Delhi District Court
State vs Gautam Jain on 17 January, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01), CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
CNR No. DLCT01-001540-2014
SC No. 27881/2016
FIR No. 383/2013
U/Sec. 302/201/363/364A/419/468/471 IPC
P.S: Burari
STATE VERSUS GAUTAM JAIN & ORS.
(i) SC No. of the case : 27881/2016
(ii) Date of commission of offence : 21.09.2013
(iii) Name, parentage and address : (1) Gautam Jain
S/o Sh. Bhanwar Lal
R/o J-1081, Jahangir Puri
Delhi-110033.
(2) Sandeep Kumar
S/o Late Sh. Ratan Singh
R/o D-68, Nangli Poona
Extn., Delhi-110036.
(3) Mukesh Kumar Sharma
S/o Sh. Madhu Sudan
Sharma
R/o H.No. 16/25, Gali
No.16, A-1 Block
Bengali Colony
Sant Nagar, Burari
Delhi-110084.
Permanent Add.-Village
Khandak, Deva Road
PS Chinhat, Distt.
Lucknow, Uttar Pradesh.
SC No. 27881/2016
FIR No. 383/2013
State Vs. Gautam Jain & Ors. Page 1 of 174
(4) Sandeep Kumar @
Sunny
S/o Sh. Raj Kumar
R/o K-1823, Jahangir Puri
Delhi-110033.
(iv) Offence complained of : Under Section:
364/419/468/471/302/
201/120B IPC
(v) Plea of the accused : All the accused pleaded
not guilty and claimed
trial.
(vi) Final order : All the accused person are
Acquitted.
Date of Institution : 10.01.2014
Date of Judgment reserved on : 18.12.2024
Date of Judgment : 17.01.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh.
Kishan Lal on which FIR No. 383 Ex.PW3/A dated 21.09.2013 was registered under Section 363 IPC regarding commission of offence on 21.09.2013 around 11:30 AM information of which was received at police station at about 6:35 PM on the said date vide general diary no. 30A. The certificate under Section 65B of Indian Evidence Act regarding correct registration of FIR is also filed alongwith. DD No. 30A is SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 2 of 174 Ex.PW3/B on record which is recorded by HC Joginder Singh. The DD was recorded in reference to missing of boy Jatin Dhingra aged about 13 years who had height of 4 feet 2 inch. The boy had left the home around 11:30 AM on 21.09.2013 that he is going to the house of his friend to collect a copy and after which the boy did not return at home. The FIR was registered at PS Burari and missing information was circulated at TV channel, Zip Net and after registration of FIR investigation was handed over to SI Rajnish Kumar. SI Rajnish Kumar, complainant and Ct. Naveen had left for the spot for further investigation of the case. The demand of ransom from Ms. Raj Dhingra, mother of the child was received at her mobile no. 9718703685 and the call was received from no. 8744806631. Rs.10 lakh ransom was demanded and on such demand Section 364A was added in the case during investigation and Senior Officer Insp. Naresh Kumar had led the team. The mobile number of the ransom caller was registered in the name of Manoj Kumar. Accused Sandeep Kumar was called for investigation on account of suspicion. Manoj Kumar had told that the voter ID enclosed with CAF was given by him in the year 2009 to accused Gautam Jain. On identification of Manoj Kumar, accused Gautam Jain was apprehended at G.T.K depot. Accused Gautam Jain had told that voter ID in the name of Manoj Kumar was given by him to his friend Sandeep Kumar who is accused in this case. He had given this ID on framing of plan by accused no. 2 Sandeep Kumar that he need this voter ID for the purpose of kidnapping a boy to extort a ransom share in which had to be given to accused Gautam Jain.
2. On 23.09.2013 during investigation accused no. 2 Sandeep Kumar had disclosed that he had lost a huge amount in society and SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 3 of 174 gambling on account of which he alongwith accused no. 3 Mukesh Kumar Sharma and accused no. 4 Sandeep Kumar @ Sunny had planned to kidnap the victim Jatin Dhingra. Accused no. 2 Sandeep Kumar alongwith accused no. 4 Sandeep Kumar @ Sunny had purchased the SIM of mobile phone from a mobile shop at Nathupura after obtaining voter ID of Manoj Kumar from accused Gautam Jain. The SIM was purchased by Mukesh Kumar Sharma from Burari village, mobile shop and the SIM was activated. On 21.09.2013 accused Mukesh Kumar Sharma/accused no. 3 had kidnapped the victim Jatin Dhingra in his Wagon R car no. DL-9CX-1861 and bought the victim to mobile store of accused no. 4 Sandeep @ Sunny at Sunny Medicos, Harit Vihar, Pepsi road, Burari, Delhi. There they administered 15 Alprex tablets in the cold drink and made victim Jatin Dhingra to drink it. Accused no. 4 Sandeep Kumar @ Sunny had refused to keep the victim in his custody on which they had planned to kill the victim Jatin Dhingra. On such plan accused no. 2 Sandeep Kumar and accused no. 3 Mukesh Kumar Sharma had taken the victim Jatin Dhingra at Nangli, Puna Nala near Royal Farm House. They had suffocated the victim by a small car seat available in the car and also pressed the neck of the victim. When they got confirmed that the victim is no more then they had thrown the body of the boy in the drainage/nala.
3. After throwing body of the boy accused Sandeep Kumar @ Sunny/accused no. 4 had called Ms. Raj Dhingra for ransom. Section 302/201 IPC was added during investigation in the case by SI Rajesh Kumar. On pointing out by accused Sandeep Kumar the co-accused no. 3 Mukesh Kumar Sharma was arrested at Gali no. 16, A-1, Block Bengali SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 4 of 174 Colony, Sant Nagar, Burari, Delhi. The co-accused no. 4 Sandeep Kumar @ Sunny/accused no. 4 was arrested from front of his medical shop on identification by accused no. 2 Sandeep Kumar and accused no. 3 Mukesh Kumar Sharma. On checking the bag of accused no. 4/ Sandeep Kumar @ Sunny a mobile phone SIM was recovered and it was disclosed by accused that from this SIM he had made the ransom call. One open mobile phone was also recovered from the bag.
4. On 23.09.2013 on pointing out by accused no. 2 and 3 the dead body of victim was recovered from Nangli, Puna drainage/ Nala. The body was identified by Sh. Kishan Lal father of the victim and Sh. Jasvinder Singh maternal uncle of the victim. After postmortem the body was handed over to the father. Viscera and blood sample were preserved. The mobile shop by the name Dimple Telcom was pointed out by the said accused that from the said shop SIM was purchased. During PC remand of accused Gautam Jain on 24.09.2013 on pointing out by the said accused the attested document of Manoj Kumar i.e. voter ID card, marksheet, ration card, copy of 10th class certificate were seized. Wagon R in which the victim was kidnapped was seized from J-Block, Jahangirpuri, Delhi on pointing out by accused Sandeep Kumar/accused no. 2. Accused no. 4 Sandeep Kumar @ Sunny and accused no. 2 Sandeep Kumar had pointed out Kishore Communication at Nathupura from where mobile phone was purchased to make the ransom call.
5. Accused Mukesh Kumar Sharma had refused TIP on 25.09.2013 which was got to be conducted by SI Vishwnath Paswan. The identification had to be done by witness Shyam Sunder working at SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 5 of 174 Dimple Telcom. On 25.09.2013 on pointing out by accused Sandeep Kumar the slipper of victim Jatin Dhingra was seized and the said slipper was identified by father of the victim/complainant Sh. Kishan Lal.
6. On 26.09.2013 accused no. 4/ Sandeep Kumar @ Sunny had pointed out Sunny Medicos Harit Vihar, Burari, Delhi from where he had taken strip of Alprex tablets which were mixed in the cold drink of the victim. The keys of the medical store which were used to crush the Alprex tablet were seized from the house of the accused no. 4 on his pointing out at K-1823, Jahangir Puri, Delhi and the plastic bowl was also seized in which the said Alprex tablet were crushed. The blank envelope of idea SIM was also seized in which the said tablets were kept.
7. On 27.09.2013 the voice sample of accused no. 2 Sandeep Kumar was sent to FSL for matching the voice of the accused. The witness Kishore Kumar Mishra owner of Kishore Publication had correctly identified accused no. 4 Sandeep Kumar @ Sunny in TIP proceedings and accused no. 2 Sandeep Kumar had refused the TIP proceedings. FSL report was also collected by IO on the exhibits collected and examined from Wagon R car no. DL-9CX-1861. The voice recorded at the time of activation of SIM card of accused bearing mobile no. 8744806631 was also examined after collection from Idea company. Original CAF, certified copy of call details and location chart were also examined of the mobile phone number.
8. The postmortem report has disclosed the cause of death as Asphyxia due to ante-mortem drowning. Viscera was preserved in respect SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 6 of 174 of chemical intoxication. The relevant evidence was collected and Section 419/468/471 IPC were added since the accused had taken mobile SIM in the name of Manoj Kumar by impersonating as Manoj Kumar. They had signed fraudulently in the name of Manoj Kumar. Accused Gautam Jain has fraudulently used ID, photo of Manoj Kumar and illegally used SIM obtained. Accused no. 3 Mukesh and accused no. 2 Sandeep both had went to illegally collect the SIM from the mobile phone shop. After investigation the chargesheet was filed and cognizance of offence was taken.
9. Copy were supplied to the accused of the chargesheet on 08.01.2014 and their separate statement in this regard was recorded.
Charge was given to all the accused under Section 364/419/468/471/302/201/120B IPC to which all the accused have pleaded not guilty and claimed trial. Prosecution has led witness PW-1 to PW-48 as evidence against the accused person. Accused no. 2 Sandeep Kumar S/o late Sh. Ratan Singh has gave his statement on 29.05.2018 that he has no objection that his evidence be recorded in absence of his Counsel. He did not avail legal aid services offered to him. However Sh. Anil, Advocate present had safeguarded his interest and he did not seek to cross-examination PW-1 Sh. Amar Nath Singh. The Statement of Accused under Section 313 Cr. P.C. of all four accused person was recorded and all accused person have preferred not to lead any evidence in their defence and DE stands closed on behalf of all the accused person.
10. The charge is given to all the accused that in pursuance of the criminal conspiracy on or before 18.09.2013 at E-369, Jahangir Puri, SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 7 of 174 Delhi or elsewhere forged the customer application form by impersonating as Manoj in order to deceive/cheat the retailer of the mobile shop and took the mobile connection in the name of accused Mukesh Kumar Sharma and thereby committed offence under Section 419/468 r/w Section 120B IPC. Further on 18.09.2013 at the same address all the accused used the forged documents as genuine which is customer application form and accompanying documents knowing the same to be false document and thereby committed offence under Section 471 r/w Section 120B IPC.
11. The necessary ingredients of Section 467, 468 and 471 IPC are reproduced hereasunder:
In Application u/Sec. 482 No. -17011 of 2008 titled Raghu Nath Singh & Others vs State of U.P. & Another from Hon'ble High Court of Judicature at Allahabad dated 21.1.2016 it was laid down that:
Applicants have been charge-sheeted under sections 420, 467, 468, 471 IPC. This Court has to examine whether ingredients of the aforesaid sections are available or not. Submission of learned counsel for the applicants is that allegations levelled against the applicants reveals two sets of allegations. First, subsequent vendors sold the property to subsequent vendees despite knowledge of earlier sale and second, that applicant nos. 4 and 5 being attesting witnesses of the subsequent sale-deed knowingly and deliberately acted as attesting witnesses. Whether these allegations and available evidence would made out a case under sections 420, 467, 468, 471 IPC is to be seen.
Sections 467, 468, 471 IPC.
Forgery is sine-qua-non of offences under sections 467, 468 and 471 IPC. Preparation of false document or false electronic record or part thereof is condition precedent for offence of forgery. Making of false document is defined under section 464 IPC. The said section 464 demonstrates that a person is said to have made false document if;
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 8 of 174(a) he executed a document claiming to be someone else or authorized by someone else; or
(b) he altered and tempered a document; or
(c) he obtained a document by practicing deception or from a person not in control of his faculties.
The basic ingredients of forgery are (1) the making of a false document or part of it and (2) such making should be with such intention as is specified in the section, viz,
(a) to cause damage or infringe to
(i) the public, or
(ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express or implied contract; or
(e) to commit fraud or that fraud may be committed.
Coming back to the facts of the present case, it is apparent that subsequent vendors sold their property to applicants Raghu Nath Singh, Salim Akhtar and Amir Ahmad. Subsequent vendor did not impersonate or play deception on the complainant or altered or tempered any document or played any deception on the complainant. There is no allegation on record much less evidence that execution of sale-deed by subsequent vendor in favour of applicant nos. 1 to 3 involved forgery of documents. Law is very simple even if a person executes a document transferring property, disclosing such property as his own, it can not be termed as forgery within the meaning of Section 463 IPC. Subsequent vendor and purchasers did not impersonate anybody. Subsequent vendors were selling property claiming ownership to applicant nos. 1 to 3. Even if any property is sold by a person claiming ownership, which is not his, without impersonating or falsely claiming that he has been authorized by someone else, the execution of such document can not be termed as false document in terms of Section 464 IPC. In such situations, there is no question of forgery as contemplated under section 463 IPC. If offence of forgery is not made out then, offences under sections 467, 468 and 471 IPC can not be sustained for the simple reason that forgery is an essential part of all the offences under aforesaid sections without which provisions of sections 467, 468, 471 IPC would not be attracted.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 9 of 174Sections 420 IPC To constitute an offence under section 420 IPC, the allegations must disclose ingredients of cheating as defined under Section 415 IPC. Section 415 talks of fraudulent or dishonest inducement to the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces a person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived. Meaning thereby that there must be not only be cheating but accused should also have been dishonestly induced the person deceived to deliver any property to any person or to make alter or or destroy wholly or in part a valuable security or anything signed or sealed which is capable of being converted into a valuable property. Valuable security is defined under section-30 IPC. No other meaning can be attached to this definition.
Hon'ble Apex Court in the case of Mohammed Ibrahim and others Vs State of Bihar and another reported in (2009) 8 SCC 751 in paragraph nos. 18 & 19 has held as under:
"18. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under Section 420 IPC, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived,
(i) to deliver any property to any person,
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."
12. Further the necessary ingredients of Section 120B IPC were laid down in Ram Sharan Chaturvedi Vs. State of M.P. SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 10 of 174
12. The relevant citation under Section 120B IPC is reproduced hereasunder:
In Criminal Appeal No. 1066 of 2010; August 25, 2022 Ram Sharan Chaturvedi versus The State of Madhya Pradesh from Hob'ble Supreme Court of India has laid down as under:
22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-2. In the decision of State of Kerala v.
P. Sugathan and Anr.2, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:
"12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ...A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy...
13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..." (emphasis supplied)
23. The charge of conspiracy alleged by the prosecution against the Appellant must evidence explicit acts or conduct on his part, manifesting conscious and apparent concurrence of a common design with A-1 and A-2. Iof the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27)" (emphasis supplied) SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 11 of 174
24. In accepting the story of the prosecution, the Trial Court, as well as the High Court, proceeded on the basis of mere suspicion against the Appellant, which is precisely what this Court in Tanviben Pankajkumar Divetia v. State of Gujarat, had cautioned against:
"45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It haof the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27)"
(emphasis supplied)
25. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the majority opinion of Ram Narayan Popli v. CBI4 , this Court had held:
"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
26. In view of the clear enunciation of law on the criminal SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 12 of 174 conspiracy by this Court, we find that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the Appellant and A-1 and A-2. There is no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations, or the conduct of the Appellant. The evidence is shorn of even a passive acknowledgment of conspiracy of the Appellant alone heralding a clear and conscientious participation of the Appellant in the conspiracy. As noted above, this Court has cautioned against replacing mere suspicion with the legal requirement of proof of agreement.
27. For the reasons stated above we are of the opinion that the prosecution failed to establish the circumstances in which the Appellant, being the custodian of only one set of the keys for the dual lock system functional in the Bank, could alone be made responsible for providing access to the strong room and the safe in the Bank. We are also of the clear opinion that the prosecution failed to establish the existence of any agreement between the Appellant, A-1 and A-2, which is quintessential for a charge under Section 120B of the IPC. In the absence of such an agreement, even by inference through circumstantial evidence, the Appellant is entitled to be acquitted of the charge of criminal conspiracy.n State (NCT of Delhi) v. Navjot Sandhu, this Court held:
"101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution." (emphasis supplied)
13. PW-2 Sh. Manoj has deposed that he is working as Guard in a private security company. On 23.09.2013 he had informed the police during inquiry from him that mobile no. 8744806631 does not belong to him as he had never purchased and used it. PW-2 had shown his voter ID card to the police. PW-2 has deposed that he had given photocopy of his voter ID card to accused Gautam Jain with whom he had worked earlier SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 13 of 174 in some BPO. Accused Gautam Jain is correctly identified by PW-2 before the Court. It is further deposed that in the year 2008-2009 PW-2 was working as Collection Agent in a BPO where attested photocopy of his documents were asked to be deposited. PW-2 had given documents of his educational qualifications, address proof, ration card, voter ID card and one form having photograph to the accused Gautam Jain working there after getting the same attested from SDO. PW-2 used to do field duties in the BPO. He has deposed that accused Gautam Jain has used his identity for the purpose for getting mobile phone connection. The consumer application form is shown to the PW-2 in respect of above mobile phone in which the witness PW-2 has identified his photograph correctly at point X. PW-2 has also identified his voter ID card as Ex.PX-1. It is deposed by PW-2 that the customer application form does not bear his signature at point Y and his signatures are forged. PW-2 had helped the police in apprehending the accused Gautam Jain. PW-2 had made a mobile phone call to accused Gautam Jain and came to know that accused Gautam Jain was near GTK depot where PW-2 reached with the police. At the instance of PW-2 the accused Gautam Jain was apprehended vide arrest memo Ex.PW2/A bearing signature of PW-2 at point A.
14. PW-4/Sh. Jai Prakash has deposed that in the year 2013 he was working as Salesman in Aditya Enterprises who had dealership of Idea Cellular company in Derawal Nagar. PW-4 used to supply recharge coupon and SIM card of Idea company in the region of Burari. On
28.09.2013 the police inquired regarding delivery of SIM card bearing connection no. 8744806631 to one shop M/s. Dimple Telecom. PW-4 had SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 14 of 174 confirmed the delivery of the SIM to M/s. Dimple Telecom.
15. PW-5 Sh. Bijender Saini has deposed that in the year 2013 he was working with Aditya Enterprises. His duty was to collect customer application form from the shops which were deposited with the shopkeepers/shop by the customers after having purchased SIM cards. After collection of the customer application form he had deposited them at Aditya Enterprises. The CAF was in the name of Manoj and it was filled by PW-5 which already had signature of the customer with alternative number of the customer. PW-5 had stamp of the shopkeeper from where it was sold which is in name of Dimple Telecom. The CAF form was accompanied by one photocopy of voter ID card in the name of Manoj and the said voter ID card already had signature in the name of Manoj. The CAF form is Ex.PW5/A. The voter ID proof is Ex.PX-1. It is suggested to PW-5 by ld. Counsel for accused no. 1 that the form was filled by PW-5 in the year 2011 which is denied by PW-5 in that he was not working in the year 2011. Two or three days before the call of police PW-5 had received message to collect CAF form from M/s. Dimple Enterprises in which PW-5 has filled the dates. It is further deposed in cross-examination that there is no system of delivering SIM cards on footpath. It is deposed that the form was filled by PW-5 at the shop of M/s. Dimple Telecom at the request of the shopkeeper. PW-5 used to receive message of activation of the mobile phone and the mobile phone was provided to him by the distributor.
