Delhi District Court
State vs (1) Vikrant @Vicky @Thapa on 23 August, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT )
WEST : TIS HAZARI COURTS: DELHI
SC No. 56371/2016
FIR No. 115/2012
U/s. 302/392/411/34 IPC
P.S Mundka
State
Versus
(1) Vikrant @Vicky @Thapa
S/o Inderjeet Thapa
R/o Om Prakash Ka Makan,
Room No.21-22, Ramayan Pana
Tikri Kalan, Delhi.
(2) Sandeep @ Kale
S/o Raj Pal
R/o H.No. 185, Gali No.5,
C Block, Baba Haridass
Colony Delhi.
(3) Rohit Sharma
S/o Dharam Pal Sharma
R/o Khasra no.30/3, Baba
Haridass Colony, Delhi.
Date of Institution : 28.09.2012
Date of reserving Judgment : 31.07.2018
Date of pronouncement : 23.08.2018
Appearances
Sessions Case No.56371/16 Page 1/54
For the State : Ms. Reeta Sharma, Additional
Public Prosecutor.
For Accused Vikrant@ Vicky: Sh. Jitender Ratt,
Advocate
For Accused Sandeep @ Kale : Sh. Yogesh Dagar,
Advocate
For Accused Rohit Sharma: Sh. Rajpal Singh, Advocate
JUDGMENT
Accused persons namely Vikrant @ Vicky @ Thapa S/o Inderjeet Thapa, aged 24 years, Sandeep @ Kale S/o Raj Pal, aged 24 years and Rohit Sharma S/o Dharam Pal Sharma, aged 22 years were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e; Chargesheet submitted on 21.09.2012 upon conclusion of investigation into First Information Report (FIR) No. 115/2012 of police station (PS) Mundka for offences punishable under Sections 302/392/411/34 of the Indian Penal Code,1860 (IPC).
Prosecution Version
2. As per the prosecution story, on 29.05.2012, a Sessions Case No.56371/16 Page 2/54 PCR call was received regarding a dead body lying in a Three-Seater auto Rickshaw (TSR) near diesel factory at Tikri-Nijampur Road which was recorded vide DD No.9A and was marked to Assistant Sub Inspector (ASI) Avdhesh who went to the spot and found the dead body of a male, aged about 30 years, lying in a TSR bearing registration no. DL 1RE 4858. The head of the dead body was hanging outside and there was a blood stained concrete stone lying below his head. Efforts were made to ascertain the identity of the dead body. Crime team as well as Dog Squad was called at the spot. The spot was inspected and photographed. There were some hair in the left fist of deceased. Physical evidence i.e one black button, sports shoes of the deceased, blood stained cigarette, match box, blood stained concrete stone, earth control, TSR, documents of the TSR etc. were seized from the spot. During the investigation, the inquiries about the ownership of TSR revealed the identity of deceased as Balram Singh@ Pappu son of Meghpal Singh. The dead body was sent to mortuary of Sanjay Gandhi Memorial (SGM) Hospital for postmortem examination after Sessions Case No.56371/16 Page 3/54 completing the inquest proceedings. After the autopsy, the dead body was handed over to the legal heirs of the deceased.
3. On 31.05.2012, Vijay Kumar, brother of the deceased told that they were living in Delhi with their brother-in-law namely Arvind Singh at G-2, Gali No.12, Janta Enclave, Prem Nagar, Delhi and deceased used to earn his livelihood by running TSR during night shift. The deceased used to carry mobile phone with SIM no. 99272 88095 and purse which were not found with the dead body. On analysing the CDR of the said mobile number, its IMEI number was revealed to be 359750048078290 which was kept under surveillance. It was revealed that the said IMEI number of phone of the deceased was being used with mobile no. 88602 07730 subscribed to one Phool Mohd. Investigating Officer (I.O) interrogated Phool Mohammad @ Khan who produced one mobile phone make Nokia and revealed that the said phone was sold to him by one Vikrant @ Vicky @ Thapa for Rs.300/- on 14/15-06-2012. The said mobile phone was seized. Phool Mohammad led the police party to the house Sessions Case No.56371/16 Page 4/54 of accused Vikrant @ Vicky who was apprehended. On interrogation, he admitted his involvement in robbery and murder of Balram Singh (deceased), TSR driver alongwith co-accused Sandeep @ Kale and Rohit Sharma. Co-accused Sandeep @ Kale and Rohit Sharma were apprehended who also confessed their involvement in the crime. Disclosure statements of all the three accused persons were recorded. Accused persons got recovered purse of the deceased which was duly identified by Sh. Vijay Kumar, brother of the deceased. Accused persons also got recovered their clothes which they were wearing at the time of commission of offence. They pointed out the place of occurrence. After recording the consent of accused persons namely Vikrant and Rohit, their scalp hair sample were taken. However, accused Sandeep @ Kale refused to give scalp hair sample. I.O. obtained the CAF and CDR of mobile phones number 99272 88095 belonging to the deceased and 88602 07730 belonging to Phool Mohammad. I.O also recorded statements of the witnesses, collected the exhibits including the clothes of the accused persons and sample scalp hair Sessions Case No.56371/16 Page 5/54 of accused Vikrant and Rohit and sent the same to FSL, seized the TSR and collected the postmortem examination report.
4. After conclusion of the investigation, the I.O came to the conclusion that sufficient evidence were collected to establish that the accused persons namely Vikrant @ Vicky, Sandeep @ Kale and Rohit Sharma committed robbery and then murdered Balram Singh (deceased), Accordingly, chargesheet was filed on 21.09.2012 in the court of learned Metropolitan Magistrate who after complying with the provisions stipulated under Section 207 Cr.P.C vide order dated 26.09.2012 committed the case to the court of Session for 28.09.2012.
Charge
5. After hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused vide order dated 02-08-2013, charge for the commission of offences punishable under Section 120B IPC read with Sections 392/404/302 IPC, under Section 302 IPC read with Section 34 IPC and under Section 404 IPC read with Section Sessions Case No.56371/16 Page 6/54 34 IPC was framed against accused persons namely Vikrant @ Vicky, Sandeep @ Kale and Rohit Sharma. A separate charge for commission of offence under Section 411 IPC was framed against accused Sandeep @ Kale. Accused persons did not plead guilty and claimed trial.
Prosecution Witnesses
6. To bring home the afore-mentioned charges to the accused persons, the prosecution got examined HC Ram Bhagat (PW-1), HC Sudesh (PW-2), Ct. Harendra (PW-3), Arvind Singh (PW-
4),Vijay Kumar Tomar (PW-5), Ct. Rajesh (PW-6), Phool Mohd. (PW-7), Dr. Manoj Dhingra (PW-8), Mr. Karuna Kant Pandey (PW-9), Somnath (PW-
10), ASI Ajeet Singh (PW-11), Ct. Subhash (PW-
12),Ct Ayub Khan (PW-13), H.C Joginder Singh (PW-14), ASI Avdhesh Kumar(PW-15), Ct. Surender (PW-16), HC Ashok Kumar (PW-17), Ct. Sumit Shokeen, (PW-18), Mr. Hussain M. Zaidi, Nodal Officer, Idea Cellular Ltd (PW-19), Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service, (PW-20), Sudershan Kumar (PW-21), SI Gulshan Nagpal (PW-22), SI Dinesh Kumar (PW-23), Sh.
