prosecution. The circumstances so established can be said to be consistent only with the hypothesis of the guilt of accused. The circumstances are of a conclusive nature and tendency particularly S.C. No. 76/08 79 of 7 80 where last seen circumstance shows that deceased was in the company of accused persons in odd hours in the night and parting of that company of deceased with accused became a strong onus for discharge by accused persons. The circumstances can be said excluding every possible hypothesis except the guilt of the accused persons. The circumstances form a complete chain and no reasonable ground for any inference consistent with the innocence of the accused can be drawn particularly in the absence of accused persons coming out with any explanation. Accordingly I hold that accused Sukhdev Pehlwan shared a common intention with other two already convict accused Vikas Yadav and Vishal Yadav firstly in abducting deceased Nitish Katara and then committed his murder and then putting the dead body to flames/burns in order to cause disappearance of the evidence in order to screen himself of the legal punishment for the said offences. Accused Sukhdev Yadav @ Pehlwan is liable to be convicted U/s 364, 302 & 201 read with Section 34 IPC. I convict him accordingly.
Announced in the Open (J.R.ARYAN) court on 06/07/2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
S.C. No. 76/08 80 of 7 81 State of U.P Vs Sukhdev Yadav @ Pehlwan FIR No.192/02 U/s 364/302/201 IPC P.S Kavi Nagar. 12/07/2011 Present: Spl. PP Mr.Joon for the State.
Convict produced from J.C with counsel Sh.Sushil Bajaj Vide separate order convict has been awarded a sentence of life imprisonment and a fine of Rs.10,000/ with default sentence of 2 years R.I U/s 302 IPC, further awarded sentence of 7 years R.I and a fine of Rs.5,000/ with default sentence of six months R.I U/s 364 IPC, further awarded a sentence of 3 years R.I and a fine of Rs.5,000/ with default sentence of six months R.I U/s 201 IPC upon accused. Substantive sentences shall run concurrently. Copy of the judgment and order sentence be given to the convict free of cost. File be consigned to record room.
(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
12/07/2011.
S.C. No. 76/08 81 of 7