16. PW-6 Ms. Raj Dhingra mother of the deceased has deposed that about 5:15 PM she had received a call on her mobile no. 9718703685 SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 15 of 174 from mobile no. 8744806631 asking for ransom. The caller had introduced himself as Khurshid. She had again received telephone call on her mobile regarding ransom and informed her husband about receipt of call of ransom when her husband had returned from police station. Second call was attended by her daughter Ms. Gurpreet Kaur @ Mado. PW-6 had overheard the voice on the mobile phone when the caller was saying that PW-6 and her family had gathered the crowd who should stop the same otherwise the accused will not call. When Ms. Gurpreet Kaur asked the accused to arrange the talk with the abducted child Jatin Dhingra aged about 13 years then the caller had disconnected the call. The third phone call was received by Ms. Simran who is daughter-in-law of sister of PW-6. The caller had asked Ms. Simran to close the drama and arrange Rs.40 lakhs otherwise they will kill the abducted child Jatin Dhingra. PW-6 was confronted by ld. Counsel for accused no. 2/Sandeep Kumar S/o Sh. Rattan Singh that it is recorded in her statement under Section 161 Cr. P.C. Ex.PW6/DA portion A to A that she had stated to IO that "मुझे फिरौती माँगने वालों ने, अपना नाम, पता और जानकारी नहीं दी है ". PW-6 has denied so stated to the IO SI Rajesh Kumar and it is further deposed that she had received call at 5:30 PM. It is admitted as correct that name of Khurshid was not told by her in her statement dated 21.09.2013. PW-6 does not remember whether in her statement dated 21.09.2013 under Section 161 Cr. P.C she had stated that in the first telephone call the caller had said " अल्लाह कसम खुर्शीद बोल रहा हूँ" and she was confronted with Ex.PW6/DA where this fact is not mentioned. PW-6 further does not remember in cross-examination dated 17.08.2015 at page 3 if she had stated on 21.09.2013 under Section 161 Cr. P.C. to the police that the second call was attended by her daughter Ms. Gurpreet SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 16 of 174 Kaur @ Mado and caller was saying that they had gathered the crowd which be stopped otherwise the caller will not call or that her daughter was asked to arrange a talk with Master Jatin Dhingra. PW-6 further does not remember about demand of Rs.40 lakh from the caller in the third call received by Ms. Simran or that the caller has asked to close the drama failing which they will kill Master Jatin Dhingra. The above facts are also not recorded in Ex.PW6/DA. PW-6 has deposed that mobile no. 9718703685 belongs to her and the service provider is Idea Cellular Company. It was a prepaid connection and the SIM was used in Samsung handset.
17. PW-7 is Sh. Aditya Bhatia who was distributor of Idea Cellular Limited in the year 2013. On 19.12.2013 he had given the delivery challan of the SIM card used vide seizure memo Ex.PW7/A and the copy of delivery challan is Mark PW7/1. He had received 1868 SIM cards from Idea Cellular Company and delivered them to different shopkeepers through their sales executives. One among the said SIM cards was used in this case. It is deposed in cross-examination that document Mark PW7/1 is computer generated which does not bear signature and it does not bear stamp of Idea Cellular Company. SIM cards were always given in packed condition. It is admitted as correct that if the SIM card was packed on 30.08.2013 then it cannot be delivered through a challan invoice dated 09.06.2013. The serial number of SIM contains 20 digits.
18. PW-9 Ms. Simran Kaur has deposed that she had visited the house of Smt. Raj Dhingra/PW-6 one day prior to the incident as PW-6 is SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 17 of 174 suffering from dengue and PW-9 is mausi of husband of PW-6. On 21.09.2013 a telephone call was received on the mobile phone of PW-6 last two digits of which were bearing no. 31 and ransom was demanded for a sum of Rs.40 lakhs. First call was heard by PW-6 and another call was heard by daughter of PW-6 Ms. Gurpreet/PW-10. Threat was given to kill the child on failure to give the ransom. She remained in the house subsequently for 2-3 days. The caller had stated to close the drama failing which they will kill Master Jatin Dhingra.
19. PW-10 Ms. Gurpreet Kaur has deposed that on 21.09.2013 in the evening a call was received on mobile phone of her mother/PW-6 in which the caller had told that he has kidnapped Master Jatin Dhingra and ransom was demanded. PW-10 had attended the second call in which the caller had asked that you have accumulated the whole locality and he will not call back again. When PW-10 had asked to allow her to have a talk with her brother Master Jatin Dhingra then the caller did not allow it. The third call from the kidnapper was received by sister-in-law of PW-10 who has deposed as PW-9. The caller had asked PW-9 to close the drama and to keep quiet and also to arrange Rs.40 lakhs otherwise they will kill the child.
20. PW-12 Sh. Shyam Sunder @ Sunny has deposed that in the year 2013 he was working in the shop of Sh. Harish Kumar in the name and style of Dimple Telecom. On 17.09.2013 he had sold a SIM card to a person who had produced documents in the name of Manoj. ID proof and photograph was provided. The PW-12 has correctly identified the accused Mukesh Kumar as the person who had came to purchase the SIM SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 18 of 174 card. During cross-examination by ld. APP it is admitted as correct by PW-12 on 22.09.2013 that he had confirmed to police that the SIM was sold by him on the CAF shown by the police. PW-12 has turned hostile to the fact having stated to the police in the statement under Section 161 Cr. P.C. that the photograph and the face of accused Mukesh Kumar did not match with each other who came to purchase the SIM whereas it is recorded at portion A to A in statement Mark PW12/1. It is admitted as correct by PW-1 that he had asked accused Mukesh Kumar for signature on the form on which accused Mukesh Kumar had replied to get the signature done from Manoj. After about half an hour accused Mukesh Kumar returned with the signature and handed over signed form to PW-12. The details in the form were filled up by another salesman. PW-12 has mentioned alternate number on the form. He had identified accused Mukesh Kumar at the police station on 27.09.2013 to whom the SIM card was sold. The number of mobile phone was 8744806631.
20.1 In cross-examination it is deposed by PW-12 that the shop of Dimple Telecom was situated at Takia Chowk, Burari. The name of salesman remembered by PW-12 who had filled the CAF form is Gaurav. The owner Harish was present at the shop at the time of issuance of CAF form and SIM card. He did not verify the alternate number added by accused Mukesh Kumar. No other person was working at the shop at the time of issuance of the SIM card in the case except PW-12 and the owner Harish. PW-12 had studied upto 10th class. There was no such direction to issue SIM card without seeing the original ID proof. It is admitted as correct that the mobile connection is activated only after physical verification of the documents by the company. It is denied that prepaid SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 19 of 174 SIM card are issued after due physical verification. Such procedure is adopted only in postpaid connection.
21. PW-14 Sh. Balwan Singh, Div. Engineer MTNL, Narela has deposed that Manoj Kumar was working as Generator Operator at Khera Khurd Exchange whose photocopy of ID was attested by him on 16.01.2009 alongwith other documents as he knew him. He had attested the documents after seeing the original. Such attestation was confirmed by him to the IO. Manoj Kumar did not disclose the detail of job for which he got the documents attested nor PW-14 had asked about it. The documents attested are Ex.PW14/A to Ex.PW14/D. He has correctly identified the photograph at point X of Manoj Kumar in CAF form Ex.PW5/A and signature are identified at point Y.
22. Ct. Bani Ram/PW-18 has deposed that custody of accused Sandeep Kumar @ Sunny was handed over to him and Ct. Paramjit. On 26.09.2013 PW-18 had joined the investigation again and from the shop of accused Sandeep Kumar @ Sunny among other article one SIM card was recovered which were seized vide memo Ex.PW18/B. He does not remember the time when they had reached house of accused Sandeep Kumar @ Sunny. Again said it was 11/11:30 AM. He does not know the number of storeys of the house of accused Sandeep Kumar @ Sunny or who had opened the door of the house or what are left and right side situation of the house or which family members of accused had met them or the number of family members available.
23. PW-19 Sh. Kishor was running a mobile shop in the year 2013 SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 20 of 174 in the name and style of Kishor Communication at main road, Nathupura. On 16.09.2013 around 1:30 PM two boys came to his shop one of which was healthy and another boy was tall. They had asked for mobile phone and SIM card. They were told that PW-19 is selling mobile phone only and not the SIM card. They went away and came back after sometime with a SIM card and asked PW-19 to insert that SIM card in some mobile to check working condition of said SIM card. PW-19 had refused on which they had asked to show some mobile phone. They had chosen some mobile phone of Santosh Company having capacity of dual SIM. The boys offered Rs.600/- in place of asked price of Rs.650/- which PW-19 declined. The boys left the shop again and returned back after 10- 15 minutes and they had purchased the mobile at the price of Rs.650/-. The small boy had told that he runs a shop of chemist and after that he made payment for purchase of mobile. Receipt was issued to him/Sh. Sandeep the smaller boy. He had identified both the boys on asking of police at his shop after few days. The bill book is Ex.PW19/A and carbon copy of bill no. 851 is Ex.PW19/B. On 28.09.2013 PW-19 had identified the accused Sandeep in TIP proceedings who was having shop of chemist, the boy in small height. The boy was identified as the same boy who had purchased the mobile phone from his shop and accused no. 4 Sandeep Kumar @ Sunny is correctly identified by PW-19 before the Court. PW-19 has identified his signatures in TIP proceedings in Ex.PW15/B at point B. The tall boy is correctly identified by PW-19 before the Court who is accused no. 2 Sandeep Kumar.
23.1 It is admitted as correct by PW-19 in cross-examination that bill no. 803 is blank in the bill book and it is explained by PW-19 that it SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 21 of 174 was meant for carbon copy. It is admitted as correct that on 16.09.2013 only one bill was issued. The bill book Ex.PW19/A are not shown in ledger/cash book for the reason that the bill book is meant for sale of items received from Gaffar Market. Bill no. 834 to 848 were issued from another shop in the handwriting of PW-19. He maintain only two bill books. The articles with TIN number are only shown in ledger book and cash book. It is admitted as correct that bill no. 849 is dated 16.09.2013 and bill no. 850 is dated 11.09.2013. He had accompanied the police to the police station alongwith the accused and he had seen the accused properly. He remained at police station around 11 AM till 5:00 PM. In cross-examination it is deposed that the mobile phone Santosh L-11 is a small size phone which mostly comes in black colour. It is admitted as correct that name, parentage and address of accused no. 2 Sandeep Kumar was not mentioned in the bill Ex.PW19/B. Slips are issued on purchase of mobile phone which are received from Gaffar market. The bill book has remained with him till 25.09.2013 and after that he handed over it to the police.
24. PW-23 Ct. Sanjay has deposed that on 26.09.2013 accused no. 4 Sandeep @ Sunny had taken the police to his house at K-Block, Jahangirpuri and got recovered two keys of his shop hanged on a nail possession of which was taken by the IO. One pouch of SIM card of Idea was also recovered from the shop of accused Sandeep @ Sunny which was seized by the IO. The Idea SIM card was seized vide memo Ex.PW23/A bearing signature at point A. The one pouch of Idea SIM card pertaining to mobile phone no. 8744806631 was correctly identified by the witness which was seized from accused no. 4 Sandeep @ Sunny SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 22 of 174 and the pouch of Idea SIM card is Ex.PX-4.
25. PW-28 HC Devender has deposed that on 24.09.2013 he was working as MHC(M) at PS Burari when Insp. Paramjit Singh deposited one sealed parcel with him with the seal of PS which contain 04 mobile phone and one key apart from personal search of the accused. PW-28 had deposited the parcel in the Malkhana vide entry at serial no. 2211/2013 in register no. 19. Relevant entries of which are Ex.PW28/A. In cross- examination it is deposed by PW-28 that he did not check the working order of mobile phone. He did not take signature of Insp. Paramjit Singh in register no. 19 and nor of Ct. Naveen while handing over exhibits to him.
26. PW-29 HC Chander Pal has deposed that on 25.09.2013 IO had called owner of Kishor Communication at the police station. IO had seized receipt book of mobile vide seizure memo Ex.PW29/A which bears signature of PW-29 at point A.
27. PW-32 SI Vishwanath has deposed that on 25.09.2013 he had taken complainant to Tihar Jail for conducting TIP of accused Mukesh Kumar and the accused Mukesh Kumar had refused to participate in TIP. One TIP proceedings of Mukesh Kumar Sharma is Ex.PW15/X1 wherein the refusal of TIP proceedings of accused Mukesh Kumar Sharma without Oath are that his photographs were taken by the police officials at the police station and the said photographs must have been shown by the police to the witness.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 23 of 17428. PW-33 SI Ravi Kumar has deposed that Sh. Manoj had told Insp. Naresh and SI Rajesh in his presence that accused Gautam Jain has used his ID for obtaining the SIM from which the ransom call was made and Sh. Manoj has led the police to the house of Gautam Jain at Jahangirpuri where he was not found. Then Sh. Manoj had taken the police to GTK depot and at the instance of Manoj accused Gautam Jain was apprehended who was standing there. Thereafter PW-33 alongwith Insp. Paramjit, Insp. Naresh of Operation Cell, SI Rajesh and accused Sandeep went to Bengali Colony in gali no. 16 where at the instance of accused Sandeep the accused Mukesh Kumar Sharma was apprehended and at the instance of Sandeep and Mukesh accused no. 4 Sandeep @ Sunny was apprehended opposite Sunny Medicos on the Pepsi road. Accused no. 4 Sandeep @ Sunny was having a black colour bag which was found containing a mobile phone in a polythene and one SIM card of Idea was found in the mobile. The recovered articles were sealed in a parcel. In cross-examination by ld. APP for the State the PW-33 has admitted as correct that mobile phone was recovered in formal search of accused Gautam Jain which was seized vide seizure memo Ex.PW33/B. The mobile phone was produced before the Court in unsealed condition wrapped in polythene which was of make of Samsung and same is Ex.PY-1.
29. In cross-examination it is deposed by PW-33 that the team constituted at PS Burari was comprising of SI Rajesh, HC Pawan and Ct. Rehman. He did not know the name of members of the team from Operation Cell. Two suspects namely Manoj and Sandeep had gone to Operation Cell. They reached at Operation Cell at 12:30 PM. There SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 24 of 174 investigation had continued till 1:00 AM or 2:00 AM the morning of 24.09.2013. Insp. Naresh Kumar had interrogated the suspect Manoj Kumar in presence of PW-33. PW-33 in cross-examination dated 19.02.2019 has deposed that he does not remember whether any article belonging or related to the present case was recovered from the person of accused no. 2 Sandeep Kumar. It is admitted as correct that accused no. 4 Sandeep @ Sunny was apprehended in front of Sunny Medicos at Pepsi road, Burari. No public person was present. He does not remember if PW-19 Kishor was called at Operation Cell as public person.
30. PW-34 Ct. Rajesh Tanwar has deposed that on request of IO Insp. Paramjit voice sample of accused no. 2 Sandeep Kumar was taken in the FSL and cassette/CD were handed over to IO. The sealed parcel containing the voice sample of PW-34, HC Pawan and perhaps of IO were taken which were seized vide memo Ex.PW34/B. PW-34 cannot say whether the voice sample was in CD or cassette.
31. PW-35 HC H. Rahman has deposed that one person Manoj Kumar was apprehended on the basis of ID proof. One accused Sandeep Kumar was apprehended on the basis of suspicion. Sh. Manoj Kumar has disclosed that he had given his document of identity in the year 2009 to one accused Gautam Jain resident of Jahangirpuri. Manoj Kumar took the police team to the house of Gautam Jain where he could not be found. When the police team was returning and reached near GTK DTC depot then on pointing out by Manoj Kumar the accused Gautam Jain was apprehended. Accused Gautam Jain after his apprehension was brought to Operation Cell, Maurice Nagar. Accused Gautam Jain was arrested SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 25 of 174 vide memo Ex.PW2/A and his disclosure statement is Ex.PW35/B. Accused Sandeep Kumar was arrested vide memo Ex.PW35/C whose disclosure statement is Ex.PW35/E. Accused no. 2 Sandeep Kumar led the investigation team to accused Mukesh who was apprehended and arrested vide memo Ex.PW3/B and his personal search is Ex.PW35/F. The disclosure statement of accused Mukesh is Ex.PW35/G. It is deposed that accused no. 4 Sandeep Kumar @ Sunny was apprehended at the instance of accused no. 2 Sandeep Kumar and accused no. 3 Mukesh. Accused no. 4 Sandeep @ Sunny was arrested vide memo Ex.PW3/C and his disclosure statement is Ex.PW35/J. Accused Mukesh Sharma took the raiding party at Dimple Telecom village Burari and he had informed the police that he had purchased the SIM card from Dimple Telecom and thereafter made a ransom call from that number. It is admitted as correct that accused Mukesh on his formal search one mobile phone was recovered from his possession which was seized vide memo Ex.PW35/L. Two mobile phone were recovered from accused no. 4 Sandeep @ Sunny which were sealed vide memo Ex.PW35/M. The bag of accused no. 4 Sandeep @ Sunny was seized vide memo Ex.PW35/N= Mark A. The black colour mobile phone of Samsung company is identified by the witness recovered from accused Gautam Jain which is Ex.PY-1. Another mobile phone seized from accused Mukesh is Ex.PY-3 which is make of black colour Nokia mobile phone. Ex.PY-4 and Ex.PY-5 are two mobile phone seized from accused no. 4 Sandeep @ Sunny. One of which was of make Docomo and another was of make Orion. The brown colour envelope was produced in an unsealed condition. Three mobile phone of make Samsung, Micromax and other touch screen Micromax mobile phone were produced by MHC(M) which were seized from accused SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 26 of 174 Sandeep Kumar vide Ex.PY-6, Ex.PY-7 and Ex.PY-8. The black colour bag seized from accused no. 4 Sandeep Kumar @ Sunny is Ex.PY-9. It is further deposed that on 21.09.2013 the father of the child joined them and remained there for about 30 to 45 minutes.
31.1 In cross-examination dated 23.08.2019 PW-35 has deposed that IO had taken voice sample and specimen signature of Manoj Kumar. He had told IO that Manoj Kumar had given form for training and voter ID card alongwith photograph to Gautam Jain which was confronted to him as it is not recorded in his statement under Section 161 Cr. P.C. from A to A in Ex.PW35/D1. It was by chance when they were returning from house of Gautam Jain and reached near GTK depot then Manoj Kumar had pointed out towards Gautam Jain at about 10:15 AM. At GTK depot they had stayed for about 15 minutes and documents pertaining to arrest of Gautam Jain were prepared in the said period which includes arrest memo. A mobile phone was recovered from the person of Gautam Jain and seizure memo was prepared. In cross-examination it is deposed that at the time of arrest of accused no. 4 Sandeep the shop M/s. Sunny Medicos was open. The disclosure statement of accused no. 4 was recorded at that place and PW-35 had signed it as attesting witness. No public witness was called. One mobile phone was seized in personal search of accused Mukesh Kumar Sharma. The disclosure statement of accused Mukesh Kumar was recorded in presence of PW-35. PW-35 had seen the mobile used in this case in crime. However he does not know the number of mobile.
32. PW-36 has deposed that on 16.12.2013 he had taken 06 sealed SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 27 of 174 parcels alongwith one sample seal to FSL, Rohini and deposited the exhibits under the directions of IO. He has deposed that so long the exhibits remained in his custody and they were not tampered in any manner.