Sessions Case No.56371/16 Page 7/54Amit Rawat (PW-24), Poonam Sharma, Senior Scientific Officer ( Biology) (PW-25), SI Anuj Kumar (PW-26), S.S Badwal, Senior Scientific Officer (Physics) (PW-27), Inspector Mahesh Kumar (PW-28), V. Sankaranarayanan, Senior Scientific Officer, FSL (PW-29), Inspector Devender Kumar (PW-30) and Retired ACP Ramesh Chander (PW-31) and Ct. Baljeet Singh (PW-32). Documentary Evidence
7. The prosecution also relied on documents tendered into evidence i.e DD No.9 (Ex.PW-1/A), FIR (Ex.PW-2/A), PCR Form (Ex.PW-3/A), dead body identification statement (Ex.PW-4/A), handing over memo of the dead body (Ex.PW-4/B) dead body identification statement (Ex.PW-2/A), disclosure statement of accused Vikrant @ Vicky (Ex.PW-5/B), seizure memo of clothes of accused Sandeep @ Kale (Ex.PW-5/C), seizure memo of clothes of accused Rohit (Ex.PW-5/D), seizure memo of clothes of accused Vikrant @ Vicky (Ex.PW-5/E), site plan (Ex.PW-5/F), site plan of the place from where clothes of accused Vikrant @ Vicky were recovered (Ex.PW-5/G), site plan of the Sessions Case No.56371/16 Page 8/54 place from where the clothes of accused Sandeep @ Kale were recovered (Ex.PW-5/H), site plan of the place from where clothes of accused Rohit were recovered (Ex.PW-5/J), site plan of the place from where the purse of the deceased was recovered (Ex.PW-5/K), arrest memo of accused Vikrant @ Vicky (Ex.PW-5/L), personal search memo of accused Vikrant @ Vicky (Ex.PW-5/M),arrest memo of accused Sandeep @ Kale (Ex.PW-5/N), his personal search memo (Ex.PW-5/O), arrest memo of accused Rohit Sharma (Ex.PW-5/P), personal search memo (Ex.PW-5/Q), purse of deceased (Ex.P-1), shirt and lower of accused Vikrant (Ex.P-
2) collectively, Shirt and Jeans of accused Sandeep @ Kale (Ex.P-3) collectively, shirt and jeans of accused Rohit Sharma (Ex.P-4) collectively, Death report of the deceased (Ex.PW-5/DA), Photographs (Ex.PW-6/A-1 to Ex.PW-6/A-24), Negatives of the photographs (Ex.PW-6/B) collectively, seizure memo of mobile phone (Ex.PW-7/A), postmortem examination report (Ex.PW-8/A), mobile crime team report (Ex.PW- 11/A), photocopy of entry made in register no.19, Sessions Case No.56371/16 Page 9/54 DD entry no.9A (Ex.PW-15/B), seizure memo of blood stained cigarette, match box and black coloured button (Ex.PW-15/C), seizure memo of blood stained earth (Ex.PW-15/D), seizure memo of blood stained stone (Ex.PW-15/E), seizure memo of earth control (Ex.PW-15/F), seizure memo of blood stained hair (Ex.PW-15/G), Seizure memo of RC and permit of TSR (Ex.PW-15/H), seizure memo of TSR (Ex.PW-15/J), pair of sports shoes of white and blue colour (Ex.PX1), one cigarette having brown stains (Ex.PX2), one match box having brown stain (Ex.PX3), one small plastic button (Ex.PX4), hair found in the fist of the deceased (Ex.PX6), blood stained earth control (Ex.PX6), earth control (Ex.PX7) and concrete stone (Ex.PX8), photocopy of entry no.286 in register no.19 (Ex.PW-17/A), photocopy of entry no.287 in register no.19 (Ex.PW- 17/B), photocopy of entry no.301 in register no.19 (Ex.PW-17/C), photocopy of entry no.309 in register no.19 (Ex.PW-17/D), Road Certificate No.157 (Ex.PW-17/E), FSL receipt dated 12.07.2012 (Ex.PW-17/F), Road Certificate no. 162 ( Ex.PW- 17/G), FSL receipt dated 13.07.2012 ( Ex.PW-17/H), Sessions Case No.56371/16 Page 10/54 Road Certificate No.145 (Ex.PW-17/J), Call Detail Record (CDR) of mobile phone no.99272 88075 (Ex.PW-19/A), Customer Application Form (CAF) (Ex.PW-19/B), Certificate under Section 65B of the Evidence Act (Ex.PW-19/C) Cell I.D Chart (Location Chart) (Ex.PW-19/D), CDR of mobile phone no.88602 07730 (Ex.PW-20/A), CAF of the said mobile (Ex.PW-20/B), certificate under Section 65B of the Evidence Act (Ex.PW-20/C), Superdarinama of TSR DL 1RE 4858 (Ex.PW- 21/A), insurance, fitness and pollution certificate (Ex.PW-21/B), seizure memo of MLC (Ex.PW- 22/A), Disclosure statement of accused Vikrant @ Vicky (Ex.PW-23/A), disclosure statement of accused Sandeep (Ex.PW-23/B), seizure memo of purse with documents of the deceased (Ex.PW- 23/C), FSL Report (Ex.PW-24/A), Biology Report (Ex.PW-25/A), Serology Report (Ex.PW-25/B), seizure memo of viscera, cloths, gauze and sample seal (Ex.PW-26/A), FSL report regarding cigarette stick, one match box, one button, one full sleeve shirt and jeans (Ex.PW-27/A), Scaled site plan (Ex.PW-28/A), Detailed report of DNA analysis Sessions Case No.56371/16 Page 11/54 (Ex.PW-29/A), site plan (Ex.PW-30/A), request letter (Ex.PW-31/A), application for taking hair sample of accused persons (Ex.PW-31/B) and Order of learned Metropolitan Magistrate dated 02.07.2012 (Ex.PW-31/C) Statement of Accused
8. After conclusion of prosecution evidence, statements of the accused persons under Section 313 Cr.P.C were recorded on 21.01.2017 wherein the accused persons denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they have been falsely implicated in the case.
Only accused Vikrant chose to lead evidence in his defence and got examined Surender @ Vikram (DW-1).
Final Arguments
9. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State, Shri Jitender Ratt, Shri Yogesh Dagar and Rajpal Singh, learned Defence counsel for the accused persons. I have also perused the entire material available on record.
Sessions Case No.56371/16 Page 12/5410. During the course of arguments, learned Prosecutor argued that the present case is based on circumstantial evidence. During investigation, accused Vikrant was arrested at the instance of Phool Mohd (PW-7) to whom he had sold the mobile phone of the deceased and therefore, the accused Vikrant has been connected with the commission of the offence. Further, accused Sandeep got recovered purse of the deceased, whereas accused Rohit produced his clothes which he was wearing at the time of commission of offence and one black colour shirt button found at the scene of crime got matched with the shirt buttons of accused Rohit. Further, accused Sandeep refused to give his sample scalp hair for matching purposes with the hair strands found in the left fist of the deceased and therefore, an adverse inference is to be drawn against accused Sandeep. Learned Prosecutor further argued that there was no prior enmity between Vijay Kumar (PW-5) and the accused persons so as to falsely implicate them. PW-5 duly identified the recovered purse to belong to the deceased. Similarly, there was no reason for the I.O Sessions Case No.56371/16 Page 13/54 to falsely implicate the accused persons. Lastly, learned Prosecutor argued that the prosecution sucessfully established its case by proving all the circumstances beyond reasonable doubts and all the accused persons deserve conviction.