33. PW-37 SI Rajesh Kumar has deposed that he went with his staff to the house of complainant Kishan Lal and met the mother of the deceased namely Ms. Raj Dhingra. Ms. Raj Dhingra had informed PW-37 that she had received a ransom call. He got the ownership of mobile number from which ransom call was received, verified and found that the mobile number is issued in the name of Manoj Kumar. Mr. Manoj Kumar had stated to PW-37 that he is not aware about this connection. In the CAF form address of customer was given of the place Jahangirpuri. Mr. Manoj Kumar has told PW-37 that he had given attested photocopy of ID proof/documents with one photograph to accused Gautam Jain for some job purpose. They were given few years ago when Manoj was working in some BPO and Gautam Jain was also working there. After arrest of accused Mukesh and during investigation PW-37 alongwith complainant and accused no. 1 Gautam Jain, accused no. 4 Sandeep alongwith accused Mukesh left for PS Burari and on the way accused Mukesh Kumar had pointed out the shop from where he had purchased the SIM card.
33.1 On 24.09.2013 the police raiding team with accused person have went to the house of Gautam Jain where accused Gautam Jain recovered the photocopies of documents of Manoj from his house which were seized vide memo Ex.PW37/A. The photocopy so recovered are SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 28 of 174 collectively marked as Mark PW37/1. Thereafter accused Sandeep Kumar got recovered the Wagon R car in which the abducted child was carried which was seized vide memo Ex.PW37/B. While returning to PS the accused no. 4 Sandeep had identified the shop from where he had purchased the mobile set. PW-37 has correctly identified the black colour mobile phone of Samsung company recovered from accused Gautam Jain which is Ex.PY-1. 03 mobile phones of make Samsung, Micromax and one touch screen Micromax were recovered from accused Sandeep vide Ex.PY-6, Ex.PY-7 and Ex.PY-8. PW-37 in cross-examination dated 05.07.2017 was not able to indicate the seizure memo in respect of documents received from the service provider pertaining to mobile phone subscription. It is admitted as correct that Manoj was with PW-37 on 22.09.2013 when CAF was received. PW-37 did not collect any document indicating authorization or agency in SIM card sale from Shyam Sunder @ Sunny. It is admitted as correct that Shyam Sunder was employee of M/s. Dimple Telecom. It is admitted as correct that Mr. Harish was owner of the shop who was doing only mobile repairing job. PW-37 does not remember if he had obtained CDR and CAF of the relevant period in respect of phone no. 9718703685. PW-37 cannot tell who was subscriber of the phone on which ransom call was received. He also cannot tell whether the subscription was prepaid or postpaid connection. It is deposed by PW-37 that the subscription detail of phone which was used to make ransom call was received on 21.09.2013 and the CAF was probably received on 22.09.2013. He had received investigation on 21.09.2013 at about 7 PM and he cannot tell when he had sought details of the said phone number on 21.09.2013. It is deposed that CAF in the form of electronic image was received prior to obtaining SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 29 of 174 original hard copy. The original hard copy of CAF is Ex.PW5/A which was already received by earlier IO. It is admitted as correct by PW-37 in cross-examination dated 06.07.2017 that it is not mentioned by him in DD No. 13A that he had left PS alongwith Manoj Kumar, Manoj Pal and Ajit Singh on 22.09.2013.
33.2 It is deposed by PW-37 in cross-examination dated 07.07.2017 that the number from which ransom call was made was not put under surveillance by him however call details of number and ownership details were taken that in whose name the SIM card was registered. He does not remember that who gave instruction to service provider to provide ownership details. It is deposed that on 22.09.2013 the CAF details were collected by PW-37 through electronic media by E- mail. He does not remember who sent the E-mail but it was service provider. On 23.09.2013 Manoj had made a call to Gautam Jain from a mobile phone. It is deposed by PW-37 that accused Gautam Jain was apprehended on pointing out of Manoj but no pointing out memo was prepared. In cross-examination dated 07.07.2017 (after lunch time) PW-37 had recorded the confession of accused Gautam Jain at about 2:15 PM to 2:30 PM. The arrest memo and personal search memo were prepared at 3:00 PM. Certain documents were recovered from accused Gautam Jain. PW-37 did not investigate the SDO who had attested the documents of Manoj.
34. PW-38 had sent one sealed parcel alongwith sample seal to FSL, Rohini through Ct. Naveen on 01.11.2013. The copy of RC is Ex.PW38/A and the handing over memo of such deposit is Ex.PW38/B. SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 30 of 174 Similarly another parcel was sent to FSL, Rohini vide Ex.PW38/C and the memo of receipt of parcel is Ex.PW38/D which were also sent on 01.11.2013. On 16.12.2013 PW-38 had sent six parcels with sample seal to FSL, Rohini and the copy of RC is Ex.PW38/E and memo of receipt of parcel is Ex.PW38/F.
35. PW-39 ASI Pawan Kumar has joined investigation on 23.09.2013 alongwith SI Ravi and Ct. H. Rehman. One Manoj Kumar and accused Sandeep Kumar were available with IO and they together went to Operation Cell, Maurice Nagar. Insp. Naresh and SI Rajesh had interrogated Manoj who told them that he had given his photographs and documents of his identity to accused Gautam Jain then they went in search of accused Gautam Jain. Accused Gautam Jain was apprehended at GTK depot and the police team had returned to Operation Cell, Maurice Nagar. The accused no. 1 Gautam Jain was arrested vide memo Ex.PW2/A and accused no. 2 Sandeep Kumar was arrested vide memo Ex.PW35/C. The disclosure statement of accused were taken and by that time it was confirmed that the murder of child had taken place and the investigation was transferred to Insp. Paramjit. After some time the raiding team had returned back to Operation Cell and accused no. 4 Sandeep and accused no. 3 Mukesh were brought in Operation Cell and arrested. The accused Sandeep and accused Mukesh Kumar led IO and PW-39 to a drain near Nanglipuna and both of them had pointed out the place where they had thrown the dead body of the child. One dead body was noticed by the accused person lying in the drain facing downwards. Then they had returned to Burari village where accused Mukesh had pointed out a shop from where he had purchased the SIM. The SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 31 of 174 complainant alongwith his brother-in-law were also present during investigation. On 24.09.2013 accused no. 2 Sandeep and accused no. 4 Sandeep @ Sunny led police party to Nathupura and pointed out towards a shop from where they had purchased the mobile phone. Accused no. 2 Sandeep Kumar on 27.09.2013 was taken to FSL, Rohini where his voice sample is taken. Voice sample of PW-39, IO Insp. Parmajit and of Ct. Rajesh was also taken at FSL, Rohini and the seizure memo of such voice sample cassettes is Ex.PW34/B. In post lunch cross-examination PW-39 on 08.09.2017 does not know the name of owner of the shop Krishna Communication, he does not know number of the shop adjacent to the said shop, he does not know from whom the inquiries were made by the IO, if any public witness had signed arrest memo of accused no. 4 Sandeep or when accused no. 4 Sandeep and accused no. 3 Mukesh were brought. Documents of arrest of the said accused were not prepared in his presence.
35.1 PW-39 does not remember time of interrogation of Manoj nor does he know when Manoj had joined the investigation. However he had seen Manoj participating in investigation on 23.09.2013. It is deposed by PW-39 that he remained associated with the investigation most of the time on 23.09.2013 and 24.09.2013. No writing work was done at GTK depot. He does not remember any document in the name of Gautam Jain was seized. It is admitted as correct that Section 302 IPC in the matter was added later on. The accused no. 2 Sandeep was arrested in the afternoon but not in presence of PW-39. It is deposed in cross- examination dated 13.12.2017 at page 3 by PW-39 that the voice sample was taken through an equipment which has a system of tape recording SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 32 of 174 and a mike. He does not remember if the cassettes containing voice sample was sealed with the seal of FSL. It is deposed that the seal of PS was given to PW-39 at the office of FSL after use which he returned to IO after deposition of case property with MHC(M). The site plan was prepared in presence of PW-39 where from the dead body was recovered. He cannot tell at whose instance the site plan was prepared. The complainant had identified the dead body in presence of PW-39 and brother-in-law of complainant.
36. PW-40 had prepared scaled site plan Ex.PW40/A of the spot near Royal Garden Farm House which was prepared at the instance of IO /Insp. Paramjit Singh. The rough notes of preparation of scaled site plan were destroyed after preparation of site plan.
37. PW-41 Amarnath Singh Nodal Officer of Idea Cellular Limited had given CDR of mobile no. 8744806631 for the period 18.09.2013 to 22.09.2013 to the IO which is Ex.PW41/A. He also handed over CAF to the IO. As per record the mobile connection was issued in the name of Mr. Manoj Kumar. CAF with ID proof is mark Ex.PW41/1. The original CAF could not be traced because on 22.09.2017 a fire had taken place in the office of the company around 12:12 PM and the said record was burnt in the incident. Copy of complaint to the police regarding the said fire is Ex.PW41/B. Photocopy was brought and original was not brought which was objected by the ld. Counsel for the accused. The cell ID chart was also given to the IO vide Ex.PW41/C (43 pages) and the certificate under Section 65B in above respect is Ex.PW41/D. SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 33 of 174 37.1 He had given certified copy of CAF form. It is deposed that customer had visited the retailer and filled CAF on 18.09.2013. The application form was received by the distributor on the same day and in the warehouse on 18.09.2013. The retailer of mobile connection was Dimple Telecom. It is admitted as correct that date of retrieving the cell ID chart Ex.PW41/C is not mentioned in it. The documents were handed over to the police on 22.09.2013. It is admitted as correct that location of the SIM card was shown only when the SIM card is inserted in the mobile.
37.2 PW-41 in cross-examination dated 20.05.2022 has proved letter Ex.PW41/E which was written by Insp. Paramjit Singh/IO for providing voice clipping record of the mobile no. 8744806631 at the time of activation and it was provided in CD and letter in respect of which is Ex.PW41/F. The certificate under Section 65B of Indian Evidence Act Ex.PW41/G brought by PW-41 as the voice clipping was retrieved from a computer system using a CD writer from Idea Cellular Ltd. and presently M/s. Vodafone Idea Ltd. The voice clipping was password protected and accessible to PW-41 only. The CD is proved on record as MO-1. In cross- examination it is deposed as correct that in Ex.PW41/F vide which the voice recorded CD was received does not bear signature of police officer receiving the CD. Seal on CD was not affixed in his presence. At the time of handing over CD PW-41 did not furnish certificate under Section 65B of Indian Evidence Act. He was Nodal Officer in Delhi from 2012 to 2015 for DOT and Law Enforcement Agency. The CDR format was made in accordance with DOT guidelines and the dates are in ascending order SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 34 of 174 mentioning the latest date in the beginning. The seizure memo of original CAF dated 05.12.2013 bears signature of PW-41 at point A and the document is Ex.PW41/DX. The CAF form and voter ID card got attached with the seizure memo which are photocopy Mark PW41/DX1. It is admitted as correct that CDR does not bear the server number and the CDR Ex.PW41/A does not have identification of server from where it was attracted. It is deposed by PW-41 that the mobile number was allotted to Delhi circle. He did not prepare Hindi transcript of the clip.
38. PW-42 Ct. Ajit Singh on 01.10.2013 delivered a letter to Idea Cellular company under instructions of IO Insp. Paramjit Singh and the officer at Idea Cellular company had handed back to PW-42 one compact disc alongwith the letter which he handed back over to IO. The said CD in envelope was sealed by the IO with the seal PS and seized vide memo Ex.PW42/A. As long as CD remained in custody of PW-42 it was intact and not tampered with. PW-42 does not know the name and designation of officer of Idea Cellular company to whom he had handed over the authority letter nor he does he remember that certificate under Section 65B of Indian Evidence Act was also given with the CD as it was in envelope. However it is deposed that it was Nodal Officer. It is admitted as correct that CD is not shown to him in the Court. However name of Idea Cellular company was written on the CD.
39. PW-43 is Sh. V. Lakshmi Narasimhan, Assistant Director, FSL, Delhi has deposed that two sealed parcel were received at FSL, Rohini on 01.11.2013 which were sent by SHO PS Burari through Ct. Naveen. Parcel 1 had contained one compact disc with having one audio SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 35 of 174 file which is marked as Ex.Q1. Another parcel containing one audio cassette which was having specimen voice sample is marked as Ex.S1. After examination on the basis of auditory and spectrography analysis PW-43 found that Ex.Q1 was similar to Ex.S1 and the possible voice was of the same person i.e. accused no. 2 Sh. Sandeep Kumar. Her report in this regard is Ex.PW43/A. In cross-examination it is admitted as correct that FSL Rohini lab was not recognised in the year 2014 or notified by Government under Section 79A of Information Technology Act, 2000. It is deposed that now it is recognised. Both the parcel were sealed with the seal of PS. It is deposed that in the process of examination of electronic data they always examine aspect whether the data is tampered with or not though it is not mentioned in report Ex.PW43/A. 39.1 In FSL report Ex.PW43/A the result of examination is given that the recorded speech samples for speaker marked Ex.S1 and the subsequent acoustic analysis of speech samples by using computerized speech lab revealed that voice exhibits of speaker marked Q1 is similar to marked Ex.S1 in respect of there acoustic cues and other linguistic and phonetic feature. It is recorded that Ex.1 is CD of Moserbaer which contain one audio file no. 6181593.mp3 and it is marked as Ex.Q1. Opinion is given that the voice exhibit of speaker marked Ex.Q1 and Ex.S1 are possible voice of same person i.e. Sandeep Kumar/accused no.
2.
40. PW-44 Sh. Anurag Sharma, Assistant Director Regional FSL, Delhi has deposed that on 10.01.2014 the questioned document Q1, Q2 and Q3 alongwith standard documents A1 and A2 of Manoj Kumar and SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 36 of 174 S1 to S10 of one Mukesh Kumar Sharma, S11 to S20 of one Sandeep Kumar/accused no. 2 were received. On examination of questioned documents and standard documents the opinion is given that the person who wrote blue enclosed signatures stamped and marked S11 to S20/Mukesh Kumar Sharma had also wrote the red enclosed signatures similarly stamped and marked Q2 and Q3. The second opinion is given that it has not been possible to express any opinion on red enclosed questioned signature stamped and marked Q1. The report is Ex.PW44/A bears signatures of PW-44 at point A and B. 40.1 In cross-examination it is deposed that the examined documents have not been shown to PW-44 in the Court. It is admitted as correct he had not supplied the enlarged photographs to the IO. After looking into documents PW-44 has deposed that documents A1 and A2 are in English language. It is admitted as correct that word Manoj marked as Q2 is written in Hindi with blue ink and S1 to S10 of Manoj Kumar are also in Hindi with blue ink. It is admitted as correct that PW-44 did not carry ink analysis in this case as it was not asked. It is admitted as correct that study of line quality is very essential in case of examination of documents. PW-44 did not find dissimilarity in Q2 and Q3 with reference to S11 to S20. It is deposed that once any signature fixed with any person then it is understood that these signatures are not written by any other person. It is deposed that the manner of head stroke of Q2 and Q3 on the one hand and S11 to S20 on the other hand are similar. It is admitted as correct that the worksheet and juxtapose chart are not annexed with the report is Ex.PW44/A. SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 37 of 174 40.2 In the report Ex. PW44/A Q1 and Q2 on customer application form/CAF of Idea Cellular Ltd. and Q3 is on photocopy of voter ID card. The A1 and A2 blue enclosed signatures are of Manoj Kumar, S1 to S10 are of Mukesh Kumar Sharma and S11 to S20 are of accused no. 2 Sandeep Kumar. The documents were examined with scientific instruments which are magnifying glasses, stereo microscope, Docubox Dragon etc. under different lighting condition. It is reported that Q1 and Q3 are written freely, show natural variation and the standard S11 to S20 of Mukesh Kumar Sharma/accused no. 3 are also free in nature and show natural variation. On comparison similarities are observed in execution of various characters such as slightly curved initial vertical staff of Hindi letter and blind eyelit at its foot which forms the diagonal stroke moving upwards. Other similarities are described in the report and opinion is given that the Q2 and Q3 and S11 to S20 are written by the same person/accused no. 2 Sandeep and the signatures in blue stamped and marked are similar the signature stamped and marked in Q2 and Q3. Further opinion is given that it is not possible to express opinion on the red enclosed questioned signature stamped and marked Q1 on the basis of materials at hand.
41. PW-45 Dr. Kanak Lata Verma, Assistant Director, RFSL, Chankyapuri, Delhi has deposed that on 01.11.2013 one sealed wooden box with one sealed parcel alongwith specimen seals were received in FSL Rohini through Ct. Naveen. The seals were found intact and matched with specimen seals. The sealed wooden box containing viscera of Jatin Dhingra in parcel 1 had contained exhibits 1-A, 1-B and 1-C. The parcel 2 was sealed with the seal of PS which contained one sealed SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 38 of 174 plastic container in which Ex.2 was found inside black coloured small bowl. On chemical microscopic examination, TLC and GC-MS the Ex.2 was found containing Alprazolam (Benzodiazepine group of drugs). Metallic poison, Ethyl and Methyl alcohol, Cyanide Phosphide, Alkaloids, Barbiturates, Tranquilizers, Benzodiazepines and Pesticides could not be detected in Ex.1A, Ex.1B and Ex.1C. The detailed report of PW-45 is Ex.PW45/A. No cross-examination was done of this witness on behalf of all the accused.
42. PW-46 ACP Naresh Kumar was participating in investigation on direction of senior officers. On 22.09.2013 he met the SHO PS Burari and thereafter met parents of the child. Obtained mobile number of the caller of the ransom call from the mother of the child and sent requisition of CAF and CDR through E-mail. On 23.09.2013 Sh. Manoj Kumar has disclosed to SI Rajesh with whom PW-46 was present that he had given the identity proof to one person namely Gautam Jain in the year 2009 which were given in connection with some interview in one company. PW-46 had constituted a team member of which are PW-46, SI Sukhbir, SI Ravinder, HC Yogender, HC Mahesh, HC Rajeev, HC Ismail, Ct. Sudhir and Ct. Amit. Mr. Manoj was sent to house of Gautam Jain to check his availability. Mr. Manoj informed that Gautam Jain was not available in the house however he got mobile number of Gautam Jain from wife of Gautam Jain. PW-46 called accused Gautam Jain on mobile phone and made Mr. Manoj to talk with Gautam Jain on which accused Gautam Jain had disclosed his whereabouts that he is reaching near metro station GT Karnal road. In further examination-in-chief dated 08.11.2021 on pointing out of Mr. Manoj the accused Gautam Jain was apprehended SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 39 of 174 near GTK depot from where he was brought to the office of Operation Cell.
42.1 PW-46 has deposed further in his examination-in-chief dated 08.11.2021 that accused Gautam Jain had disclosed that he had given ID proof of Manoj to his friend Sandeep/accused no. 2 to purchase SIM card on the basis of said ID proof. It was disclosed by Sandeep/accused no. 2 to Gautam Jain during such taking of document that he had plan to kidnap a child of his neighbour for the purpose of ransom. The accused Gautam Jain was arrested vide memo Ex.PW2/A which bears signature of PW-46 at point D. One mobile phone was recovered from accused Gautam Jain used in communicating with co-accused which was seized vide memo Ex.PW33/B. Disclosure of accused Gautam Jain was recorded. Accused Gautam Jain disclosed involvement of accused no. 2 Sandeep and accused no. 2 Sandeep had disclosed involvement of accused Gautam Jain, Mukesh Kumar and Sandeep @ Sunny/accused no.
4. Accused no. 2/Sandeep was arrested vide memo Ex.PW35/C and he had made disclosure that he alongwith accused Mukesh, accused no. 4 Sandeep had kidnapped Jatin Dhingra and murdered him. Three mobile phones were recovered from accused no. 2 Sandeep which were used in interaction with his associates and the said mobile phones were seized vide memo Ex.PW35/A. Two mobile phones were of make Micromax and one of the mobile was of make Samsung company. Accused no. 1 Gautam was left at the Operation Cell. PW-46 handed over investigation to Insp. Paramjeet when PW-3 Kishan Lal, the complainant had joined and accused no. 2 Sandeep and accused no. 1 Gautam were interrogated by him.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 40 of 17442.2 On pointing out by accused no. 2 Sandeep at gali no. 16, Bengali Colony, Sant Nagar, Burari accused Mukesh was apprehended. Accused no. 2 Sandeep and accused Mukesh led the police team led by Insp. Paramjeet to Harit Vihar where accused no. 4 was apprehended in front of Sunny Medicos shop. From accused no. 4 a black colour bag with him was searched in which one mobile phone was found. Two mobile phone were carried by accused no. 4 Sandeep on his person. The phone found in the black bag of accused no. 4 was used to make ransom call which was disclosed by accused person. One mobile phone was recovered from accused Mukesh and key of Wagon R car was recovered from accused no. 2 Sandeep. The accused no. 2 Sandeep and accused Mukesh had taken the child/deceased Jatin Dhingra in drowsy condition in Wagon R car to the drainage Nanglipuna, Delhi where the child was smothered and strangulated and thrown in the drainage. Accused no. 2 Sandeep and accused Mukesh led the police team to the drainage where the body was thrown and pointed out towards the body facing downward lying in the drainage. The crime team and photographer was called. The body was covered in mud which was cleaned with water which was taken out by the diver called by the police at the spot. The black colour bag recovered from accused no. 4 Sandeep is correctly identified by the witness as Ex.PY-9 on which 'Faster' is written. The mobile phone which was recovered in black colour bag is a red and black colour mobile phone of make 'Santosh'. The mobile phone has one battery and SIM card of Idea bearing no. 89910434061381973942H2. The mobile phone and the SIM card with battery are correctly identified by the witness recovered from accused no. 4 Sandeep from his black colour bag which is SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 41 of 174 Ex.PY-10(colly).
42.3 PW-46 in cross-examination dated 10.03.2022 does not know about the source of water coming in the drainage where the body was recovered and it was not a Pucca drainage. There is no cremation ground near the drainage. It is deposed that the police team had reached the drainage at 8:15 PM and took out the dead body at 8:30 PM. PW-46 left the place of drainage with special staff around 9:15 PM. In cross- examination dated 25.03.2022 it is admitted as correct in pointing out memo Ex.PW3/G signature of accused no. 2 are not there. It is deposed that the distance of Operation Cell, Maurice Nagar and the police station is about 13-14 km. Police officials from PS Swaroop Nagar were called. Public person were not there and person from Royal Farm House as witness were not called. The dead body was bearing black and blue colour T-shirt. The dead body was swelled, eyes were protruding out and tongue was outside the mouth. It is deposed by PW-46 that personal search memo of accused no. 4 which is Ex.PW35/H does not bear his signature at point X. Nor does the disclosure statement Ex.PW35/J of accused no. 4 bears his signature. However it is deposed that they were written in his presence. It is admitted as correct that at PS Burari they did not see the black bag recovered from accused no. 4. Site plan was prepared by Insp. Paramjeet at 8:45 PM near the drainage.
42.4 In cross-examination dated 25.03.2022 by ld. Counsel for accused no. 4 Sandeep it is deposed by PW-46 Sh. Naresh Kumar that the disclosure statement of accused no. 1 Gautam Jain was recorded in his presence on 23.09.2013. No person by the name of Kishore Kumar was SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 42 of 174 examined by the IO in his presence. PW-46 was present during arrest of accused no. 4 Sandeep. However personal search memo Ex.PW35/H and Ex.PW35/J does not bear his signature. It is deposed that between 12:30 PM to 4:30 PM accused no. 1 Gautam Jain and accused no. 2 Sandeep were arrested whose disclosure statement was recorded at about 3:30 PM to 3:45 PM. Section 302 IPC was added after disclosure statement of accused no. 2 Sandeep at about 4:00 PM. Accused Mukesh was apprehended at about 4:15/4:30 PM. After arrest of accused no. 4 Sandeep and accused no. 3 Mukesh they had returned to Operation cell, Maurice Nagar at about 4:45 PM. The dead body was not highly decomposed but it was swollen. He left the drainage at about 9:00/9:15 PM.
42.5 In cross-examination dated 02.08.2022 of PW-46 ACP Naresh Kumar by ld. Counsel Sh. Michael Peter for accused no. 1 it is deposed by PW-46 that he did not have written order to join the investigation. However on instructions of his ACP he left to join the investigation on 22.09.2013 at about 1:00 PM. It is deposed that he did not put the mobile number on surveillance. He met the mother of child on 22.09.2013 and PW-46 had joined the investigation at 1:00 PM on 22.09.2013. In cross- examination dated 02.08.2022 it is deposed that pointing out memo was not prepared when Manoj pointed out accused Gautam Jain.
43. PW-47 Ms. Poonam Sharma, Assistant Director (Biology) FSL, Delhi has examined Parcel 1 to 6. It is deposed that blood was detected in Ex.1 having 03 cloth pieces having light brown stains and Ex.6 which is gauze cloth piece having brown stains described as blood SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 43 of 174 gauze piece of deceased. However DNA profiles could not be generated due to degradation of exhibits or due to presence of inhibitors. Blood could not be detected on Ex. 2 one cloth piece having light dirty stains, Ex.4 one small cushion having dirty stains and Ex.5 is also one small cushion. Saliva could not be detected on Ex.3 which is bidi. The report is Ex.PW47/A.
44. Ex.PW35/B is disclosure statement of accused no. 1 Gautam Jain which is read in reference with evidence of PW-46 dated 25.03.2022 at page 4 where it is admitted as correct that name of the accused no. 4 Sandeep is not mentioned in the disclosure statement. It is pleaded by ld. Counsel for accused that Section 120B IPC is not applicable when on 23.09.2022 even the name of accused no. 4 was not known with the investigating agency. Evidence of PW-48 dated 18.03.2023 at page 1 is referred where it is admitted by PW-48 as correct that name of accused no. 4 Sandeep is not mentioned in disclosure statement Ex.PW35/B. 44.1 It is pointed by ld. Counsel for accused no. 2 that accused no. 1 Gautam Jain when allegedly made disclosure then he was not an accused nor he was in police custody. He was not even named in the FIR. Therefore it is submitted that this disclosure has no value and cannot be relied upon.
45. The above submission of ld. Counsel for the accused appears to be correct in view of citation titled Rajesh and Anr. Vs. State of M.P. (2023) 15 SCR 1 (2023) INSC 839 (Coram 3) wherein it is laid down at relevant para no. 22, 23, 24, 26, 28, 29 and 30 that being in custody of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 44 of 174 police officer and being an accused in an offence is indispensable requirement to render a confession made before police admissible to limited extent as per guidelines laid down under Section 27 of Evidence Act. If the accused is subsequently taken into custody then such information which would otherwise be admissible will become inadmissible under Section 26 of Evidence Act as it did not come from a person in the custody of a police officer. The information must be given by the accused while he is in custody. What is admissible is the information and not the opinion formed on it by the police officer. It was further laid down that the fact discovered are not equivalent to the object produced. The fact discovered embrasis the place from which the object is produced and knowledge of the accused as to this. It is also laid down that how the panchnama has to be prepared before carrying out such discovery. In the present case by not mentioning the name of accused no. 4 Sandeep in the disclosure statement of accused no. 1 Ex.PW35/B the investigating officer was not aware about the alleged involvement of accused no. 4 to implicate him under Section 120 B IPC. At that time the name of accused no. 4 was not known to the investigating team. Further the panchnama/disclosure is not recorded by the investigating officer as per guidelines laid down under law. The panchnama must have been first prepared at the police station itself in presence of two or more independent person preferably from the same locality which is not complied with in the present case. It is also one of the requirement that if any superior officer is present then they should also sign the panchnama. The relevant para are reproduced hereasunder:
22. Section 26 of the Indian Evidence Act, 1872 (for brevity, 'the Evidence Act'), provides that no confession made by any person SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 45 of 174 whilst he is in the custody of a police officer shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27, thereafter, is in the nature of an exception to Section 26 of the Evidence Act. It states that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Therefore, it is essential under Section 27 of the Evidence Act that the person concerned must be 'accused of an offence' and being in the 'custody of a police officer', he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him. In effect, both aspects, viz, being in 'the custody of a police officer' and being 'accused of an offence', are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act.
23. In this regard, reference may be made to Bodhraj alias Bodha and others vs. State of Jammu & Kashmir 7, wherein this Court had observed that the requirement of 'police custody' is productive of extremely anomalous results and may lead to the exclusion of valuable evidence in cases where a person, after committing a crime meets a police officer and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him, and he is subsequently taken into custody and becomes an'accused'. This Court pointed out that this information, which would otherwise be admissible, becomes inadmissible under Section 26 of the Evidence Act as it did not come from a person in the 'custody of a police officer' or rather, came from a person not in the 'custody of a police officer'. In other words, the exact information given by the accused 'while in custody', which led to recovery of the articles can be proved. It was noted that this doctrine is founded on the principle that if any fact is discovered as a search was made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true.
24. Thereafter, in State of Karnataka vs. David Rozario and another 8, this Court held that information which is otherwise admissible under Section 27 of the Evidence Act would become inadmissible, if it did not come from a person in the 'custody of a police officer' SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 46 of 174 or came from a person 'not in the custody of a police officer'. It was further held that what is admissible is the information and not the opinion formed on it by the police officer and, in other words, the exact information given by the accused while in 'custody' which led to recovery of the articles has to be proved.
The two essential requirements, per this Court, are that: (i) the person giving the information must be 'accused of an offence'; and
(ii) he must be in 'police custody'.
26. More recently, in Boby vs. State of Kerala10, this Court referred to the decision of the Privy Council in Pulukuri Kotayya vs. King Emperor 11, wherein Section 27 of the Evidence Act had been considered at length and it was noted that Section 27 provides an exception to the prohibition imposed by the preceding provisions and enables certain statements made by an 'accused' in 'police custody' to be proved. It was observed that the condition necessary to bring Section 27 into operation is that the discovery of a fact in consequence of information received from a person 'accused of any offence' in the 'custody of a police officer' must be deposed to, and thereupon so much of the information, as relates distinctly to the fact thereby discovered, may be proved. It was observed that normally, Section 27 is brought into operation when a person in 'police custody' produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime, of which the informant is accused. However, the Privy Council concluded that the exception to Section 26 added by Section 27 should not be held to nullify the substance of the provision and it would be fallacious to treat the 'fact discovered' as equivalent to the object produced; the 'fact discovered' embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. By way of example, it was elucidated that information supplied by a Criminal Appeal No. 1439 of 2009, decided on 12.01.2023. AIR 1947 Privy Council 67 person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; as knives were discovered many years ago, but if it leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. Noting this principle, this Court observed that Section 27 of the Evidence Act requires that the 'fact discovered' embraces the place from which the object is produced and the knowledge of the 'accused' as to this and the information given must relate distinctly to the said fact.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 47 of 17428. That apart, the manner in which the Investigating Officer (PW-16) went about drawing up the proceedings forms an important issue in itself and it is equally debilitative to the prosecution's case.
In Yakub Abdul Razak Memon vs. State of Maharashtra through CBI, Bombay 12, this Court noted that the primary intention behind the 'panchnama' is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. It was further noted that the legislative intent was to control and check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. It was pointed out that a panchnama can be used as corroborative evidence in the Court when (2013) 13 SCC 1 the respectable person who is a witness thereto gives evidence in the Court of law under Section 157 of the Evidence Act. This Court noted that Section 100(4) to Section 100(8) Cr.P.C. stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Cr.P.C. for the purposes of a valid panchnama:
(a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real.
(b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses.
(c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama.
(d) The I.O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the main I.O.SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 48 of 174
(e) Place, Name of the police station, Officer rank (I.O.), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama.
(f) The panchnama should be attested by the panch witnesses as well as by the concerned IO.
(g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses.
(h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued.
It was held that a panchnama would be inadmissible in a Court of law if it is recorded by the Investigating Officer in a manner violative of Section 162 Cr.P.C. as the procedure requires the Investigating Officer to record the search proceedings as if they were written by the panch witnesses themselves and it should not be recorded in the form of examining witnesses, as laid down in Section 161 Cr.P.C. This Court concluded, by stating that the entire panchnama would not be liable to be discarded in the event of deviation from the procedure and if the deviation occurred due to a practical impossibility, then the same should be recorded by the Investigating Officer so as to enable him to answer during the time of his examination as a witness in the Court of law.
30. In Khet Singh vs. Union of India 14, this Court held that even if there is a procedural illegality in conducting the search and seizure, the evidence collected thereby would not become inadmissible and the Court would consider all the circumstances to find out whether any serious prejudice has been caused to the accused. However, this Court pointed out that if the search and seizure were in complete defiance of the law and procedure and there was any possibility of the evidence collected having been tampered with or interpolated during the course of such search and seizure, then that evidence could not be admitted. Though these observations were made in the context of a search and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985, they would have relevance generally.
46. Ld. Counsel for accused no. 2 Sandeep has submitted that the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 49 of 174 disclosure statement of this accused is Ex.PW35/E dated 23.09.2013. It is submitted that the conduct of IO does not appear to be conduct in ordinary course as the disclosure statement was recorded at 4 PM and in place of going for recovery of body of deceased the IO went in search of arrest of accused no. 3 Mukesh and after that went in search of accused no. 4 Sandeep. The disclosure statement of accused no. 3 Mukesh is Ex.PW35/G. PW-35 HC H. Rahman in examination-in-chief dated 15.09.2016 at page 2 has deposed that accused no. 2 Sandeep was arrested vide memo Ex.PW35/C and IO with accused no. 2 Sandeep and accused no. 3 Mukesh went to the shop of M/s. Sunny Medicos at Harit Vihar, Pepsi road to arrest accused no. 4 Sandeep. The accused no. 4 was interrogated and arrested vide memo Ex.PW3/C at the spot. Whereas the arrest memo Ex.PW3/C is mere a sham document at page no. 1569 of the case file which records the place of arrest as office of Operation Cell/North Maurice Nagar, Delhi.
46.1 Hence it is held that the disclosure was made at a different place which is at the spot and the arrest was made at different place at Operation Cell. The disclosure was made before arrest and therefore Section 27 of Evidence Act, 1872 has not become operational in case of accused no. 4 and his disclosure has no value in the eyes of law. Hence the above evidence shows that the disclosure of accused no. 4 was made prior to his arrest and in absence of proper panchnama there is no valid legal discovery against accused no. 4 from the record in view of citation titled Rajesh and Anr. Vs. State of M.P. (2023) 15 SCR 1 (2023) INSC 839 (Coram 3) (supra).
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 50 of 17447. PW-3 Sh. Kishan Lal at page no. 1 of his examination-in-chief dated 11.12.2014 has deposed that on 23.09.2013 he went to office of Operation Cell and accused no. 2 Sandeep and accused no. 3 Mukesh were already in police custody. Thereafter accused no. 2 Sandeep and accused no. 3 Mukesh had joined police investigation. It is submitted that accused no. 2 and accused no. 3 were already in police custody before joining of PW-3 Kishan Lal in investigation. PW-46 in cross-examination dated 08.11.2021 at page 3 has deposed that accused no. 2 has led to accused no. 3 and accused no. 2 and 3 jointly led to accused no. 4.
48. PW-35 in cross-examination dated 23.07.2019 at page no. 1049 of case file which is page no. 1 of cross-examination has deposed as correct that they had returned to police station at around 1 AM on 24.09.2013 and till that time only accused no. 1 Gautam, accused no. 2 Sandeep and accused no. 3 Mukesh were arrested. Hence as per deposition of PW-35 accused no. 4 Sandeep was not arrested till that time. However contrary to this arrest memo of accused Sandeep Ex.PW3/C at page no. 1659 of case file shows that accused no. 4 Sandeep was arrested on 23.09.2013 at 5:40 PM and therefore the arrest of accused no. 4 is shown ante dated by the investigating agency which shows that the documents were not correctly prepared in date and time and the investigation was conducted with bias against the accused. PW-37 SI Rajesh Kumar in cross-examination dated 06.07.2017 at page 2 in the last para has deposed as correct that vide DD No. 2A dated 24.09.2013 their arrival at PS was recorded at 1 AM which was recorded by PW-48 Insp. Paramjeet Singh and it also mentions name of SI Rajesh Kumar. It is deposed by PW-37 that he does not remember how many SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 51 of 174 accused persons were with them. It is deposed again that probably at that time 04 accused person were with them. He cannot tell if accused no. 4 was arrested by Insp. Paramjeet Singh at that time or not. It is admitted as correct that arrest memo Ex.PW3/C and personal search memo Ex.PW35/H of accused no. 4 and accused no. 3 arrest memo Ex.PW3/B and personal search memo Ex.PW35/F does not bear signature of PW-37 and neither he is cited as witness in the said memo. It is submitted that pointing out memo of accused no. 4 does not bear his signature as on the face of it the signature at point X in Ex.PW18/E are a rough scribble and does not appear to be signature of accused no. 4 Sandeep in any respect.
48.1 It is held that the above discrepancy in the evidence of prosecution has remained unexplained that when by 1 AM on 24.09.2013 only accused no. 1, 2 and 3 were arrested then how the arrest memo of accused no. 4 could be prepared on 23.09.2013 at 5:40 PM. This creates doubt about the manner place and time of arrest of accused no. 4. This also creates doubt if any disclosure statement at all was made by accused no. 4 before investigating agency.
49. It has come in evidence of PW-35 at page no. 1029 of case file which is page no. 2 of his examination-in-chief dated 15.09.2016 that accused no. 2 had led to accused no. 3. PW-3 was present at the time of arrest of accused no. 3. The accused no. 2 and accused no. 3 have allegedly led to accused no. 4 whereas PW-48 at first page of his examination-in-chief dated 19.10.2022 (page no. 1327 of case file) has deposed that first accused no. 1 and accused no. 2 were arrested after that accused no. 3 was arrested. Accused no. 4 was arrested near Nala at the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 52 of 174 instance of accused no. 2 and 3 whereas to the contrary PW-35 at page 2 of his examination-in-chief dated 15.09.2016 (page no. 1029 of case file) has deposed that accused no. 4 was arrested at Sunny Medicos situated at Harit Vihar, Pepsi road and it is claimed that on the disclosure Ex.PW35/G of accused no. 3, accused no. 4 was arrested. Hence it is doubtful whether accused no. 4 was arrested at the instance of accused no. 2 and 3 keeping in view of the fact that the arrest memo of accused no. 4 Ex.PW3/C show his place of arrest at office of Operation Cell, North Maurice Nagar. It is also doubtful that accused no. 4 was arrested at Nala near transformer. At page no. 1657 of the document file the arrest memo of accused no. 3 Ex.PW3/B where the place of arrest is shown at Operation Cell, Maurice Nagar, Delhi. PW-48 at page no. 2 of his examination-in-chief dated 19.10.2022 (page no. 1329 of case file) has deposed that after arrest of all the accused they went to Operation Cell at Maurice Nagar whereas PW-35 (at page no. 1029 of case file) has deposed that PW-3 was arrested at the spot which is gali no. 16, Bengali Colony, Burari, Delhi vide memo Ex.PW3/B where the complainant PW-3 was also present. It is submitted that as per deposition of PW-3 dated 23.09.2013 the accused no. 2 and 3 disclosure and arrest was made at Operation Cell, Maurice Nagar. Accused no. 3 and 4 were arrested at the Operation Cell. Ld. Counsel for accused no. 3 has referred to pointing out memo by accused no. 3 of Sunny Medicos vide Ex.PW25/A at page 1699 of case file. The witness to this memo is PW-25. PW-25 in his deposition (at page no. 935 of case file) has deposed that disclosure statement of accused no. 3 was recorded by IO in his presence on 27.09.2013 at Sunny Medicos/chemist shop and PW-25 has signed it. Whereas in Ex.PW48/G (at page no. 1682 of case file) PW-35 Ct.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 53 of 174Sandeep Kumar is not witness to Ex.PW48/G but it is HC Pawan. PW-25 has deposed in his examination-in-chief that he alongwith PW-48/IO and accused no. 3 went to Sunny Medical store and he does not state that they went with HC Pawan/PW-39. The identification memo of accused no. 3 Ex.PW25/A bears signature of PW-25 and not of HC Pawan who was present at the time of recording of disclosure by accused no. 3 Ex.PW48/G. Whereas PW-39 at page no. 1171 of case file in his examination-in-chief dated 05.09.2017 it is deposed that he/ASI Pawan Kumar had signed the pointing out memo prepared by the IO but the pointing out memo Ex.PW25/A does not bear his signature. It is noted that the IO was required to show the arrest of accused where they were arrested and also there is discrepancy in deposition of PW-25 and in deposition of PW-39 that PW-39 had signed pointing out memo of Sunny Medical Store whereas he had not signed it but it was signed by PW-25.