11. Per contra, learned Defence counsel for accused Vikrant argued that the presence of the accused Vikrant could not be established by the Prosecution. There is no last seen witness nor any finger prints of accused Vikrant could be found on the weapon of offence i.e stone. Further, the sample scalp hair of the accused could not be matched with the hair strands found in the fist of the deceased. Learned counsel further argued that Phool Mohd (PW-7) was already in possession of the mobile phone Ex.P-1A even on 18.06.2012 and therefore, the recovery of phone cannot be said to be at the instance of accused Vikrant so as to be admissible under Section 27 of the Evidence Act. Further, there are material contradictions in the testimonies of prosecution witnesses which go to the root of the case. Ld. Counsel for accused Sandeep argued that the purse of the deceased was planted upon the Sessions Case No.56371/16 Page 14/54 accused Sandeep by the I.O in collusion with Vijay Kumar (PW-5).The chain of circumstances put forward by the prosecution could not be completed. Further, the accused Sandeep validly refused to give his sample scalp hair for fear of false implication. Ld. Defence counsel for accused Rohit argued that no recovery could be effected at the instance of accused Rohit. His scalp hair also could not be matched with the hair strands found in the fist of the deceased. There are different versions of the prosecution witnesses regarding shirt button found on the scene of crime which has not been shown in scene of crime report Ex.PW-11/A or in site plan Ex.PW-30/A. Further, there was substantial delay in sending the exhibits to FSL after arrest of the accused persons which point out towards the manipulation in the exhibits to falsely implicate the accused. Ld. Defence counsel for all the accused persons, therefore, argued that the prosecution failed to prove its case against any of the accused persons beyond reasonable doubt and all the accused persons deserve acquittal.
12. I have given my thoughtful consideration to Sessions Case No.56371/16 Page 15/54 the submissions advanced by both the sides. Points for Determination
13. In the facts and circumstances of the case and in view of the submissions advanced on behalf of both the sides, following points for determination are emerging:
1. Whether Balram Singh (deceased) son of Meghpal Singh resident of village Jwala Puri, Tehsil Bilari, District Muradabad, U.P died in the night intervening 28/29.05.2012 ?
2. Whether the deceased sustained injuries on his person which were sufficient to cause death in ordinary course of nature ?
3. Whether the death of the deceased was a homicide ?
4. Whether the accused persons entered into a criminal conspiracy with each other to commit offence ?
5. Whether the accused persons while committing robbery upon the deceased, committed his murder ?
6. Whether the accused persons dishonestly misappropriated the property in possession of the deceased, at the time of his decease ?Sessions Case No.56371/16 Page 16/54
Testimonies of Prosecution Witnesses
14. The case of the prosecution is based on circumstantial evidence. In all, 32 witnesses were got examined by the prosecution. For the sake of convenience, the testimonies of all the prosecution witnesses are referred in a tabular form hereunder:
Srl. No. Name of PW Nature of testimony Documentary of PW Evidence PW-1 HC Ram Bhagat Deposed about DD No.9A Ex.PW 1/A (Duty Officer) and proved the same. PW-2 HC Sudesh Deposed abut recording of Ex.PW 2/A& (Duty Officer) FIR and proved the same. Ex. PW-2/B PW-3 Ct. Harendra Deposed about receiving Ex.PW-3/A (CPCR Operator) call regarding dead body and communicated the same. Proved the PCR form.
PW-4 Arvind Singh Identified the dead body Ex.PW-4/A, (Relative of and received the same. Ex.PW-4/B Deceased) PW-5 Vijay Kumar Identified the dead body of Ex.PW-5/B, (Younger Brother of the deceased and identified Ex.PW-5/C, Deceased) the same. Joined the Ex.PW-5/D, investigation, witnessed the Ex.PW-5/E, arrest memos, personal Ex.PW-5/F, search memos of the Ex.PW-5/G, accused persons. Also Ex.PW-5/H,Ex. witnessed recovery of PW-5/J, Ex.PW- purse containing I-Card of 5/K, Ex.PW-5/L, the deceased, clothes worn Ex.PW-5/M, by the accused persons at Ex.PW-5/N, the time of commission of Ex.PW-5/O, Sessions Case No.56371/16 Page 17/54 offence. Identifed the Ex.PW-5/P, accused persons as well as Ex.PW-5/Q,Ex.
the case property in the P-1,Ex.P-
Court. 2(Colly), Ex.P-3
(Colly), Ex.P-4
(Colly),Ex. PW-
5/DA, Ex.PW-
5/DB & Ex.PW-
5/DC
PW-6 Ct. Rajesh Took the photographs, Ex.PW-6/A-1 to
(Photographer) proved the same as well as Ex.PW-6/24,
the negatives thereof. Ex.PW-6/B
(Colly)
PW-7 Phool Mohd. @ Deposed about purchasing Ex.PW-7/A
Khan mobile phone from accused
(Purchaser of Vikrant, led the police to
mobile of deceased) his house and witnessed the
seizure of mobile phone.
Also identified the accused
Vikrant in the court and the
case property i.e mobile
phone.
PW-8 Dr. Manoj Dhingra Performed postmortem Ex.PW-8/A
(SGM Hospital) examination on the dead body of the deceased with Dr. Munish Wadhawan, prepared the postmortem examination report and identified signature of Dr. Munish Wadhawan.
PW-9 Karuna Kant Made a call to 100 number --
Pandey from his mobile and
informed the police about
dead body.
PW-10 Somnath Deposed about giving TSR --
bearing registration no.
DL1RE 4858 to the
deceased. Produced the
Sessions Case No.56371/16 Page 18/54
said TSR to the police for
investigation.
PW-11 ASI Ajeet Singh Inspected the spot and Ex.PW-11/A
(Incharge Mobile prepared inspection report.
Crime Team)
PW-12 Ct. Subhash Joined the investigation -
and deposed about the
same.
PW-13 Ct. Ayub Khan Deposited the sealed --
parcel with FSL Rohini on
the direction of the SHO.
PW-14 HC. Jogender Singh Deposed about deposit of Ex. PW-14/A &
(MHC (M) ) exhibits and entry in Ex.PW-14/B
register no.19.
PW-15 ASI Avdhesh Visited the spot and joined Ex.PW-15/A,
Kumar the investigation with the Ex.PW-15/B,
I.O. Proved DD No.9A. Ex.PW-15/C, Ex. Witnessed seizure of blood PW-15/D, shoes of the deceased, Ex.PW-15/E, piece of blood stained Ex.PW-15/F, cigarette, match box and PW-15/G, one black colour button , Ex.PW-15/H, blood stained earth and Ex.PW-15/J, Ex. earth control, blood stained PX1, Ex.PX2, stone and hair. Further, Ex.PX-3 Ex. witnessed seizure of RC PX4, Ex.PX5, and permit of the TSR. Ex. PX6, Ex. Identified case property in PX7 and Ex.
the Court. PX8.