49.1 The above evidence shows that place of arrest of accused no. 4 was claimed near Nala by PW-48 whereas PW-35 has deposed that he was arrested near Sunny Medicos. Other than this when the disclosure statement was made at Operation Cell, Maurice Nagar where senior Inspector Naresh was appointed to oversee the operation then as per law laid down in citation titled Rajesh and Anr. Vs. State of M.P. (2023) 15 SCR 1 (2023) INSC 839 (Coram 3) at relevant para no. 28 (supra) that such disclosure statement must also bear the signature of Insp. Naresh Kumar which is found absent in Ex.PW35/B of accused no. 1, Ex.PW35/E of accused no. 2, in Ex.PW48/F of accused no. 2, in Ex.PW20/B of accused no. 2, in Ex.PW35/G of accused no. 3, in Ex.PW48/G of accused no. 3, in Ex.PW35/J of accused no. 4 Ex.PW18/C SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 54 of 174 of accused no. 4 and Ex.PW20/A of accused no. 4. Hence the above circumstance makes the arrest and recovery from the above accused doubtful.
1. RECOVERY OF DEAD BODY
50. PW-1 Sh. Abdul Sattar who is Diver by profession had deposed that he had reached at the spot when called by Insp. Naresh Kumar in the year 2013 and in cross-examination dated 26.09.2015 at page 1 it is deposed that the relatives of deceased had come to the spot after one hour when he had taken out the dead body from the drain. This fact creates doubt about recovery of dead body at the instance of accused when PW-1 has deposed that they went with police and accused were with the police when body was recovered. No writing work was done with him at the spot. PW-3 in cross-examination dated 23.02.2015 at page 3 has deposed that he was taken by the police to the Nala and his Sala/brother-in-law was with him. He stayed at Nala for about 15-20 mins and statement of any witness was not recorded at the spot in his presence. PW-3 has deposed that he is illiterate.
50.1 It is submitted by ld. Counsel for accused no. 2 that before arrest of accused no. 2 the dead body was already recovered by the police and no recovery was effected at the instance of accused.
51. The site plan is Ex. PW48/A and it was not prepared at the instance of any person. It is deposed by PW-11 Sh. Jasvinder Singh who is brother-in-law of PW-3 and the deceased was his maternal nephew that SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 55 of 174 police did not obtain his signature on site plan or any other paper. It is deposed that he has his own vehicle and his brother-in-law has its own vehicle. They had not gone to Nanglipuna drain in the vehicle of police. His photograph was not taken by crime team photographer showing his presence at the spot. PW-34 Ct. Rajesh Tanwar at page no. 4 of cross- examination and page no. 1019 of case file has deposed that the dead body was visible as it was near the bank which means that the dead body was visible from a distance. PW-35 in cross-examination dated 23.07.2019 at page 3 has deposed that public person had gathered at Nala and IO had recorded statement of 1-2 public person. It is argued that this shows that the body was not recovered at the instance of accused and it is not recovered as claimed by the prosecution.
52. It is deposed by PW-35 in cross-examination dated 23.07.2019 at page 3 that he was beat officer on 23.09.2013 in the same beat area where shop of accused no. 2 Sandeep is situated in the name of Kailash Medicos. He is not aware whether any PCR information was received vide DD No. 88B/Ex.PW35/DX at 10:14 PM that a dead body of a girl was found opposite Kailash Medicos. It is admitted as correct by PW-35 that because he knew accused no. 2 therefore he called him and handed over his custody to PW-48. Hence the dead body was recovered on 23.09.2013. It is further argued that dead body was lying in open drain and it cannot be said that it was exclusively within reach of accused. The site plan is Ex.PW48/A at page 1577 of case file.
53. It is further argued on behalf of accused no. 2 that even before recovery of dead body the police as per deposition of PW-3 dated SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 56 of 174 11.12.2014 went in search of accused person on the basis of identification of voice of accused no. 2 Sandeep. The voice was allegedly identified by PW-3 in the office of DCP. It is argued that police had no evidence to arrest the accused and its conduct should be to search first for the dead body. However the said identification of voice of accused no.2 is not recorded under Section 161 Cr. P.C. of PW-3 which is Mark PW3/D and the same is confronted to PW-3 at page no. 3 of cross-examination dated 22.05.2015. In the next line it is deposed that accused no. 2 Sandeep and accused no. 3 Mukesh were in custody of police at PS Burari on 23.09.2013. At the instance of accused no.2 Sandeep, accused no. 3 Mukesh was apprehended which is recorded in page no. 737 of case file. Hence accused no. 2 was already in police custody on 23.09.2013.
54. PW-3 in cross-examination dated 23.02.2015 at page 3 has deposed contrary to deposition of PW-11. It is deposed that PW-3 was taken by police to Nala and PW-11 Sh. Jasvinder Singh his brother-in-law was with him. It is deposed at page no. 5 that the dead body of his son could be identified by clothes only as the face was not clearly visible to be identified as the body was decomposed and eyes were protruded out and the tongue was outside the mouth. It is argued on behalf of accused no. 2 that the body was 4 feet 5 inch as per deposition of PW-3 at page 5 of cross-examination dated 23.02.2015 whereas in complaint Ex.PW3/B the height of deceased was disclosed as 4 feet 2 inch. Hence it is submitted that the body recovered by the police was not of master Jatin Dhingra. PW-3 has deposed that he had told during investigation that his son was wearing 'Kara' on the wrist. However it is admitted further in evidence that he did not mention this fact in any of his statement.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 57 of 17455. PW-35 in cross-examination dated 23.07.2019 at page no. 1049 of case file at para no. 2 has deposed that if it comes to knowledge of police that a body is lying in a certain place then they first go to see the dead body. PW-46 at page no. 1281 of case file and page 2 of cross- examination dated 25.03.2022 has deposed yes to the question that even after getting information/disclosure statement of accused person about dead body the team did not go to recover the dead body from Ganda Nala and went to arrest the accused person. It is argued on behalf of accused no. 2 that the conduct of investigating agency is doubtful in that without recovering the dead body they first went to search the accused person to falsely extract disclosure from them regarding the information which is already available with them i.e. where the dead body is lying. Hence the disclosure of accused person regarding the dead body has no value in the eyes of law and therefore the evidence of recovery of incriminating articles and document prepared thereafter are doubtful.
56. It is argued on behalf of the accused no. 2 that the passerby had told about the dead body and this argument is supported by deposition of prosecution witness PW-35. In cross-examination dated 23.07.2019 at page 3 that vide DD No. 88B/Mark PW35/DX a PCR information was received at 10:14 PM about dead body of a girl was found opposite Kailash Medicos and this was put to PW-35 about which he is not aware though he was beat officer in the area on 23.09.2013. However he had called accused no. 2 on such date on 23.09.2013 and handed over his custody to IO Insp. Paramjeet Singh/PW-48. It is further admitted by PW-35 at page 5 (page no. 1057 of case file) that no public SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 58 of 174 person and witness were part of investigation on 23.09.2013 and no clues were available with them from 21.09.2013 to 23.09.2013 till 9 AM. It is further deposed that they had no information on 21.09.2013 and 22.09.2013 about Manoj Kumar. He has improved in his deposition which has come in cross-examination dated 23.08.2019 at page 2 in having told IO that Manoj Kumar had given training form and voter ID card alongwith photograph to accused no.1 whereas he was confronted with his statement Ex.PW35/D1 where it is not recorded.
57. PW-3 in cross-examination dated 23.02.2015 at page no. 719 of case file has deposed that he went with his brother-in-law to the Nala and they were taken there by the police. PW-35 at page 2 of his cross- examination dated 23.07.2019 (page no. 1051 of case file) has deposed that he had not seen the complainant coming in any vehicle at the Nala. However he had seen the complainant and his brother-in-law at Nala. It is argued that as per deposition of PW-3 he stayed at Nala for about 15-20 minutes and he did not remain at the spot and did not wait for completion of proceedings and had left earlier from the spot.
58. PW-35 (at page no. 1073 of case file) has deposed in last line that dead body was identified on the basis of clothes and slippers on 23.09.2013. The slippers (at page no. 1741 of case file) were recovered vide Ex.PW3/H on 25.09.2013. The dead body pointing out memo by PW-3 is Ex.PW3/G dated 23.09.2013 at page no. 1691 of case file. At page no. 1895 of case file the dead body was identified by PW-3 the father of child vide Ex.PW3/D dated 24.09.2013. PW-35 at page no. 1075 of case file has deposed the dead body was highly decomposed and SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 59 of 174 admitted as correct that the dead body was not identifiable. PW-46 at page no. 1291 of case file has deposed that the dead body was not highly decomposed and it can be identified by face. PW-34 at page no. 1013 of case file in his examination-in-chief dated 15.09.2016 has deposed at first page that PW-3 the father of child had identified the dead body of his son when the face of dead body was washed with the water of the drain. According to PW-34 the dead body was identified at the spot only. PW-34 at page no. 1021 of case file in his cross-examination has again deposed as correct that the dead body was highly decomposed. PW-3 has deposed that body was identified by clothes only as it was highly decomposed and it is further deposed at page no. 711 of case file that in examination-in-chief dated 11.12.2014 that he identified the body at Subzi Mandi mortuary vide ExPW3/D. It is not stated in the complaint by the complainant that the victim Master Jatin Dhingra was wearing heavy Kara. PW-6 the mother at page no. 777 of case file had refused to identify the body of her son at the first instance but when the body was washed then she had identified it by the T-shirt of her son. In examination-in- chief at first page PW-6 has deposed that her son was wearing school pant of brown colour in which name of school was written near the pocket and the blue T-shirt having drawing of teddy bear on front side and the T-shirt was having black colour at back side. PW-11 in his cross- examination dated 04.09.2015 at page no. 821 of case file has deposed that the identification memo of body Ex.PW11/A was prepared at PS Burari and PW-3 has also signed the identification memo of body Ex.PW3/D at PS Burari. It is submitted that this identification by the said memo is done on 24.09.2013.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 60 of 17459. At page no. 823 of case file in cross-examination dated 04.09.2015 PW-11 has deposed that his statement was not recorded by police on 21.09.2013, 22.09.2013 and 23.09.2013 but it was recorded on 24.09.2013 at police station. It is deposed that PW-11 had his own vehicle and his brother-in-law PW-3 had his own vehicle. They did not go to Nanglipuna drain in vehicle of police. Whereas PW-3 at page no. 719 of case file in his cross-examination dated 23.02.2015 had deposed that he was taken by the police to Nala and his brother-in-law PW-11 was with him. To the contrary PW-11 has deposed in examination-in-chief at first page that he alongwith police team and accused person went to Nanglipuna drain in police vehicle. It is submitted on behalf of accused no. 3 that PW-13 could not identify any of the accused except accused no. 4 who has a tea stall near Sunny Medicos. PW-17 at first page of his examination-in-chief has deposed that he had visited at Nanglipuna drain on 23.09.2013 and IO had recorded his statement on 30.09.2013. He does not remember the place at which his statement was recorded. He had taken 18 photographs of the spot. PW-24 in his cross-examination dated 25.02.2016 at page no. 933 of case file has deposed that some police officials in uniform were present and he had not named any independent witness or the complainant or the accused if they were present at the spot. He was posted as incharge crime team. PW-26 has deposed that no chance print was taken at the spot.
60. It is deposed by PW-35 in cross-examination dated 23.08.2019 at page no. 1073 of case file that they had went in Govt. gypsy and PW-3/father of deceased was sitting with them in the same vehicle. He said again that PW-3 did not accompany them to the drain SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 61 of 174 and the PW-3 and PW-11 came together.
61. PW-48 in cross-examination dated 18.03.2023 at page 1 has deposed that Section 302 IPC was added in the case on 23.09.2013. However no DD entry was made in this regard. Ex.PW35/B/disclosure statement was shown and it is admitted as correct that name of accused no. 4 Sandeep was not mentioned in the disclosure statement. It is deposed that accused no. 3 Mukesh was arrested and they had went to Ganda Nala for recovery of dead body. It is further deposed that accused no. 4 Sandeep was arrested prior to visit to Ganda Nala.
61.1 PW-3 at page no. 79 of case file has deposed that he had not informed about any diver nor he know about any diver. The joint pointing out memo by accused Mukesh and accused no. 2 Sandeep of the dead body in the Nala is Ex.PW3/G which does not bear signature of accused no. 2 Sandeep. It is argued that this pointing out memo is not admissible in evidence for the reason that joint pointing memo cannot be prepared and further that specific words of the accused are not recorded. It bear signature of only accused no. 3. PW-11 Jasvinder Singh brother-in-law of PW-3 is witness to this recovery as per deposition at page 1. However he has not signed the pointing out memo Ex.PW3/G. During his cross- examination at page 3 it is deposed by PW-11 that police had not got his signatures on any site plan or any other paper and his statement was recorded by police on 24.09.2013 in the PS. It is deposed that he had went in his own vehicle and his brother-in-law/PW-3 has also gone separately in his own vehicle at Nanglipuna drain. They did not go in vehicle of police. His photograph was not taken by crime team SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 62 of 174 photographer to show his presence at the spot. PW-34 Ct. Rajesh Tanwar has deposed that he went to Nanglipuna Nala in Gypsy and witnessed the pointing out whereas he is not witness to the pointing out memo Ex.PW3/G. PW-34 has deposed that accused no. 2 and 3 had jointly pointed out towards the drain where the dead body was recovered. In cross-examination it is further deposed that the dead body was visible from outside and it was near the bank. At page 5 of cross-examination it is deposed that they had reached the spot at the end of daylight. The pointing out memo is dated 21.09.2013. The time of sunset on 21.09.2013 was about 7 hours 3 minutes which means that PW-34 with investigating agency must have reached Ganda Nala before that time. No photograph of PW-34 and of accused person was taken by the crime team photographer. PW-34 does not remember if he had helped in fishing out the dead body. PW-39 at page no. 1181 of case file has deposed that he cannot say whether the crime team stayed at the spot between 8:10 PM to 8:15 PM. It is deposed that the dead body was taken out from the drain after arrival of crime team. He does not remember that how many persons were in a crime team. He cannot say who is appearing in photograph Ex.PW17/A10 to Ex.PW17/A12. It is deposed that he is not appearing in photograph Ex.PW17/A1 to Ex.PW17/A18. He does not remember if he had assisted in any manner in taking out the body from drain. He does not remember the date and time of preparation of site plan though it is deposed that it was prepared in his presence. He cannot tell at whose instance the site plan was prepared. It is argued that the presence of PW-39 at the spot is doubtful.
62. PW-35 in his cross-examination dated 23.07.2019 at page no.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 63 of 1741051 of case file had deposed that SI Rajesh had prepared the site plan at Nala. Whereas PW-37 in his cross-examination dated 15.04.2017 at page no. 1103 of case file has deposed that he did not prepare any site plan at Nanglipuna drain. PW-35 at page no. 1053 of case file has deposed that public person were present at the spot on Nanglipuna drain whereas PW-37 at page no. 1103 of case file has deposed that he does not remember whether any public person were gathered or not at the spot. PW-39 at page no. 1183 of case file in his cross-examination dated 13.12.2017 has deposed that public person were not present at the spot. PW-46 at page no. 1281 of cross-examination dated 25.03.2022 has deposed that he did not notice that any public person had gathered at the spot at Nanglipuna drain.
63. PW-48 in cross-examination dated 01.06.2024(after lunch) at page 2 has deposed that he cannot identify person shown in photograph Ex.A10, Ex.A11 and Ex.A12. His photographs are not there in Ex.PW17/A1 to Ex.PW17A18. It is admitted as correct that there is no photograph of accused person or photographs of relatives of the deceased in the above photograph exhibits. PW-48 does not remember if he had recorded statement of person shown in Ex.A10, Ex.A11 and Ex.A12. It is argued by ld. Counsel for accused no. 2 that the IO was from PS Burari and when he cannot identify the person in photographs which shows that no person from PS Burari was present at the spot. Ld. Counsel for accused no. 2 has relied on citation titled Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018) Delhi 145 at relevant para no. 65 to 69 wherein it is held that when presence of accused is not shown in the entire video and the PW-4 who had witnessed the recovery of the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 64 of 174 skeletal remains is not shown in the video then the presence of PW-4 in that case and of the accused was held not been proved. PW-3 in the present case has deposed that he alongwith police and accused no. 2 and 3 went to Nanglipuna drain and both the accused have pointed out the place where the dead body was thrown. However had accused no. 4 was arrested then PW-3 must have deposed about it which is absent in the present case and therefore accused no. 4 was not arrested at that time. The photographs of police person from PS Burari and of accused person are absent in the photograph taken Ex.PW17/A1 to Ex.PW17/A18. The relevant para is reproduced hereasunder:
Recovery of the skeletal remains
65. The recovery of the skeleton and the half-burnt remains of the deceased from the BSES sub-station is again shrouded in mystery. In the first place, it must be understood that although the case of the prosecution is that it was the accused who made disclosure statements and offered to get the dead body recovered after their arrest and therefore, were present at the time of the recovery of the skeletal remains of the deceased, the evidence on record depicts a very different picture.
66. In the first place it requires to be noticed that the entire recovery of skeleton remains was video graphed. The videographer was Ct. Sube Singh (PW-20). In his cross-examination, PW-20 stated that he reached at the spot at about 6.45 am and that about 8- 10 police officials were present at the spot. The other police witness speaks about this process. Ct. Narender (PW-15) who was also present at the spot stated that the videography was taken.
Although in his examination-in-chief, he stated that on the pointing out of both the accused, the body of the deceased was recovered from the BSES sub-station, in his cross-examination, he clearly states "only police staff was present at the spot. I do not remember whether anyone from the family of the deceased was present at the spot."
67. This Court has viewed the entire video recording by playing the CD (Ex.PW-20/A) in the Court in the presence of counsel. The presence of the accused is not shown in the entire video. For that SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 65 of 174 matter the presence of PW- 4 who is supposed to have witnessed the recovery of the skeletal remains is not shown in the video. Further, although the police appeared to have reached the place in the earlier hours of 1st January 2011 to effect the above recovery, the video does not contain the electronic date or time stamp. The video appears to have been shot during daylight. This comes across in the evidence of PW-23 who states that "the skeleton had been dug by 9 am." Indeed it appears that it took about 1 - ½ hours in digging the skeletal remains of the body from the trench.
68. The story of the prosecution about PW-4 being present at the time of recovery of the body in the presence of the accused has not been proved. PW-4 does not say that in his presence the accused pointed out the place where the skeletal remains were buried. PW-4 is the one who supposedly identified the dead body of the deceased. He states that when he went to Karawal Nagar the dead body was already taken out and he identified it to be that of the deceased.