PW-16 Ct. Surender Deposed about submitting
(Special Messenger) the special dak with
learned Metropolitan
Magistrate and senior
police officers.
PW-17 HC Ashok Kumar Deposed about deposit of Ex.PW-17/A, Ex.
(MHC (M) ) exhibits and entry in PW-17/B,
register no.19. Ex.PW-17/C,
Ex.PW-17/D,
Sessions Case No.56371/16 Page 19/54
Ex.PW-17/E,
Ex.PW-17/F,
Ex.PW-17/G, Ex.
PW-17/H &
Ex.PW-17/J
PW-18 Ct. Sumit Shokeen Deposited the sealed
parcels with FSL.
PW-19 Mr. Hussain M. Produced CDR of mobile Ex PW-19/A, Ex.
Zaidi (Nodal number 99272 88075, CAF PW-19/B, Ex.
Officer Idea of the said mobile, PW-Ex.19/C and
Cellular Ltd.) certificate under Section 65 Ex. PW-19/D
of the Indian Evidence Act
and location chart.
PW-20 Israr Babu Produced CAF of mobile Ex.PW-20/A,
(Alternate Nodal number 88602 07730, CDR Ex.PW-20/B and Officer Vodafone) of the said mobile and Ex.PW-20/C certificate under Section 65 of the Indian Evidence Act PW-21 Sudershan Kumar Deposed about seizure of Ex. PW-21/A and ( Owner of TSR) TSR by the police and Ex.PW-21/B having the same released on superdari.
PW-22 SI Gulshan Nagpal Deposed about collecting Ex.PW-22/A hair samples of accused persons except accused Sandeep who refused to give his hair sample. Also prepared the seizure memo of the said samples and deposited the same with MHC (M).
PW-23 SI Dinesh Kumar Joined the investigation Ex.PW-23/A, and deposed about arrest of Ex.PW-23/B & the accused persons. Ex.PW-23/C Witnessed their disclosure statements and recovery of purse of the deceased.
Identfied the accused
Sessions Case No.56371/16 Page 20/54
persons in the court as well
as the case property.
PW-24 Sh. Amit Rawat Conducted the viscera PW-24/A
(Senior Scientific examination and prepared Officer (Chemistry) detailed report.
FSL PW-25 Ms. Poonam Examined the case property Ex.PW-25/A and Sharma and gave biology report. Ex.PW-25/B ( Senior Scientific Officer (Biology) FSL PW-26 SI Anuj Kumar Recorded dead body Ex.PW-26/A identification statement and witnessed the seizure memo of viscera, cloths, blood gauze.
PW-27 Sh. S.S. Badwal, Examined the case property Ex.PW-27/A
(Senior Scientific and prepared detailed
Officer (physics) report.
FSL)
PW-28 Inspector Mahesh Prepared scaled site plan Ex. PW-28/A
Kumar and proved the same.
(Draftsman)_
PW-29 V.Sankaranarayanan Conducted DNA analysis Ex.PW-29/A
(Senior Scientific and prepared the report.
Officer, FSL) PW-30 Inspector Devender Conducted part/initial Ex.PW-30/A Kumar investigation of the case, (Investigating called the mobile crime Officer) team, sent the dead body of the deceased for postmortem examination, prepared rough site plan, collected the Exhibits, seized the TSR, recorded statement of the mobile crime team officials, prepared rukka, sent the Sessions Case No.56371/16 Page 21/54 same for registration of FIR and made application for preserving the dead body. Also identified the case property in the Court.
PW-31 Retired ACP Conducted rest of the PW-31/A, PW-
Ramesh Chander investigation, recorded 31/B and PW- ( Investigating statements of the witnesses, 31/C Officer) handed over the dead body of the deceased to his relatives, collected CDR of mobile number of the deceased and put it on surveillance. Interrogated the accused persons, arrested them, prepared the arrest as well as personal search memos of the accused persons. Recorded disclosure statement and recovered the clothes of the accused persons and seized them. Moved application for collecting hair samples of the accused persons.
Deposited the Exhibits with FSL. Also identified the accused persons as well as the case property.
PW-32 Ct. Baljeet Singh Joined the initial Ex.PW-32/A investigation, took the rukka to the police station, got the FIR registered and returned to the spot with copy of the same on the spot.Sessions Case No.56371/16 Page 22/54
Testimony of Defence witness
15. Surender @ Vikram (DW-1), deposed that he is a driver by profession and knew the accused Vikrant @ Vicky since 2011. He further deposed that in the month of June,2012 in the evening, he was going to his house and while he was standing at the bus stop of Tikri Border, he saw accused Vikrant @ Vicky present at the said bus stop alongwith his employer. After 2-3 minutes, one boy came there and asked accused Vikrant @ Vicky to get his mobile phone sold to someone. He also stated that accused Vikrant @ Vicky can retain the consideration money and give him only Rs.200/ or Rs.300/- . The said boy gave one mobile phone to accused Vikrant @ Vicky and left.
Analysis Points for determination No.1,2 & 3
16. As per the testimony of Ct. Harender (PW-3), on 29.05.2012 one call was received at CPCR from mobile no. 95554 74452 about one dead body lying in an auto on Nizam Pur Road, Tikri Border which was recorded at about 6:30 a.m vide PCR form Ex.PW-3/A. HC Ram Bhagat (PW-1), Duty Officer, Sessions Case No.56371/16 Page 23/54 of police station Mundka, deposed about receiving a call from control room on 29.05.2012 at about 6:55 a.m. regarding one dead body lying in an auto which he recorded vide DD No.9A Ex.PW-1/A. The said dead body was later identified by Arvind Singh (PW-4) to be of Balram Singh, his elder brother-in- law vide identification statement Ex.PW-4/A. Vijay Kumar Tomar (PW-5) also identified the dead body to be of Balram Singh, his elder brother vide statement Ex.PW-5/A. After the postmortem examination, the dead body of the deceased was handed over to PW-4 and PW-5 vide memo Ex.PW- 4/B.
17. Dr. Manoj Dhingra (PW-8), alongwith Dr. Munish Wadhawan, conducted the postmortem examination on the dead body of the deceased on 30.05.2012. PW-8 identified the signature of Dr. Munish Wadhawan at point B on postmortem examination report Ex.PW-8/A. Following external injuries were found on the dead body of the deceased vide postmortem examination report Ex.PW-8/A:
1. Abrasion 10 x 2 cm soft red involving RF side of face.Sessions Case No.56371/16 Page 24/54
2.Laceration wound present over left eye brow over frontal bone.
3. Contused abrasion over left toe head of size 5 cm x 3 cm soft red
4. Abrasion 3 x 2 soft red over front of kneejoint.
5. Abrasion behind right ear of size 3 x 2 cm soft red.
6.Both eyes black.
7. Ligature mark 23 cm long brown presents over front and sides of necks ligature mark is placed 2 cm blow right mastoid process 4 cm below left mastoid process 4 cm below tip of chin, 7 cm above sternal notch, it is varying in width from 2.5 cm. To 4 c.m.
18. The cause of death was opined to be combined effect of cranio-cerebral damage and asphyxia. The cranio-cerebral damage was consequent upon blunt force impact to the head. All injuries were ante-mortem in nature and injury no.7 was found sufficient to cause death. The time since death was opined to be approximately one and half days.
19. In view of the testimonies of above-mentioned prosecution witnesses, it is established that Balram Singh (deceased) son of Megh Pal Singh met with a homicidal death in the night intervening 28/29-05-
2012 having sustained injuries on his person which Sessions Case No.56371/16 Page 25/54 were sufficient to cause his death
20. Points for determination no.1, 2 and 3 are decided accordingly.
Points for determination No.4 to 6.
21. In the present case, the accused persons have been charged with commission of offences punishable under Section 120B IPC read with Section 392/404/302 IPC, under Section 302 read with Section 34 IPC and under Section 404 read with Section 34 IPC. Accused Sandeep @ Kale was separately charged for commission of offence under Section 411 IPC.
22. To bring home the afore-mentioned charges to the accused persons, the prosecution sought to prove the following circumstances:
(i) Mobile phone make Nokia black colour, IMEI No.359750048078296, SIM no.
9927288075 was being used by the deceased just prior to his death.
(ii) The afore-mentioned mobile phone was found in possession of Phool Mohd (PW-7).
(iii) Phool Mohd (PW-7) had purchased the said phone from accused Vikrant.
(iv) Besides the above-mentioned mobile Sessions Case No.56371/16 Page 26/54 phone, purse of the deceased containing some documents was also found missing.
(v) Some strands of human hair were found in the left fist of the deceased.
(vi) Accused Vikrant was arrested at the instance of Phool Mohd (PW-7).
(vii) On interrogation, accused Vikrant disclosed about his involvement and involvement of accused Sandeep @ Kale and accused Rohit Sharma in commission of offences.
(viii) Accused Sandeep@ Kale and Rohit Sharma were also arrested and on interrogation, they also disclosed about commission of offences.
(ix) The purse of the deceased was recovered at the instance of accused Sandeep @ Kale.
(x) Accused Sandeep @ Kale refused to give his sample scalp hair for DNA examination with the hair strands found in the fist of the deceased.
(xi) Buttons of shirt belonging to accused Rohit matched with the button found on the scene of crime.
23. The afore-mentioned circumstances are analysed under the following heads:
Sessions Case No.56371/16 Page 27/54(i) Recovery of Mobile Phone
24. Vijay Kumar Tomar (PW-5), younger brother of the deceased, deposed about the mobile number 99272 88075 which was being used by the deceased. He further deposed that his mobile phone and purse containing some documents were found missing. During investigation, the afore-said mobile number was put on surveillance which led the I.O to Phool Mohd (PW-7) on the basis of IMEI No. 359750048078296 of mobile phone. PW-7 deposed that he had purchased the said mobile phone from accused Vikrant and used his SIM No.88602 07730 in the said mobile phone. PW-7 handed over the said mobile phone make Nokia black colour which was seized by the I.O vide seizure memo Ex.PW-7/A wherein IMEI no. 359750048078296 of the said phone was also mentioned.
25. Hussain M. Zaidi (PW-19), Nodal Officer, Idea Cellular Ltd., produced the call detail record (CDR) Ex.PW-19/A pertaining to mobile no. 99272 88075 for the period 01.05.2012 to 31.05.2012. PW- 19 also produced Customer Application Form (CAF) Ex.PW-19/B whereby the said mobile number was Sessions Case No.56371/16 Page 28/54 subscribed to Balram Singh son of Megh Pal Singh resident of house no.295, Jwala Puri, Muradabad, U.P. A Certificate under Section 65-B of the Evidence Act Ex.PW-19/C was also produced by PW-19 in support of the afore-mentioned record. Besides, Cell I.D Chart (Location Chart) Ex.PW- 19/D was also produced by him.
26. Israr Babu (PW-20), Alternate Nodal Officer, Vodafone Mobile Services, produced the CDR Ex.PW-20/A pertaining to mobile number 88620 07730 for the period 15.06.2012 to 20.06.2012 and CAF Ex.PW-20/B, whereby the said mobile number was subscribed to Phool Mohd son of Haleem Mohd resident of 463, Heera Market, Baba Haridas Colony, Tikri Kalan, Delhi. PW-20 also issued Certificate under Section 65 B of the Evidence Act Ex.PW-20/C in support of afore-mentioned record.
27. In cross-examination, PW-20 stated that as per the available record mobile no. 88602 07730 was first time used on IMEI No. 359750048078290 on 18.06.2012.
28. In view of testimonies of above-mentioned prosecution witnesses and the documents produced Sessions Case No.56371/16 Page 29/54 by them, it is evident that Balram Singh (deceased) son of Megh Pal Singh was the subscriber of mobile no. 99272 88075. Phool Mohd. (PW-7) was the subscriber of mobile no. 88602 07730. As per CDR Ex.PW-19/A, afore-mentioned mobile number of the deceased was being used in a mobile phone with IMEI no. 359750048078296. Similarly, as per CDR Ex.PW-20/A, the mobile number 88602 07730 subscribed to Phool Mohd (PW-7) was used in a mobile phone with the same IMEI number. The aforesaid IMEI number is also mentioned in seizure memo Ex.PW-7/A which was prepared pursuant to production of the mobile phone Ex.P-1A by PW-7. PW-7 also duly identified the said mobile phone Ex.P-1A which was sold by accused Vikrant to him for a sum of Rs.300/-.
29. In his statement recorded under Section 313 Cr.P.C, in answer to question no.19, accused Vikrant had stated that he knew Phool Mohd to whom he had sold the said phone for Rs.500/-, out of which Phool Mohd had paid him a sum of Rs.300/- only and assured to pay the balance afterwards.
30. Hence, there is no doubt that the mobile phone Sessions Case No.56371/16 Page 30/54 make Nokia having SIM no. 99272 88075 as deposed by Vijay Kumar Tomar (PW-5), belonged to the deceased which was produced to the I.O by PW- 7 who had purchased it from accused Vikrant.
31. The prosecution, therefore, successfully proved the circumstances no.(i) (ii) and (iii) beyond any shadow of doubt.
Arrest of the accused persons and consequent recoveries.
32. Regarding arrest of the accused persons and recoveries, the testimonies of Vijay Kumar Tomar (PW-5), Phool Mohd (PW-7), SI Dinesh Kumar (PW-23) and ACP Ramesh Chander (PW-31) are relevant for consideration.