69. The Court while viewing the video did not find PW4 present in any frame identifying the dead body of the accused. On the other hand as soon as the skeletal remains were lifted from under the cables, they were placed in the body bag and zipped up. The skeletal remains are totally covered by mud and grime. With the head of the body severed and only the skull remaining with no trace of any face, it would have been next to impossible to identify the skeletal remains as that of the deceased. The video also does not show that any keys or torn cloth were present with the skeletal remains.
64. It is submitted by ld. Counsel for accused that the joint recovery on behalf of accused no. 2 and 3 is not admissible in evidence as the same is not as per law in reference to Section 27 of Evidence Act, 1872 and for the said purpose ld. Counsel has relied on citation titled Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018) Delhi 145 at relevant para no. 71 to 73 wherein it was held that joint recovery is inadmissible. It was laid down that under Section 27 of Indian Evidence Act, 1872 when more than one accused was present then it was incumbent to record the exact words used by them to connect them to recovery and the information given. This is absent in the present case.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 66 of 174The relevant para is reproduced hereasunder:
JOINT RECOVERY INADMISSIBLE
71. It was important for the prosecution, for the purpose of Section 27 of the Indian Evidence Act (IEA), to show that it was the accused who pointed out the place where the dead body was buried. As explained by the Supreme Court in Mohd. Abdul Hafeez v. State of Andhra Pradesh AIR 1983 SC 367 it was obligatory on the IO for the purpose of Section 27 of IEA, when more than one accused were present, to indicate "what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide the incriminating evidence against that person."
72. Here the prosecution has tried to show that an identical disclosure was made by each of the three accused and pursuant thereto the recovery was effected. It virtually amounts to a joint recovery which in the present circumstances is not very convincing.
73. Had there been no video of the recovery, it may have been possible to argue that the oral testimonies of the police witnesses were sufficient to prove the recoveries. However, having placed the video on record and with it not showing even the presence of the accused, the evidence of disclosures made by the accused leading to the recovery of the skeletal remains of the deceased cannot be said to have been convincingly proved by the prosecution.
65. It is argued on behalf of accused no. 2 that the disclosure of accused no. 2 and 3 are identical. It is submitted that it is a fabricated disclosure and cannot be relied upon.
65.1 It is noted that the disclosure statement of accused no. 2 Ex.PW35/E, Ex.PW20/B, Ex.PW48/F and disclosure statement of accused no. 3 is Ex.PW35/G, Ex.PW48/G are not seen identical to each other. However the disclosure statement in itself is a weak type of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 67 of 174 evidence and the relevant evidence can be admissible only under Section 27 of Indian Evidence Act, 1872. The joint pointing out memo does not bring any incriminating circumstance against accused no. 2 and 3 as discussed above. The prosecution has failed to prove the presence of accused no. 4 at the time of recovery of dead body of the victim and there is contradictory evidence many times in respect of arrest of accused no. 4 which is discussed in this judgment. Further, the body of the victim was admittedly floating above on the drain and it was visible from outside. If the victim had expired on 21.09.2013 then in the floating drain the body atleast would have floated at some distance and it would not be necessarily be available at the place where the accused would have allegedly thrown it. In absence of proper panchnama the disclosure as to throwing of body and the pointing out memo by the accused person has itself become more doubtful. The body was publicly visible in the open drain. Hence the recovery of body cannot be fastened at the instance of accused person. In case titled Roop Sena Khatoon Vs. State of West Bengal (2011) 13 SCC 303 the Hon'ble Supreme Court of India has laid down at para no. 4 that it is common knowledge that the body could not remained under water for 24 hrs. which was found floating and in that case it could be seen by anybody and therefore such circumstance looses its significance. The relevant para is reproduced hereasunder:
4. Insofar as the first circumstance relating to the disclosure of the accused having committed the murder and pointing out the corpus delicti is concerned, both the courts below have held that circumstance as a proof against the accused on the basis of the evidence of the witnesses. It is a common knowledge that the body could not have remained under the water for 24 hours. The body was bound to be floating. At least from the post-mortem report, it is clear that the body was decomposed. Under such circumstances, we do not think that the body could have ever remained underneath SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 68 of 174 the water level for 24 hours. It was certainly expected to be floating. In that case, it could be seen by anybody. Therefore, such circumstance loses its significance.
66. The ld. Counsel for the accused no. 4 Sandeep has referred to Ex.PW35/J which is disclosure statement of accused no. 4 at page no.
1683 of case file. It is submitted that the signature of accused no. 4 Sandeep at point X in disclosure dated 23.05.2013, another disclosure dated 26.05.2013 Ex.PW18/C of accused no. 4 Sandeep at point X, another disclosure Ex.PW20/A dated 30.09.2013 of accused no. 4 whose signatures bears at point X. The pointing out memo of chemist shop M/s. Sunny Medicos is Ex.PW18/E bears signature of accused at point X at page 1679 of case file. The seizure memo of plastic bowl and strip of medicine is Ex.PW18/B at page no. 1793 of case file bearing signature of accused no. 4, seizure of mobile SIM cover at page 1795 in Ex.PW23/H which bears signature of accused no. 4 and by such pointing out at above signature of accused no. 4 it is submitted that the above signature are different even among each other and one signature are not similar to the other and there fore it is submitted that the said memo are not correctly prepared as signature were not taken of the accused. It is noted that though on the face of it the above signature appears to have dissimilarities with each other. However without proper handwriting expert opinion it cannot be said that the above signatures are not made by same person who is accused no. 4. The same person can sign differently on different occasion. However in handwriting there are particulars troughs and curves which after scientific identification can be said that they are made by same person. However no scientific examination of handwriting of accused no. 4 Sandeep are proved on record and therefore it cannot be said that this handwriting as pointing out by ld. Counsel for SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 69 of 174 accused no. 4 is not signed by one and same person. In ordinary course it has to be believed that the police officer have duly and diligently observed their duty. The burden of proof to rebut the above presumption lies on the accused and same cannot be rebutted by merely oral statements without any substantive evidence.
67. It is submitted by ld. Counsel for accused that the clothes of deceased were not shown to any witness which is T-shirt. It is submitted that PW-6 was shown only dark brown colour pant which was stained in mud and could not be as such identified. The deposition of PW-6 dated 17.07.2015 at page 4 is pointed out where PW-6 had initially refused to identify the dead body of his son but when the T-shirt was washed then he had identified the T-shirt and on the basis of such identification he had identified the dead body of his son. It is submitted by the ld. Counsel for the accused that clothes of the deceased were not put in evidence to PW-33, PW-34 and PW-35. It is submitted that the said clothes therefore are not proved on record. It is submitted that the clothes are not put to the witness PW-36, PW-39, PW-46 and PW-48.
68. Ld. Counsel for accused has submitted that the accused person are not related to recovery of dead body nor the dead body of the child was recovered at the instance of accused. PW-35 ASI H. Rahman in cross-examination dated 23.07.2019 at page 3 has deposed that public person had gathered at Nala and Insp. Paramjeet Singh had prepared site plan at the spot in his presence. Public person did not join investigation. IO had recorded statement of one or two public person out of those public person. PW-35 is not aware whether any information was received SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 70 of 174 vide DD No. 88B Mark PW35/DX wherein a PCR information was received at 10:14 PM that dead body of a girl was found opposite Kailash Medicos. It is admitted by PW-35 as correct that he knew accused no. 2 Sandeep and therefore he had called accused no. 2 and handed over his custody to IO Insp. Paramjeet Singh/PW-48. The register no. II the station daily diary is at page no. 1517 of case file Mark PW35/DX dated 23.09.2013. At serial no. 88 it is recorded that at 10:14 PM dead body of one girl was recovered. According to ld. Counsel for accused no. 2 that dead body was already recovered and accused no. 2 was arrested later on. The dead body was recovered by crime branch. The body could not be identified at the spot. Ld. Counsel for accused has referred to page no. 1691 of the case file Ex.PW3/G which is identification memo by accused no. 2 and 3 of the place where the dead body of victim Jatin Dhingra was thrown after his murder. It is submitted that there cannot be joint identification memo of both the accused no. 2 and 3 and it has to be separate and on this account this identification is not valid. It is further submitted that the identification memo bears signature only of accused no. 3 Mukesh and it does not bear signature of accused no. 2 and therefore accused no. 2 was not present due to which his signatures are not there in the identification memo. As per this identification memo complainant Sh. Kishan Lal is witness no. 3 who has identified the dead body in that it belongs to his son Master Jatin Dhingra. Hence as per the case of the prosecution on 23.09.2013 PW-3 Sh. Kishan Lal has already identified the dead body of Master Jatin Dhingra. To the contrary PW-3 has also deposed that he had later identified the dead body at Subzi Mandi Mortuary vide Ex.PW3/D. The accused no. 3 Mukesh was arrested vide Ex.PW3/B on 23.09.2013 at 5 PM and accused Sandeep SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 71 of 174 Kumar was arrested vide Ex.PW35/C on 23.09.2013 at 4:00 PM.
69. PW-35 ASI H. Rahman at page no. 1051 of case file has deposed that SI Rajesh Kumar had prepared the site plan at the spot i.e. Nala. Contrary to this PW-48 in cross-examination dated 29.05.2024 at page 5 has deposed that PW-48 had prepared site plan without scale on 23.09.2013 at the site. It is argued on behalf of accused no. 2 that the IO has suppressed the site plan prepared by SI Rajesh and another site plan was prepared later in time according to convenience of investigating agency which is Ex.PW48/A prepared by PW-48 Insp. Paramjeet at page no. 1577 of case file.
70. PW-29 in his examination-in-chief dated 29.03.2016 at page no. 965 of case file has deposed that at the instance of accused Sandeep one slipper of child was recovered at Nanglipuna drain whereas PW-35 in his cross-examination dated 23.08.2019 at page no. 1073 of case file has stated that the dead body was identified on the basis of clothes and slippers at the spot whereas at that time slippers were not even recovered.
71. In cross-examination dated 23.07.2019 at page no. 3 (page no. 1053 of case file) PW-35 has deposed that IO had recorded the statement of 1 or 2 person out of public person who had gathered at Nala. It is submitted that statement of 1-2 person are not placed on record by the prosecution which is relevant evidence. It is deposed that there is one diver whose name was Abdul Sattar. PW-35 was beat officer on 23.09.2023 in the same area where shop of accused no. 2 Sandeep is situated. He is not aware if any information was received vide DD No. SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 72 of 174 88B in which a PCR information was given at 10:14 PM that dead body of a girl was found opposite Kailash Medicos. The DD entry is marked as PW35/DX. In the same deposition in last two lines at page 3 PW-35 has admitted as correct that he knew accused no. 2 Sandeep and he called accused no.2 at the spot and thereafter handed his custody to IO Insp. Paramjeet Singh. It is therefore submitted that on 23.09.2013 in the night only accused no. 2 was called after 10:14 PM by PW-35 and handed over accused no. 2 to the IO PW-48 and how the actual dead body was found is manipulated by the prosecution and the case is falsely implanted upon accused no. 2. The DD entry is at page no. 1517 of case file which is Mark PW35/DX. It is submitted that this witness is not cross-examined by the prosecution and this evidence will continue to stand against the prosecution. Ld. Counsel for accused no. 2 has relied on citation titled Mukhtiar Ahmed Ansari Vs. State of NCT of Delhi AIR 2005 SC 2804 (supra) where it is held that the witness who has not supported the case of the prosecution and has not been declared hostile will continue to stand against the case of the prosecution in absence of any explanation.
72. It is noted that the accused cannot say that every witness has to depose in evidence about every fact. It is for the prosecution to bring best evidence before the Court. In fact identification of dead body is primarily has to be done by the parents of deceased who are PW-3 and PW-6 and if the prosecution can prove and substantiate its evidence even by one witness then also the same can be sustained. It is settled law that it is not the number of witness but the quality of witness which is material.
73. Hence there are contradictions found in deposition of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 73 of 174 witnesses regarding identification of dead body at the spot or at the Subzi Mandi mortuary or that it was identified at some other point in time keeping in view the fact that initially the dead body could not be identified due to its being in highly decomposed condition. PW-6 the mother had refused to identify the dead body of his son as it was highly decomposed. PW-35 has deposed that the dead body was identified on the basis of clothes and slippers on 23.09.2013 whereas slippers were not recovered on 23.09.2013 but after that on 25.09.2013. PW-34 has deposed that the dead body was identified at the spot only when the face of the body was washed and this body was identified by PW-3 whereas the PW-3 has deposed that the body could not be identified due to the fact that dead body was highly decomposed. Further, the recovery of one dead body was specifically put to both PW-35 and PW-48 which was recorded vide DD No. 88B/Mark PW35/DX and this information was received at 10:14 PM regarding dead body of girl found opposite Kailash Medicos. When this evidence has specifically put to the above witness then prosecution is liable to explain whether this body of the girl reported on 23.09.2013 at 10:14 PM is the same body of the kidnapped boy Master Jatin Dhingra or some other person. However there is no explanation by the prosecution in this respect. PW-35 was beat constable of the area where from this body allegedly of the girl was recovered behind Kailash Medicos in the drain/Nala. This also raises question about pointing out of the dead body of victim at Nanglipuna drain on the face of receipt of information of recovery of dead body of a girl vide DD No. 88B/Mark PW35/DX. There is no explanation that what happened to the dead body of a girl and PW-35 being the beat constable cannot remain silent to this aspect. The silence on material aspects creates doubt in the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 74 of 174 case of the prosecution. Moreso the memos were prepared as to identification of dead body on next day. No public witness was joined in recovery of dead body and in view of the contradictions and improvements pointed out in the deposition of witness it has become highly incumbent on the part of investigating agency to join public witness before recovering dead body on the pointing out of the accused person. Hence the above facts creates doubt in the story of prosecution if the dead body at all was recovered on the pointing out of the accused person. Further, there is difference in the height of dead body recovered which is 4 feet and 5 inches whereas reported height of dead body was 4 feet and 2 inch. It is not the case of the prosecution that the height of deceased could vary by 3 inch by such drowning in water/floating of the body. No evidence is produced in this respect by the prosecution that the body of the deceased could have bloated in height by 3 inches. Further, the body was identified by the clothes and not by its DNA profiling or further medical examination. Hence recovery of correct body and at the instance of accused persons is doubtful in the case of the prosecution.
2. WHETHER THE DOCUMENTS WERE GIVEN BY MANOJ/PW-2 TO ACCUSED NO. 1 FOR TRAINING
74. PW-48 in his examination-in-chief dated 13.01.2023 (pre- lunch session) at page 2 has deposed that accused no. 1 had got recovered from first floor of his house documents in the name of Manoj Kumar and a paper containing bio-data format in which photograph was already removed from the space provided. The said bio-data was in a folder produced by accused no. 1 which also contains documents in the name of Manoj Kumar. The documents were found attested which were seized SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 75 of 174 vide memo Ex.PW37/A and the documents are marked as Mark PW37/1(colly) on record.
74.1 It is argued on behalf of accused no. 2 that transfer of documents from Manoj to accused no. 1 Gautam is not admissible under Section 27 of Evidence Act, 1872. PW-37 in his examination-in-chief dated 15.04.2017 at page 3 and page no. 1087 of case file where it is deposed that on interrogation accused no. 1 Gautam admitted receiving of photocopy of documents and photograph of Manoj which he had given to accused Sandeep whose disclosure statement was recorded vide Ex.PW35/B and Ex.PW35/E. At page no. 2 of the examination-in-chief it is deposed by PW-37 that Manoj told PW-37 that he had given attested photocopy of documents alongwith photograph to one Gautam Jain for some job purpose few years ago when he was working in some BPO. It is argued on behalf of accused no. 2 that till that time accused no. 1 Gautam was neither named in FIR nor accused no. 1 Gautam was in police custody and therefore the same cannot be read as evidence under Section 27 of Evidence Act, 1872. The disclosure statement of accused no. 1 Gautam which is Ex.PW35/B at page no. 1699 of case file is referred. In reference to deposition of PW-35 dated 23.08.2019 at page 3 and page no. 1065 of case file where it is deposed by PW-35 that disclosure statement of accused Gautam was not recorded in his presence nor any clue or evidence was recovered from accused no. 1 in his presence to establish any link with co-accused. PW-35 is ASI H. Rahman is shown as witness to disclosure statement of accused Gautam Jain in Ex.PW35/B and hence the recording of disclosure statement of accused no. 1 has become doubtful.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 76 of 17475. After going through the case file PW-37 was unable to indicate seizure memo in respect of documents received from service provider. Hence it is argued for accused no. 2 that there is no new discovery under Section 27 of Evidence Act, 1872 as the IO already had possession of copy of election I-card of Manoj Kumar though it is deposed by PW-37 at page 2 that he does not remember whether prior to arrest of accused no. 1 he was having possession of copy of election I- card of Manoj Kumar. It is deposed voluntarily that he saw details of mobile phone subscription and the documents provided by service provider might be including the copy of I-card of Manoj. It is admitted as correct that Manoj Kumar was with PW-37 on 22.09.2013 and the CAF was already received on 22.09.2013 and therefore documents were already received by PW-37 even before alleged disclosure by accused no. 1 and accused no. 2.
76. It is submitted on behalf of accused no. 1 that prosecution has no evidence to show that accused no.1 Gautam Jain had ever worked with SERCO BPO. PW-2 Manoj in cross-examination dated 07.01.2015 at page no. 683 of case file has deposed that he was appointed in Serco in 2007. It is noted that the alleged documents were given to accused no. 1 by PW-2 in the year 2009 and such documents were not taken back by him till the year 2013. The alleged documents were given for the purpose of training. In reference to SERCO BPO at page no. 2 of the same cross- examination PW-2 has deposed that accused no. 1 Gautam used to verify documents at SERCO. However it is argued that accused no. 1 has no relation with SERCO BPO and he had never worked in SERCO BPO. At SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 77 of 174 page no. 4 of same cross-examination it is deposed by PW-2 that police alongwith his friend Anil had came to farmhouse between 1 to 1:30 AM on 21.09.2013 where he was working. PW-2 remained in police custody upto 24.09.2013. It is further deposed that PW-2 had given documents which are photocopy of I card, photo, photocopy of educational documents, photocopy of ration card, form to two other person namely Ajit Kumar and one another person Sh. Manoj. Sh. Ajit was residing at B-Block, Jahangir Puri and Manoj was residing at Ramgarh near Jahangirpuri Metro Station. Manoj used to work at NDPL. He did not name any person from Adarsh Nagar who is a photographer. It is argued on behalf of accused no.1 that accused no. 3 is a photographer. PW-2 gave documents to Sh. Ajit and another person Sh. Manoj at the time for getting job. The attestation by witness was required. It is argued that there was no reason with the police to arrest accused no. 1 since documents were given by PW-2 to many persons and accused no. 1 is not related in any manner to SERCO BPO. As per seizure memo Ex.PW37/A dated 24.09.2013 (page no. 1719 of document file) all the documents are photocopy. It is argued that the above documents were already available with the police on 23.09.2013 as PW-39 in his examination-in-chief dated 05.09.2013 has deposed that on 23.09.2013 he with Insp. Naresh and SI Rajesh had interrogated PW-2 Manoj and because the said documents were already available with the police the police could have interrogated PW-2 in this respect.