33. PW-31, I.O of the case, deposed that deceased's mobile number 99272 88075 was put on surveillance and after collecting the CDR of the said number showing the IMEI no. 359750048078290, which was also mentioned, it was revealed that the mobile number 88602 07730 subscribed to Phool Mohd (PW-7) was being used in the phone with same IMEI number. PW-31, alongwith other police offcials, raided the house of Phool Mohd on 02.07.2017 who was found in his house and was Sessions Case No.56371/16 Page 31/54 joined in the investigation. During investigation, Phool Mohd. (PW-7) disclosed that he had purchased the said mobile phone from accused Vikrant for a sum of Rs.300/-. He also produced the mobile phone make Nokia Ex.P-1A which was seized vide seizure memo Ex.PW-7/A. PW-31 further deposed that thereafter, Phool Mohd. (PW-7) led them to the house of accused Vikrant where the accused Vikrant was found present and after interrogation and on the identification of Phool Mohd., he was apprehended. Further, accused Vikrant led them to the house of his associate namely accused Sandeep @ Kale where accused Sandeep @ Kale was also apprehended. Thereafter, both accused Vikrant and Sandeep led them to the house of accused Rohit Sharma where he was also apprehended. PW-31, while deposing, correctly identified all the accused persons present in the Court. Further, PW-31 deposed that all the three accused persons were taken to police post Tikri Border where Vijay Kumar Tomar (PW-5), brother of the deceased also reached who was informed about the apprehension of all the three accused Sessions Case No.56371/16 Page 32/54 persons. Thereafter, after detailed interrogation of the accused persons, accused Vikrant was arrested vide arrest memo Ex.PW-5/L and was personally searched vide memo Ex.PW-5/M. His disclosure statement Ex.PW-5/B was recorded. Accused Sandeep @ Kale was arrested vide memo Ex.PW- 5/N, personally searched vide memo Ex.PW-5/D and his disclosure statement Ex.PW-3/B was recorded. Accused Rohit Sharma was arrested vide arrest memo Ex.PW-5/P, personally searched vide memo Ex.PW-5/Q and his disclosure statement Ex.PW-3/A was recorded.
34. PW-31 further deposed that in pursuance of disclosure statement, all the accused persons led them to Bahadurgarh Railway Station and pointed out the place where they had washed their blood stained clothes. Thereafter, the accused persons led them towards northern side of the platform of Bahadurgarh Railway Station, where purse of the deceased was found at their instance. The said purse with 2-3 papers inside it, was identified by Vijay Kumar (PW-5) to be the purse of the deceased. PW- 31 prepared the pullanda of the purse and after Sessions Case No.56371/16 Page 33/54 sealing it, seized it vide seizure memo Ex.PW-3/C. He also prepared the rough site plan Ex.PW-5/K of the place of recovery of the purse Ex.PW-5/K. Thereafter, they all had gone to the house of the accused Sandeep @ Kale where accused Sandeep @ Kale produced one T-shirt and jeans from his house which he had worn at the time of incident. Thereafter, they all had gone to the house of accused Rohit Sharma where accused Rohit Sharma produced one shirt and jeans from his house which he had worn at the time of incident and thereafter, they all had gone to the house of accused Vikrant where accused Vikrant produced one T-shirt and lower of the track suit from his house which were worn by him at the time of incident. All the above- mentioned clothes were seized vide seizure memos.
35. At this juncture, the testimony of SI Dinesh Kumar (PW-23) needs elaboration who deposed that on 28.06.2012 in the early morning, he alongwith Inspector Ramesh Chander (PW-31) conducted raid at the Tyre-Puncture shop of Phool Mohd (PW-7) which was situated near HP Petrol Pump. Phool Mohd. handed over a mobile phone make Nokia Sessions Case No.56371/16 Page 34/54 stating that the same was sold to him by accused Vikrant. Thereafter, Phool Mohd led them to the house of accused Vikrant who was apprehended at the instance of Phool Mohd. The statement of Phool Mohd was recorded and thereafter, he was relieved. Further, accused Vikrant led them to the house of accused Sandeep who was apprehended and thereafter, both accused Vikrant and Sandeep led them to the house of the accused Rohit who was also apprehended. PW-23 further deposed that all the three accused persons were then taken to police post Tikri Border where they were again interrogated and were arrested. At that time, the brother of the deceased namely Vijay Kumar (PW-5) had also reached at the police post and all the proceedings were done before him. PW-23 further deposed that accused Sandeep thereafter, led them to Bahadurgarh, near Railway Station and there pointing out towards 'Patri', stated that he had thrown the purse of the deceased there. Accused Sandeep produced a purse of black colour from there which was lying on the 'Patri' with some garbage. The said purse was found containing the Sessions Case No.56371/16 Page 35/54 voter I.D card of the deceased and some other documents which were identified by Vijay Kumar (PW-5). PW-23 further deposed that from there accused Sandeep led them to his house where he produced his clothes. Thereafter, accused Rohit led them to his house and produced his clothes and subsequently accused Vikrant also led them to his house and produced his clothes from there.
36. Both PW-31 and PW-23 were cross-examined at length by the learned Defence counsel.
37. The testimonies of both PW-31 and PW-23, when read in conjunction with the testimonies of Vijay Kumar Tomar (PW-5) and Phool Mohd (PW-
7), show that there are material contradictions as borne out of their respective testimonies. For instance, as per the testimony of PW-31 raid was conducted at the house of Phool Mohd (PW-7) on 02.07.2012, whereas PW-23 deposed that a raid was conducted on 28.06.2012 at the Tyre-Puncture shop of Phool Mohd (PW-7). Phool Mohd (PW-7), on the other hand, deposed that on 28.06.2012 accused Vikrant had come to his shop to sell his mobile phone which he purchased for Rs.300/- and started Sessions Case No.56371/16 Page 36/54 using the same with his Sim No. 88602 07730, whereas as per the testimony of Israr Babu (PW-20), said SIM number of Phool Mohd (PW-7) was used in the said mobile phone on 18.06.2012 for the first time. PW-7 further deposed that on the same day, he was apprehended by the police and on inquiry, he told them about the accused Vikrant. In cross- examination, PW-7 stated that accused Vikrant sold the mobile phone to him at his shop where PW-7 was apprehended by the police at about 9 or 10 a.m. PW-23, in his cross-examination, stated that on 28.06.2012, he alongwith PW-31 and other staff had reached at the shop of Phool Mohd at about 6:00 a.m. and had reached at the house of accused Vikrant at about 6/7:00 a.m. Phool Mohd (PW-7), as per PW-23, was relieved at about 8/9:00 a.m, whereas PW-7 himself stated that he was apprehended by the police at about 9/10:00 a.m and was taken first to the police station from his shop.