77. PW-2 in his cross-examination dated 07.01.2015 has deposed that he had not been provided with the appointment letter by SERCO BPO. He does not remember the name of the person who had interviewed SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 78 of 174 him. He had given proof of his employment in Facing House to the police. The name of his senior is one Sh. Maninder and the Supervisor were Ravi and Nitin. He does not remember the name of manager and incharge of HR department. In his team there were 25-30 field agents. It is argued that when PW-2 was already working with SERCO BPO in the year 2007 then there is no need to give documents in the year 2009. at page no. 3 of same cross-examination it is deposed by PW-2 that there was short commission on account of which many of boys have left the job including PW-2 in SERCO company and therefore their team could not get the training. The form Ex.PW2/DB allegedly given by him to accused no. 1 Gautam does not bear his signature and does not affix his photograph. The Form does not bear date. It is pointed out on behalf of accused no. 1 that PW-14 in his cross-examination dated 11.04.2022 (at page no. 851 of case file) has deposed that PW-2 Sh. Manoj was working as generator operator in telephone exchange at Khera Khurd, Delhi. PW-2 used to sign in log book after resolving the problem which is further verified by junior telephone officer and further verified by PW-14. It is admitted as correct that the photograph Ex.PW5/A at point X and signature appearing at point Y is of PW-2 Manoj Kumar. It is submitted that document Ex.PW14/A and Ex.PW14/B at page no. 1723 and page no. 1725 of document file bears date of attestation as 16.01.2009. Similarly document Ex.PW14/C and Ex.PW14/D bears the same date of attestation. PW-14 in his examination-in-chief dated 28.09.2015 has deposed that he was posted as SDO at Alipur exchange in the year 2009 and PW-2 Manoj was working on contract basis as generator operator. He had attested the documents of Manoj Kumar/PW-2. It is further deposed that PW-2 was working in Khera Khurd exchange since the year 2004 SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 79 of 174 and he does not remember after year 2009 till which date PW-2 had worked at MTNL exchange. PW-2 did not disclose the detail of job for which he got his documents attested and his duty hours were from 9 AM to 5 PM. The ID card of PW-2 of working at SERCO BPO and the date of joining was shown as 01.12.2008 which is at page no. 1763 of case file. Hence the above document of the prosecution is contrary to the deposition of PW-14 that PW-2 was working as generator operator continuously from the year 2004 till the year 2009 and further at MTNL.
78. The said application form for training at SERCO BPO is Ex.PW37/1 ( at page no. 1721 of document file). This form is addressed to the Central Manager, N/S, SPARTA Limited. This is the alleged training form given by PW-2 to accused no. 1 Gautam. It is noted that the prosecution has to show that the PW-2 was nominated for training at N/S SPARTA Limited by SERCO BPO so that he could have applied for this training or the prosecution has to show the eligibility of PW-2 as prescribed by SERCO BPO to apply for training at N/S SPARTA Limited. In fact prosecution had not made any inquiry in this respect at N/S SPARTA Ltd. or from SERCO BPO to show that the PW-2 at that time had to apply for this training. In absence of which it cannot be said that PW-2 had to apply for such training and therefore it cannot be said that the said documents were given by PW-2 to accused no. 1 Gautam for such training. It is further noted that the IO PW-48 never went to SERCO BPO to make investigation that whether accused no. 1 had any connection with it or there was any training at SERCO BPO or in reference to it in the year 2009 or that who was conducted the training. It is noted that when PW-2 was already employed then why he will be SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 80 of 174 given training by SERCO BPO at all. PW-48 in his cross-examination dated 20.04.2024 has deposed at page no. 3 that he did not investigate that PW-2 was working at Khera Khurd exchange. He does not have any evidence to show that PW-2 was ever sacked from SERCO BPO after the year 2007. At page 4 of cross-examination dated 20.04.2024 of PW-48 it is deposed that PW-48 does not know the job profile, qualification and designation of PW-2 at SERCO BPO. He did not ask PW-2 Manoj Kumar when he joined and left SERCO BPO. No appointment letter was given by PW-2 of his joining at SERCO BPO. He did not go to SERCO BPO to find whether PW-2 was working there or not. He does not know when the attested documents were provided by PW-2 to accused no. 1 Gautam Jain. He did not investigate any company by the name M/S NIS SPARTA. The sponsorship letter Ex.PW2/DB. He does not know address of M/S NIS SPARTA. He does not know for what training Ex.PW2/DB was for. It is admitted as correct in Ex.PW2/DB there is no mention of SERCO BPO nor there is seal of SERCO BPO nor there are signature of PW-2 Manoj. PW-48 does not know who was sponsorsing the training mentioned in Ex.PW2/DB=Mark PW37/1 or that when this training had to take place. He did not investigate Sh Ajit and another person Sh. Manoj to whom documents were given by PW-2 Manoj.
79. It is deposed at page no. 6 of same cross-examination of PW-48 that he does not have an proof to show that accused no. 1 Gautam Jain was working at SERCO BPO nor did he investigate such employment of accused no. 1. He does not remember if any witness stated about accused no. 1 working at SERCO BPO. He did not record statement of staff at SERCO BPO in reference of accused no. 1. He had SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 81 of 174 no evidence in which school accused no. 1 had studied nor does he any evidence to show that accused no. 1 Gautam and accused no. 2 had studied in the same school.
80. PW-39/ASI Pawan Kumar at page 1167 of case file in cross- examination dated 08.09.2017 has deposed that he does not remember whether PW-2 had told in which year he had given documents to accused no. 1. PW-2 did not show proof of his employment on 23.09.2013 to the IO whereas PW-39 is witness to seizure memo of documents from accused no. 1 vide memo Ex.PW37/A (page no. 1719 of document file). The documents are Ex.PW14/A and Ex.PW14/B. PW-39 in cross- examination dated 08.09.2017 at page no. 8 (page no. 1175 of case file) has deposed that he does not remember if any document in the name of accused no. 1 Gautam was seized. PW-37 in cross-examination dated 07.07.2017 at page no. 2 (at page no. 1141 of case file) has deposed that he does not remember whether any document pertaining to SERCO BPO in the name of accused no. 1 Gautam were recovered. He does not remember whether the person to whom the separate documents were related had been investigated. PW-35 in his cross-examination dated 23.08.2019 at page 1 (page no. 1061 of case file) has deposed that IO might have shown documents to PW-2/Manoj Kumar and PW-2 Manoj Kumar did not produce any document to the IO in his presence. PW-35 is witness to seizure memo document from accused no. 1 vide Ex.PW37/A. PW-48 in cross-examination dated 07.05.2024 at page 3 has deposed that he does not know the exact time of reaching the house of accused no. 1. He did not ask neighbours to join the investigation against accused no. 1 Gautam. It is argued that no public witness was joined and above seizure SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 82 of 174 of documents from accused no. 1 cannot be relied.
81. The seizure memo Ex.PW18/B pertains to seizure of bowl in which the Alprex tablets were crushed and the said Alprex tablet were allegedly administered to the kidnapped boy by the accused person. The seizure memo of keys Ex.PW18/A with which the said Alprex tablet were allegedly crushed in the bowl are at page no. 1747 of the case file. It is argued that the keys were not sent to FSL by the prosecution. Other than this it is pointed out that as per deposition of PW-45 Dr. Kanak Lata Verma from RFSL, Chanakyapuri the sealed wooden box was received on 01.11.2013 whereas as per seizure memo Ex.PW18/A the keys were seized on 26.09.2013 and similarly the other articles i.e. bowl in which the said Alprex tablets were crushed. It is submitted that there is material delay in sending the seized articles to the FSL due to which the evidence has deteriorated. It is further argued that no evidence could be detected of Alprex tablet in Ex.2 which is black colour small bowl and it did not find contain Alprazolam (Benzodiazepine) group of drugs which is so deposed by PW-45. It is further deposed that Benzodiazepines and pesticides could not be detected in Ex.1A, Ex.1B and Ex.1C which were in parcel 1 containing viscera of Jatin Dhingra. Hence it is argued that there is no evidence that Alprex tablets were at all administered to the deceased boy Master Jatin Dhingra.
82. It is argued on behalf of accused no. 3 that PW-35 is instrumental in bringing accused no. 2 and 3 in picture as PW-35 knew the Dimple Telecom beforehand and also the accused no. 3 the photographer which is deposed by PW-35 in his evidence. The pointing SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 83 of 174 out memo of deceased is ExPW3/G. It is argued that the role of PW-35 is not clean as he knew before hand accused no. 2 and 3. The personal search memo Ex.PW35/D of accused no. 2, Ex.PW35/F of accused no. 3, personal search of accused no. 4, disclosure statement of accused no. 3 Ex.PW35/H at page no. 1679 of case file, another disclosure statement at page no. 1689 of case file of accused no. 3 all of which bears signature of PW-35 of Ct. H. Rahman only as witness. It is submitted that it is no coincidence and the accused no. 2 and 3 are falsely roped in at the instance of PW-35 as PW-35 knew before hand both accused no. 2 and 3. it has come in deposition of PW-35 in cross-examination dated 23.07.2019 at page no. 3 (page no. 1053 of case file) that he was beat officer on 23.09.2013. He has admitted as correct that he knew accused no. 2 and called him and handed him over to IO Insp. Paramjeet Singh. At page no. 1071 of case file in cross-examination dated 23.08.2019 it is deposed by PW-35 that he knew accused no. 3 Mukesh prior to the date of incident as accused no. 3 used to run shop of photography from whom PW-35 used to take services when required.
83. The above evidence proves on record that PW-2 Manoj was working as generator operator at the office of SDO at Alipur Exchange since the year 2004 to 2009. The office working time were from 9 AM to 5 PM. The ID card of PW-2 of working at SERCO BPO shows his date of joining as 01.12.2008. However there is no investigation by the IO from the SERCO BPO to prove that PW-2 was employed with SERCO BPO in the year 2008. The deposition of PW-2 is found to be contradictary that between the year 2004 to 2009 not only he worked at SERCO BPO but also for the purpose of getting some training he had SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 84 of 174 submitted the form to accused no. 1 Gautam Jain when PW-2 was not found working at SERCO BPO during such period. There was no reason with PW-2 to give any documents to accused no. 1 to get training. The training had to be obtained from N/S Sparta However there is absence of investigation and evidence in this respect if any training had to be imparted by SERCO BPO to PW-2 through N/S Sparta Ltd. Or that any training was invited by SERCO BPO from PW-2 at N/S Sparta Ltd. There is no evidence that accused no. 1 Gautam Jain had any connection with SERCO BPO for any purpose or with N/S. Sparta Ltd. For the purpose of imparting training to PW-2. Hence the theory of prosecution that the documents were given by PW-2 to accused no. 1 Gautam Jain for the purpose training falls on the ground as it has no basis in evidence. Hence accused no. 1 could not be connected by the prosecution in receiving documents from PW-2 on the basis of which the alleged SIM card of mobile phone was issued by PW-12. No document was recovered pertaining to SERCO BPO in the name of accused no. 1 Gautam Jain. PW-48 does not remember the exact time of reaching the house of accused no. 1 nor did he ask the neighbours to join. IO did not investigate Sh. Ajit and one other person Manoj to whom documents were supplied by PW-2 Manoj Kumar. There is no evidence that any company by the name N/S Sparta had ever existed. The doubt has multiplied in view of the fact that before making search of house of accused no. 1 the IO did not join public witness and this goes to the root of the case of the prosecution.
3. DISCLOSURE, DISCOVERY AND SEIZURE SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 85 of 174
84. The disclosure statement of accused Mukesh is Ex.PW35/G and in evidence of PW-25 Ct. Sandeep Kumar has deposed in cross- examination at page 2 that the disclosure statement of accused Mukesh was recorded by IO in his presence on 27.09.2013 which was signed by PW-25. It is further deposed that the disclosure statement was recorded at Sunny Medical store. The Sunny Medico was open. It is deposed that they did not have key of the Sunny Medico. It is argued on behalf of accused no. 4 Sandeep that it implies that after 26.09.2013 the shop Sunny Medico was again opened by the investigating agency on 27.09.2013. PW-35 in cross-examination dated 23.08.2019 has deposed that after arresting accused no. 4 Sandeep the shop was closed and the key of M/s. Sunny Medicos was retained by investigating officer. From the shop IO has also seized tablets. It is deposed by PW-37 in cross- examination dated 15.04.2017 at page 8 that they had visited the shop in the afternoon which is Sunny Medicos but he does not remember the time. At that time accused no. 2 and 3 were with them and accused no. 4 was found outside the shop.
84.1 Ld. Counsel for the accused has relied on citation titled Boby Vs. State of Kerala in Criminal Appeal No. 1439 of 2009 from Hon'ble Supreme Court of India at the relevant para no. 25 which is reproduced hereasunder:
25. A three−Judges Bench of this Court recently in the case of Subramanya v. State of Karnataka7, has observed thus:
"82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 86 of 174
"27. How much of information received from accused may be proved.--
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would 7 2022 SCC OnLine SC 1400 arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch−witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses(panch− witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 87 of 174 investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
85. The IO has not joined two independent witness at the time of recording of disclosure of the accused which is mandatory. It is submitted that it is laid down in citation titled Rajesh and Anr. Vs. State of M.P. (2023) 15 SCR 1 (2023) INSC 839 (Coram 3) (supra) that how the panchnama has to be drawn and the prosecution has not drawn panchnama as per settled law.
86. PW-27 in his examination-in-chief dated 29.03.2016 has deposed that investigation of the case was handed over to SI Rajesh on 21.09.2013. In further examination-in-chief dated 04.08.2016 PW-27 has deposed that DD No. 30A was recorded on 21.09.2013 which is Ex.PW3/B. The complaint is Ex.PW3/B which is DD No. 30A dated 21.09.2013. It is deposed by PW-27 in cross-examination dated 04.08.2016 that no other DD was recorded by SI Rajesh Kumar. In the same deposition PW-27 has deposed that the complainant had given direct oral complaint regarding kidnapping Master Jatin Dhingra which was shared with Insp. Paramjeet Singh by PW-27 after which DD No. 30A was recorded. Ex.PW3/B was recorded by HC Joginder Singh/PW-27. Ex.PW3/A is FIR which was initially registered under Section 363 IPC. It is admitted by PW-27 as correct that the third page of FIR which is Ex.PW27/A has all the writing in different pen and at some point fluid has been used.
87. The complaint Ex.PW3/B is dated 21.09.2013 and it was lodged on 6:35 PM. The victim was missing since 11:30 AM on SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 88 of 174 21.09.2013. The FIR was registered on the same date even if different pen are used in the FIR or fluid is used even then it does not create any doubt about the earliest registration of FIR and that it was registered in due course. No doubt arise in proper registration of FIR.
88. Ex.PW34/DA at page no. 1899 of case file is letter to CMO, Mortuary by SI Rajesh Kumar which was received at 10:10 PM on 23.09.2013. It is argued that by that time Section 363 IPC was there on the application and Section 302 IPC was not added by the IO.
88.1 As per cross-examination of PW-24 dated 25.02.2016 the IO at that time was SI Rajesh Kumar on 23.09.2013. PW-24 was posted as Incharge Crime Team, North District and he remained at the spot from 8:10 PM to 8:50 PM. It is argued on behalf of accused no. 2 that till that time there was no disclosure on record. PW-48 in his deposition dated 29.05.2024 at page 1 has deposed that in crime team report Ex.PW24/A the name of IO has been wrongly written as SI Rajesh Kumar. However it is admitted as correct that SI Rajesh Kumar had preserved the dead body in the mortuary under directions of PW-48 and it is deposed that PW-48 was IO. The Ex.PW34/DA is application to CMO Mortuary. It is deposed by PW-48 that the penal provision mentioned are Section 363, 364A IPC and this application was moved by SI Rajesh Kumar on behalf of PW-48 Insp. Paramjeet.
89. PW-28 in his examination-in-chief dated 29.03.2016 at page 2 has deposed that Insp. Paramjeet Singh on 26.09.2013 had deposited with him one sealed parcel containing mobile SIM cover and another sealed SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 89 of 174 parcel containing keys. One more sealed parcel with the seal of PS containing one bowl and strip of medicine which he had deposited in Malkhana on 26.09.2013. It is pointed out by the ld. Counsel for accused no. 4 that PW-28 had contradicted deposition of PW-25. PW-25 has deposed that they went to Sunny Medicos on 27.09.2013. It is pointed out that as per deposition of PW-18 in cross-examination dated 22.02.2016 at page 2 the pullanda of key was seized vide memo Ex.PW18/A from the house of accused no. 4 Sandeep @ Sunny. PW-18 Ct. Bani Ram has deposed at page 6 that he does not remember if any document was prepared at spot nor does he remember that he had signed such document. It is deposed further that the key of the shop was brought by accused no. 4 Sandeep which was hanging on a nail on the wall. No other accused person except accused no. 4 was with them on 26.09.2013. It is argued on behalf of accused no. 4 that the investigating agency already had key of the shop M/s. Sunny Medicos in their possession on 26.09.2013 which was deposited in Malkhana on 26.09.2013 itself and the Sunny Medicos cannot be reopened without taking such keys from the Malkhana by the IO on 27.09.2013. Hence keys of the M/s. Sunny Medicos were already in possession of the police. It is submitted by the ld. Counsel for the accused that it is doubtful the way in which the keys were recovered from accused no. 4 Sandeep. PW-3 in cross-examination dated 23.02.2015 at page 2 has deposed that some public person of neighbourhood had gathered at the time of apprehension of accused no. 4 Sandeep who was getting down from the shop after closing it. PW-25 in his cross-examination dated 25.05.2016 at page 2 has deposed that disclosure statement of accused no. 3 Mukesh was recorded by the IO in his presence on 27.09.2013 at Sunny Medical Store and the shop was SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 90 of 174 open. It is deposed that they did not have key of Sunny Medico. The PW-48 in cross-examination dated 23.03.2023 at page 4 had denied the suggestion that the keys of Sunny Medicos were seized by him on 23.09.2013 or that the seizure memo of key was deliberately prepared on 26.09.2013. It is deposed at page 3 that the seizure memo of keys of the shop of Sunny Medicos was prepared at the shop of Sunny Medicos on 26.09.2013 after coming from the house of accused no. 4. It is deposed that PW-48 with investigating team around 8-9 persons had taken only accused no. 4 inside his house and the seizure memo of keys was not prepared at the house of accused no. 4 neither it was prepared at PS Burari. Efforts were made to join public person but none agreed. PW-35 is beat officer on 23.09.2013 in the same area where shop of accused no. 4 Sandeep is situated. It is deposed by PW-35 HC H. Rehman in cross- examination dated 23.08.2019 at page 4 that at the time of arrest of accused no. 4 Sandeep the shop M/s. Sunny Medicos was open. It is deposed by PW-46 in cross-examination dated 25.03.2022 that accused no. 4 Sandeep was arrested vide memo Ex.PW3/C on 23.09.2013 at about 5:40 PM. In cross-examination dated 25.03.2022 it is deposed by PW-46 at page 5 that he does not remember whether the shop of accused no. 4 was closed or open when they had reached there. Similarly PW-48/IO does not remember whether the shop of accused no. 4 was open or close when they had reached there. It is deposed by PW-35 in cross-examination dated 23.08.2019 at page 4 that at the time of arrest of accused no. 4 Sandeep vide memo Ex.PW3/C dated 23.09.2013 the shop M/s. Sunny Medicos was open. At page no. 5 it is deposed that the shop was closed by investigating officer/IO/PW-48 and the key were retained by the IO of M/s. Sunny Medicos. It is submitted that as per deposition of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 91 of 174 PW-35 the investigating team had reached at Sunny Medicos on 23.09.2013 and keys were already seized by the IO and therefore recovery is doubtful. The accused were taken at special cell where disclosure was recorded and not at the spot and it is submitted that before disclosure the recovery was already effected by the investigating agency and hence Section 27 of Evidence Act is not applicable. It is deposed by PW-37 in examination-in-chief dated 15.04.2017 at page 7 that mobile phone of make Samsung, Micromax and another one touch screen Micromax Ex.PY6, Ex.PY7 and Ex.PY8 were recovered from accused no. 4 Sandeep. PW-39 in cross-examination dated 08.09.2017 has deposed that his statement was recorded by IO on 24.09.2013 in the police station but he cannot tell the time. It is submitted by the ld. Counsel for accused that PW-3 has not deposed that the keys were seized from accused no. 4 when accused was closing his shop i.e. as per deposition of PW-3 at page 2 dated 23.02.2015.