38. Now, coming to the testimony of Vijay Kumar Tomar (PW-5), he deposed that after about one month of the incident, he was called by the police consequent upon which he had gone to police station Sessions Case No.56371/16 Page 37/54 Mundka where the accused Vikrant was also present in police custody. Accused Vikrant was interrogated and made disclosure statement Ex.PW-5/B, bearing signatures of PW-5 at point A. PW-5 further deposed that accused Vikrant led them to Bahadurgarh Railway Station stating that after commission of the offence, the purse of his brother was thrown in the bushes. The said purse was recovered from the bushes situated near the railway line from Bahadurgarh to Delhi which he identified. Thereafter, accused Vikrant led them to the house of accused Sandeep @ Kale situated at Haridas Colony. PW-5 duly identified both accused Vikrant and accused Sandeep @ Kale who were present in the Court on 30.11.2013. Interestingly, on 30.04.2014 while deposing in the Court, PW-5 deposed that all the three accused persons had gathered by that time and accused Sandeep @ Kale led them to his house at Haridas Colony, Village Tikri and got his clothes recovered. Thereafter, accused Rohit and accused Vikrant led them to their respective houses and got their wearing clothes recovered. PW-5 further deposed that all the accused persons led them to the Sessions Case No.56371/16 Page 38/54 place of incident where the auto was found parked. The police had also prepared site plan of the place of incident as well as of the place from where the purse was got recovered by the accused persons. In cross- examination, PW-5 categorically stated that when he was called at police station Mundka on 28.06.2012, accused Vikrant was already present there. He further stated that all the accused persons had gathered at Baba Haridas Colony, at about 2:00/3:00 p.m. on 28.06.2012. Accused Vikrant had already been arrested whereas remaining two accused persons were arrested from there. On further cross- examination on 31.07.2014, PW-5 stated that he had seen accused Sandeep removing the purse from the bushes near Bahadurgarh Railway Station. PW-5 was allowed to be re-examined by the learned Prosecutor wherein he stated that he was not sure about names of the accused persons, but he pointed out towards accused Vikrant present in the Court and stated him to be the person who got recovered the purse from the bushes.
39. In the afore-discussed facts and circumstances, it is evident that there are material Sessions Case No.56371/16 Page 39/54 contradictions in the testimonies of PW-7, PW-23 and PW-31 regarding date, time, place and manner of interrogation of Phool Mohd (PW-7). The testimony of Vijay Kumar Tomar (PW-5) contradicts the testimonies of PW-23 and PW-31 as far as the arrest of accused Vikrant is concerned. PW-23 and PW-31 deposed that after apprehension of all the three accused persons, PW-5 was informed who thereafter reached at the police post Tikri Kalan, whereas PW-5 deposed in categorical terms that the accused Vikrant was found present in the police station Mundka when he was summoned there on 28.06.2012 who then led the police party to Bahadurgarh Railway Station.
40. A conjoint reading of all the afore-mentioned prosecution witnesses would indicate that it is not clear who got the purse Ex.P-1 recovered - whether it was accused Vikrant or accused Sandeep or all the three accused persons simultaneously, who led the police party and got the purse recovered. It is pertinent to note here that the date of offence was the night intervening 28/29-5-2012, whereas the purse Ex.P-1 could be recovered on 28.06.2012 from Sessions Case No.56371/16 Page 40/54 a heap of garbage near the platform of Bahadurgarh Railway Station. In the given circumstances, a doubt has arisen regarding the manner of arrest of the accused persons and recovery of purse made in the manner deposed by the aforesaid prosecution witnesses.
Recovery of Black Colour Shirt Button
41. As per the testimony of ASI Avdesh Kumar (PW-15) and Inspector Devender Kumar (PW-30), one black colour button was found in the TSR where the dead body of the deceased was found lying. Besides, one blood stained stone, one pair of blood stained sport shoes, one blood stained cigarette and one blood stained match box were also found which were sealed and seized vide memo Ex.PW-15/C. ASI Ajeet Singh (PW-11), Incharge of Mobile Crime Team, on the other hand, deposed about finding one blood stained stone, blood stained pair of sport shoes and one Gold Flake cigarette at the spot. He did not depose about finding any black colour shirt button. In cross-examination, PW-11 stated that he had minutely inspected the spot and had mentioned each and every fact of article found present at the spot in Sessions Case No.56371/16 Page 41/54 his report Ex.PW-11/A. A perusal of report Ex.PW- 11/A would show that there is no mention about any black colour shirt button. Similarly, Ct. Rajesh (PW-
6), the Photographer, could not depose if any photograph of any shirt button was taken by him at the spot. No such button is visible in any of the photographs Ex.PW-6/A-1 to Ex.PW-6/A-24. The prosecution sought to link the black coloured shirt button with the buttons stitched in the shirt produced by accused Rohit from his house, in view of FSL report Ex.PW-27/A whereby S.S Badwal (PW-27) examined the button Ex.2c and buttons marked B/1 to B/9 which were found to be possessing similar physical characteristics. However, as discussed before, the arrest as well as the recovery of wearing clothes of all the three accused persons is not free from doubt. To compound the same, the testimony of PW-11 and PW-6 further creates doubt on the prosecution version.
Accused Sandeep's Refusal to give his Sample Scalp Hair
42. Another circumstance proposed by the prosecution is that as some hair strands were found Sessions Case No.56371/16 Page 42/54 in the left fist of the deceased which were seized vide seizure memo Ex.PW-15/G, all the three accused persons were asked to give their sample scalp hair for matching purposes, but only accused Vikrant and accused Rohit consented for the same, whereas accused Sandeep refused to give his sample scalp hair and therefore, an adverse inference is to be drawn against accused Sandeep.
43. As per the testimony of V. Shankraya Narayan (PW-29), vide DNA analysis report Ex.PW-29/A, DNA profile generated from the source of ex.2 i.e strands of hair of accused Vikrant and ex.3 i.e strands of hair of accused Rohit Sharma were found dissimilar with the DNA profile generated from the source of ex.1 i.e strands of hair found in the fist of the deceased.
44. As per record during investigation, I.O had moved an application before the learned Metropolitan Magistrate for obtaining the sample scalp hair of all the three accused persons. Accused Sandeep had not consented for giving his sample scalp hair and therefore, the sample scalp hair only of accused Vikrant and accused Rohit were obtained Sessions Case No.56371/16 Page 43/54 by the I.O vide MLCs dated 05.07.2012 and were sent to FSL for DNA examination for matching with the hair strands found in the left fist of the deceased. On refusal of accused Sandeep to give his sample scalp hair, no further proceedings were conducted against him by the I.O in this regard. Here, Section 53 Cr.P.C needs to be referred which stipulates about the examination of an accused by registered medical practitioner at the request of a police officer and provides that it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of Sub Inspector, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford evidence as to the commission of an offence. Section 53 Cr.P.C further provides that such registered medical practitioner may use such force as is reasonably necessary for that purpose. Explanation (a) appended to the said Section provides that examination 'shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of Sessions Case No.56371/16 Page 44/54 modern and scientific technique including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case'.
45. As is clear from the record except moving an application before the learned Metropolitan Magistrate for obtaining sample scalp hair of the accused persons, which in my considered opinion, was not warranted, the I.O failed to take any further action to obtain the sample scalp hair of accused Sandeep despite there being a Legislative Sanction under Section 53 (1) Cr.P.C in this regard. Therefore, I do not find any merit in the contentions of learned Prosecutor that an adverse inference be drawn against accused Sandeep for refusing to give his sample scalp hair in the present case.
46. As per the settled propositions of law, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. In Sharad Birdhichand Sarda v. State of Maharashta (1984) 4 SCC 116, which is considered a locus classicus on circumstantial evidence, it was laid down that the facts so Sessions Case No.56371/16 Page 45/54 established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. Further, the circumstances should be of a conclusive nature and tendency and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
47. In Sujit Biswas V. State of Assam - (2013) 12 SCC 406, in the contextual facts constituting circumstantial evidence, it was also ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstance established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused.
48. Further, in Dhan Raj @ Dhand V. State of Haryana - (2014) 6 SCC 745, while dwelling on the imperatives of circumstantial evidence, it was ruled Sessions Case No.56371/16 Page 46/54 that the same had to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only an inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjectures.
Conclusion
49. In view of afore-discussed facts and circumstances, in my considered opinion, the prosecution could only prove circumstance no. (i),
(ii) & (iii). Rest of the incriminating circumstances against the accused persons could not be proved conclusively, beyond reasonable doubts.
50. There are material discrepancies in the testimonies of prosecution witnesses regarding arrest of accused persons as well as regarding recovery of purse. The prosecution also could not establish conclusively if any black colour button was found Sessions Case No.56371/16 Page 47/54 on the scene of crime. As discussed earlier, the recovery of wearing clothes of the accused persons at their instance is also not free from doubts. Similarly, no adverse inference can be drawn against accused Sandeep @ Kale for refusing to give his sample scalp hair.
51. Therefore, in the entire circumstances none of the accused persons could be connected with the commission of offences charged. There is nil evidence if the accused persons entered into criminal conspiracy with each other.
52. However, it has been established that Phool Mohd (PW-7) had purchased the mobile phone Ex.P-1A from accused Vikrant. In his statement recorded under Section 313 Cr.P.C, accused Vikrant admitted to have sold the mobile phone Ex.P-1A to Phool Mohd (PW-7) for a sum of Rs.500/-, out of which he received sum of Rs.300/- only. Accused Vikrant also claimed that the mobile phone Ex.P-1A was given to him by co-accused Sandeep @ Kale, however, Surender @ Vikram (DW-1) who was got examined by accused Vikrant in his defence, deposed that in the month of June,2012 one mobile Sessions Case No.56371/16 Page 48/54 phone was given by one boy to accused Vikrant @ Vicky at the bus stop of Tikri Border in his presence who thereafter had left from there. DW-1 did not identify accused Sandeep @ Kale to be the same person who, as he claimed, had given the mobile phone to accused Vikrant. No other evidence was led by the accused Vikrant to show that the mobile phone Ex.P-1A was given to him by any person. Therefore, there is no doubt that the mobile phone Ex.P-1A, belonging to the deceased, was with accused Vikrant, possession of which he failed to account for.
53. Points for determination 4 to 6 are decided accordingly.
54. Hon'ble Supreme Court in case titled as Jose @ Pappa Chan V. The Sub-Inspector of Police, Koyilandy & Anr, criminal appeal no. 919 of 2013 decided on 03.10.2016, relying upon Sujit Biswas V. State of Assam (2013) 12 SCC 406, in the contextual facts constituting circumstantial evidence, ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the Sessions Case No.56371/16 Page 49/54 accused alone is the perpetrator of crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused. As observed above, the prosecution could establish circumstances no.(i),(ii) & (iii) which are not sufficient to hold that it were the accused persons and only the accused persons, who committed robbery and murder as alleged in the present case. In this regard, the law laid down in Sanwat Khan & Anr V. State of Rajasthan AIR 1956 SC 54 is fully applicable to the facts of the present case where the Hon'ble Supreme Court had taken a view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence and unless there are "circumstances" to show that the theft/robbery and murder took place "in the same transaction" the accused would not be liable for the offence under Section 302 IPC. The Sanwat Khan (supra) case was relied on with approval by the Hon'ble Supreme Sessions Case No.56371/16 Page 50/54 Court in its recent decision in Raj Kumar @ Raju V. State (NCT of Delhi) Criminal Appeal No. 1460 of 2011 decided on 20.01.2017 to reiterate that the recovery of ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation, but beyond a strong suspicion nothing else would follow in the absence of any other circumstances, which could suggest the involvement of the accused in the offences alleged and even with the aid of presumption under Section 114 of the Indian Evidence Act, 1872 the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murders occurred at the same time i.e. in the course of the same transaction.
55. In the above-discussed facts and circumstances, in my considered opinion, the prosecution succeeded in establishing only the circumstance i.e. possession of mobile phone Ex.P- 1A with accused Vikrant who failed to account for its lawful possession with him.
56. Accordingly, in view of above-discussed facts and circumstances, I extend the benefit of Sessions Case No.56371/16 Page 51/54 doubt to the accused persons and acquit them of the charges for the offences punishable under Section 120B IPC and under Sections 302/392/404 read with Section 34 IPC. However, accused Vikrant is held guilty for commission of offence punishable under Section 411 IPC and is convicted.
57. Resultantly, accused persons namely Vikrant @ Vicky @ Thapa S/o Inderjeet Thapa, Sandeep @ Kale S/o Raj Pal, and Rohit Sharma S/o Dharam Pal Sharma are acquitted of the charge qua offences punishable under Sections 120B IPC read with Section 392/404/302 IPC and under Section 302 read with Section 34 IPC, under Section 392 read with Section 34 IPC and under Section 404 read with Section 34 IPC.
58. Accused Sandeep @ Kale son of Raj Pal also stands acquitted of the charge for the offence punishable under Section 411 IPC.
59. Accused Vikrant @ Vicky son of Inderjeet Thapa is convicted for the offence punishable under Section 411 IPC.
60. Let the convict Vikrant @ Vicky be heard on the point of sentence.
Sessions Case No.56371/16 Page 52/5461. Arguments heard on the point of sentence.
62. It is submitted by the convict that he belongs to a poor family and has the responsibility of his old parents, wife and one daughter aged about 7 years who is school-going. His two brothers are living separately. Prior to involvement in the present case, he used to drive vehicle on contract basis to earn his livelihood. It is, therefore, prayed that in view of his poor financial background, a lenient view be taken while imposing sentence on him.
63. On the other hand, Ld. Additional Public Prosecutor for the State submitted that the victim of the offence i.e. legal heirs of the deceased may be awarded suitable compensation either by way of imposing fine upon the convict or by passing the order for compensation to be paid to the legal heirs of the deceased by virtue of Section 357A Cr.P.C.
64. Having heard the submissions on both sides, I hereby sentence the convict Vikrant @ Vikcy son of Inderjeet Thapa to undergo rigorous imprisonment for three years and to pay fine of Rs.2,000/- for committing offence punishable under Section 411 IPC . In default of payment of fine, the convict is Sessions Case No.56371/16 Page 53/54 further sentenced to undergo rigorous imprisonment for three months.
65. The benefit of Section 428 Cr.P.C is extended to the convict Vikrant @ Vicky son of Inderjeet Thapa.
66. Bail Bonds under Section 437A Cr.P.C were furnished by the accused persons namely Sandeep @ Kale and Rohit Sharma and convict Vikrant @ Vicky with photo and residential proof of the surety vide order dated 20-03-2018 which are accepted for further six months.
67. In view of Section 365 Cr.P.C, a copy of the judgment be also sent to District Magistrate concerned for his information.
68. The Legal heirs of Balram Singh@ Pappu (deceased) are referred to District Legal Services Authority (West) for award of suitable compensation.
69. File be consigned to Record Room after due compliance.
(Pronounced in the open Court (Kuldeep Narayan) on 23-08-2018). Additional Sessions Judge (Pilot Court) West : Room No. 33: Tis Hazari Courts Delhi Sessions Case No.56371/16 Page 54/54