90. PW-25 has deposed that they had went to Sunny Medicos on 27.09.2013 whereas PW-28 has deposed that they had already deposited sealed parcel containing mobile SIM cover and another parcel containing keys at Malkhana on 26.09.2013. Another parcel containing bowl and strip of medicine was also deposited. It means that the above articles were already seized on or before 26.09.2013. PW-18 has deposed that the pullanda of keys was seized from house of accused no. 4 and the key of the shop was brought by accused no. 4 which was hanging on a nail on the wall. To the contrary PW-3 has deposed that accused no. 4 Sandeep was apprehended when he was getting down from the shop after closing it which means keys were not seized as deposed by PW-18. PW-25 has SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 92 of 174 deposed that the disclosure statement of accused no. 3 was recorded on 27.09.2013 at Sunny Medical store and at that time the shop was open and they did not have key of Sunny Medicos. Whereas as per deposition of PW-18 the keys were already seized by IO on 26.09.2013. PW-48 has deposed that seizure memo of keys of Sunny Medicos was prepared at the shop on 26.09.2013 whereas PW-18 has deposed that keys were seized at the house of accused no. 4 Sandeep. Hence there was no reason to seize the keys at the house of accused no. 4 Sandeep and thereafter prepare the memo at the shop of Sunny Medicos. This creates doubt in the case of prosecution as to such seizure of keys and further search and seizure at the shop of Sunny Medicos of mobile SIM cover and a strip of medicine. No public witness was joined by the IO though as per PW-3 public person from neighbourhood had gathered at the time of apprehension of accused no. 4 Sandeep. PW-46 has deposed that accused no. 4 was arrested on 23.09.2013 at about 5:40 PM vide memo Ex.PW3/C. Whereas the IO had not shown arrest of accused no. 4 on record by such time. PW-35 has deposed that IO had reached at Sunny Medicos on 23.09.2013 and keys were seized by him. The accused was taken to Special Cell where his disclosure was recorded and disclosure was not recorded at the spot. It is further deposed by PW-39 that he cannot say at what time his statement was recorded by the IO on 24.09.2013. PW-3 has not deposed that if the keys were seized from accused no. 4 in his presence though he was with the investigating team.
91. PW-35 in cross-examination dated 23.08.2019 at page 4 has deposed that at the time of arrest of accused no. 4 Sandeep the shop M/s. Sunny Medicos was open. It is admitted as correct at page 5 that the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 93 of 174 clinic of Dr. Rajan was open at the time of arrest of accused no. 4 Sandeep. However no person was called to join as witness at the time of arrest of accused no. 4. Whereas PW-48 in his cross-examination dated 18.03.2023 at page 2 has deposed that on 23.09.2013 at about 4:30 PM when they had reached at the shop of accused no. 4 Sandeep and apprehended him then the shop M/s. Sunny Medicos and clinic of Dr. Rajan was close. At page 3 it is deposed that the disclosure statement of accused no. 4 was not recorded at the place of his arrest and Insp. Naresh Kumar was with him at that time. No family member of accused no. 4 Sandeep was called nor any document was prepared at the spot nor any statement of witness was recorded at the spot of arrest of accused no. 4 Sandeep. It is further admitted by PW-48 at page 3 as correct that he had not mentioned in the application Ex.PW48/D1 that the accused person were produced in muffled face. At page 4 of the same cross-examination it is deposed by PW-48 that he had prepared pointing out memo of shop Kishor Communication and at that time the said shop was close on 24.09.2013. Both the accused no. 4 Sandeep and accused no. 2 another Sandeep was with PW-48 and it is argued that joint pointing out memo is not admissible in evidence. It is further deposed that PW-48 did not collect bill book of Kishor Communication on 24.09.2013.
92. PW-35 the beat officer has deposed that Dr. Rajan had his clinic open at the time of arrest of accused no. 4 and no person was called to join as witness at the time of arrest of accused no. 4 and to the contrary PW-48 has deposed that efforts were made to join public person but none has agreed. PW-48 has deposed that shop of Dr. Rajan was close contrary to the deposition of PW-35. PW-48 has deposed that disclosure of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 94 of 174 accused no. 4 was not recorded at the place of his arrest nor any document was prepared at the spot. The pointing out memo of the shop of Kishor Communication was made on 24.09.2013 and at that time the shop was closed whereas PW-19 from Kishor Communication has deposed that police had came to him with the accused person and made inquiry regarding the case.
93. Ex.PW48/E is joint pointing out memo by accused no. 2 and accused no. 4 of mobile shop Kishor Communication from where mobile handset of make Santosh was purchased on 16.09.2013 and from which ransom call was allegedly made. The pointing out memo is at page no. 1693 of case file. It is argued that joint pointing out memo is not admissible in law.
94. The joint pointing memo of accused no. 2 and 4 of mobile shop of Kishor Communication is not found to be a valid pointing out memo. The pointing out memo or disclosure statement in each case has to be separate. The pointing out memo is in the nature of disclosure and exact words of the accused has to be recorded as in the case of panchnama and the law in this regard is already discussed above and laid down in citation titled Rajesh and Anr. Vs. State of M.P. (2023) 15 SCR 1 (2023) INSC 839 (Coram 3) (supra) and also in citation titled Boby Vs. State of Kerala in Criminal Appeal No. 1439 of 2009 (supra). Hence the pointing out memo of Kishor Communication does not help the case of the prosecution when the same is not prepared in accordance with law.
95. The seizure memo of mobile Ex.PW35/N=Mark A at page no.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 95 of 1741713 of document file. PW-3 in examination-in-chief dated 11.12.2014 at page no. 2 (page no. 709 of case file) has deposed that at the time of arrest of accused no. 4 Sandeep a black colour bag was on his shoulder. Thereafter they all returned to Maurice Nagar office. After arrest of accused no. 4 vide memo Ex.PW3/C the search of his bag was conducted. The search was therefore conducted at Operation Cell Maurice Nagar from which one mobile phone and one SIM card was recovered and as per case of prosecution this mobile phone and SIM was used to make ransom call. PW-35 in his examination-in-chief dated 15.09.2016 at page 3 (page no. 1031 of case file) has deposed that after arrest the accused no. 1 was brought to Operation Cell PS Maurice Nagar. Hence it is argued that the search of the bag was made after bringing the accused at Operation Cell Maurice Nagar and not at the spot and the investigating agency had implanted the mobile phone and SIM on the accused no. 1 Gautam. It is argued that the personal search of accused no. 1 was already taken at the spot and the police already knew that accused no. 1 has no article with him like mobile phone or SIM. PW-33 in cross- examination dated 19.02.2019 at page 2 (at page no. 1009 of the case file) has deposed that he is not aware about the make of mobile phone or its recovery. No public person was joined at the time of arrest of accused no. 4. He was present and he does not remember whether Sunny Medicos was open or close at that time. He does not remember whether anybody except police officer was present at the time of arrest. It is deposed that accused no. 4 Sandeep was arrested on 23.09.2013 about 5 PM or 5:30 PM or 6 PM on that day. He does not remember the colour of bag containing mobile phone or make of mobile phone. He does not remember about the service provider of the SIM.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 96 of 17496. PW-48 at page no. 1269 of case file in examination-in-chief dated 02.03.2022 has deposed that the red and black colour mobile phone of make Santosh with one battery and SIM card of Idea bearing no. 89910434061318973942H2 and the mobile phone and battery with SIM card of Idea is Ex.PY10(colly) was recovered from accused no. 4. PW-35 has deposed at page no. 1031 of case file in his examination-in-chief dated 15.09.2016 that after arrest the accused no. 2, 3 and 4 all were brought to Operation Cell PS Maurice Nagar. The personal search was made of accused no. 4 vide Ex.PW35/H and his disclosure statement is Ex.PW35/J. The personal search memo of accused no. 4 is at page no. 1667 of document file which does not bear signature of accused no. 4 but it bears signature of accused no. 3 and it is argued that this shows that every thing was implanted later on and nothing was recovered from accused no. 4. It is argued on behalf of accused no. 4 that the bag was seen with accused no. 4 at Sunny Medicos where personal search was also conducted vide Ex.PW35/H. Thereafter accused no. 4 was brought to Operation Cell, PS Maurice Nagar. The arrest memo of accused no. 4 is Ex.PW35/C dated 23.09.2013 shows arrest at Operation Cell, North Maurice Nagar. To the contrary PW-37 at page no. 4 of his examination- in-chief dated 15.04.2017 has deposed that accused no. 4 was apprehended at the shop Sunny Medicos and thereafter they had returned to the office of Operation Cell at Maurice Nagar.
97. Ex.PW35/H is personal search memo of accused no. 4 Sandeep whereas it bears signature of accused no. 3 Mukesh which shows that the investigation was made to hurry up the matter and accused SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 97 of 174 no. 4 was not present at the time of preparation of personal search memo Ex.PW35/H and that accused no. 3 was present is also doubtful in view of inconsistencies in evidence of prosecution.
98. It is submitted by the ld. Counsel for accused no. 4 Sandeep that the seizure memo at Sunny Medicos is dated 26.09.2013 whereas at the shop of Sunny Medicos the IO had reached on 23.03.2023. PW-35 in his cross-examination dated 23.08.2019 at page 4 has deposed that at the time of arrest of accused no. 4 the shop M/s. Sunny Medicos was open and at page 5 it is deposed that the shop M/s. Sunny Medicos was closed by investigating officer and the keys were retained by investigating officer. The investigating officer had seized the tablets from the shop of accused no. 4 Sandeep. It is submitted that the IO had went to the shop of accused no. 4 Sandeep on 23.09.2013 and the keys were already seized by the IO on the said date.
99. The pointing out memo of Dimple Telecom is Ex.PW3/F from where the SIM card was purchased and it is deposed by PW-3 at page no. 4 of his examination-in-chief dated 11.12.2014 that the said memo was prepared at the instance of accused no. 3 Mukesh. It is deposed by PW-3 at page 4 of his examination-in-chief that accused no. 1 had purchased the SIM card and not accused no. 3. It is submitted that at page no. 3 of cross-examination of PW-3 dated 23.02.2015 (page no. 719 of case file) it is deposed that they remained at Nala for about 15-20 mins. Whereas PW-35 at page no. 1051 of case file and page no. 2 of his cross- examination dated 23.07.2019 has deposed that the proceedings at Nala had consumed about 2 or 2½ hrs. The PW-3 in cross-examination at page SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 98 of 174 4 dated 23.02.2015 (page no. 721 of case file) has deposed that he is illiterate and his wife was with him who can read and write and at page no. 725 of case file it is deposed by PW-3 that whenever he signed the document then the said document were signed by him which were read over to him by his wife. The wife of PW-3 was not present when pointing out memo of mobile shop of Dimple Telecom was prepared vide Ex.PW3/F though PW-3 has signed the said memo nor it is written in the memo that it was read over to PW-3 by the IO or his wife before signing it.
100. The IO has not deposed that he has read over to PW-3 his witness of pointing out memo of Dimple Telecom shop and in what language he had explained it.
101. PW-35 in cross-examination dated 23.08.2019 at page 4 has deposed that at the time of arrest of accused no. 4 Sandeep the shop M/s. Sunny Medicos was open whereas PW-48 in cross-examination dated 18.03.2023 has deposed at page 2 that on 23.09.2013 at about 4:30 PM when he had reached the place where accused no. 4 Sandeep was apprehended then at that time shop of accused no. 4 Sandeep in the name of Sunny Medicos and the clinic of Dr. Rajan was closed. At page 3 it is deposed that no document was prepared nor any statement of witness was recorded at the place of apprehending the accused no. 4 Sandeep. Hence the various discrepancies are seen in preparation of pointing out memo, seizure memo, disclosure statement including the place where the accused were arrested. In such view of the matter when the investigation officer had prior information of such search of accused and articles then SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 99 of 174 it was incumbent upon him to join public witness. He had sufficient time to join public witness which he did not join and keeping in view the above discrepancies this makes the case of the prosecution doubtful as to arrest, seizure and disclosure. The relevant citation titled Mustakeen @ Bhura vs. State (Govt. of NCT Delhi) on 2 nd November, 2020 in CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020 at para no. 56, 62, 63, 65, and 69 are reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand on its own legs and cannot draw strength from the lacuna in the defence case. The appellant may have taken a wrong defence, but it was for the prosecution to prove its case. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", Criminal Appeal No. 745 of 1983 decided on 17.07.1984 by the Supreme Court of India it has been held that the absence of explanation and /or post explanation, or a false plea taken by an accused was not sufficient to convict the accused. It was observed in this case that "it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence". This is trite law and no decision has taken a contrary view. What some cases have held is only that:
"where various links in a chain are in themselves complete, then a false plea for a false decence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 100 of 174 his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad U/s 114 of the Indian Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.
63. In the instant case, we have already observed hereinabove in the judgment that PW 11 Ct. Kuldeep who has been projected as an eye witness by the IO of this case, is not an eye witness and has been planted in order to "solve" the case. Therefore, we have find it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses. Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 101 of 174 is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114
(a) of the Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of the Evidence Act as the possession, if any, cannot be said to be recent possession.
Therefore, if the prosecution has not been able to prove that the sum of Rs. 70,000/- which according to the prosecution was allegedly recovered from the appellant Mustakeem, was the looted amount, the appellant cannot be convicted with the crime by raising presumption U/s 114 (a) of the Indian Evidence Act.
102. In view of above contradictions it is desirable that at each time the recovery was allegedly effected during search and seizure the investigating agency should have joined public witness/respectable inhabitants of the society failing which doubt has arisen in respect of such arrest, search and seizure of the case of the prosecution.
103. PW-48 in cross-examination dated 21.03.2023 at page 1 has deposed that the bag from accused no. 4 Sandeep was taken into possession at the place of his apprehending. Ld. Counsel for the accused SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 102 of 174 no. 4 has pointed out that when the bag was already recovered from accused no. 4 at the place of his arrest then police had nothing to recover from the alleged disclosure statement made by accused no. 4 Sandeep. Other than this it is pointed out that the signature on disclosure statement does not appear of accused no. 4. However merely by naked eye it cannot be examined whether the signature does not pertain to the same person moreso in a criminal case when accused may be doing several acts to commit and omit the offence.
104. As per the above deposition of PW-48 when the bag was already taken into possession by the IO at the place of apprehending the accused no. 4 Sandeep and his personal search was also conducted at that place then there was no reason to inspect later on the said bag possessed at the spot. It had to be inspected and seizure memo must have been prepared only at the spot. Without following the settled rules the IO had brought the accused and the bag at Operation Cell of PS Maurice Nagar and has shown recovery in the said bag against accused no. 4 at the said place. Admittedly as per deposition of PW-48 above no public witness was asked to join the investigation at that time. The above discrepancy in investigation requires that public witness should have been joined at the time of apprehending the accused and during search and seizure against them and non-joining of such public witness creates doubt in the case of the prosecution regarding such recovery of mobile phone or SIM card from the bag of accused no. 4 Sandeep. The investigating agency cannot seize the article at one place and make search of those articles at a totally different place.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 103 of 174105. PW-19 Sh. Kishor at page 3 of his cross-examination dated 23.02.2016 has deposed that he did not take signatures of the customers on the bill book. It is argued on behalf of accused no. 4 that the customers could not be identified by PW-19 therefore he could not identify accused no. 4. PW-19 is running mobile shop in the name of Kishor Communication at main road, Nathupura.
106. It is deposed by PW-39 in cross-examination dated 08.09.2017 at page no. 2 that he does not know from whom IO made inquiry regarding ownership of Krishna Communication. When they had reached at the said shop with accused no. 4 Sandeep and at that time the shop of Krishna Communication at Nathupura was closed.
107. PW-46 Sh. Naresh Kumar in cross-examination dated 25.03.2022 at page 4 was shown Ex.PW35/B in reference to disclosure statement recorded by first IO SI Rajesh made by accused no. 1 Gautam Jain who was arrested on 23.09.2013. It is admitted as correct by PW-46 that the name of accused Sandeep is not mentioned in the said disclosure statement. The DD No. 2 dated 24.09.2013 which is part of Ex.PW37/DA and separately marked as Mark Q does not mention name of accused no. 4 Sandeep as accused which is admitted by PW-46 at page 3 of his same cross-examination. It is submitted by the ld. Counsel for accused no. 4 Sandeep that the public person were not joined by the IO during arrest and search of accused Sandeep. PW-3 in cross-examination dated 23.02.2015 at page 2 has deposed that some public person of neighbourhood had gathered at the time of apprehension of accused no. 4 Sandeep when accused no. 4 was getting down from the shop after SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 104 of 174 closing it. The disclosure statement of accused no. 1 Gautam Jain at page 1669 of case file is referred which is Ex.PW35/B.
108. Ex.PW48/DX5 which also contains Mark Q is dated 24.09.2013. It is register no. II the station daily diary at serial no. 2 it records name of IO Insp. Paramjeet Singh. In the substance of report it does not mention name of accused Sandeep @ Sunny till 1:00 PM in the night. It is submitted by the ld. Counsel for accused no. 4 Sandeep that till that time accused no. 4 was not arrested by the police. It is pointed out that to the contrary the arrest memo, personal search memo and disclosure statement of accused no. 4 were prepared on 23.09.2013. It is argued that arrest of accused on 23.09.2013 is illegal or that no such arrest was made of accused no. 4 on 23.09.2013 and therefore the alleged recovery shown to be made from accused no. 4 Sandeep is illegal recovery which does not stand and cannot be relied upon. It is argued that prosecution has prepared a false case of recovery against the accused no.
4. PW-46 in his cross-examination dated 25.03.2022 at page 2 has deposed as correct that arrest memo of accused no. 4 Sandeep Ex.PW3/C mentions his arrest at 5:45 PM on 23.09.2013 in the Operation Cell, Maurice Nagar, Delhi. However as per Ex.PW48/DX5(page 1521 of case file) the accused no. 4 was not arrested till 1:00 PM on 24.09.2013. PW-37 SI Rajesh Kumar in his cross-examination dated 06.07.2017 at page 2 when confronted with DD No. 2A dated 24.09.2013 in Ex.PW48/DX5 has admitted that it mentions his name. However he does not remember that how many accused person were with them at that time and he cannot tell if accused no. 4 Sandeep was arrested by Insp. Parmajeet Singh at that time or not. It is deposed that probably 4 accused SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 105 of 174 persons were with them. According to ld. Counsel for accused Sandeep the arrest memo Ex.PW3/C is manipulated to show simultaneous preparation and this document also does not bear signature of PW-46 ACP Naresh Kumar. Though at that time ACP Naresh Kumar was part of the investigating team. PW-46 in cross-examination dated 25.03.2022 at page 7 has deposed that after apprehension of accused no. 3 Mukesh and accused no. 4 Sandeep they returned to Operation Cell, Maurice Nagar at about 4:45/5 PM. It is submitted that as per Ex.PW3/C accused no. 4 Sandeep was arrested at 5:40 PM.
109. Had the accused no. 4 Sandeep was arrested on 23.09.2013 then there was no reason with the IO not to record the same in Ex.PW48/DX5. DD no. 2A dated 24.09.2013 part of Ex.PW37/DA = Mark Q does not record name of accused no. 4. The above circumstance creates doubt about the time and date of arrest of accused no. 4 by 24.09.2013. Hence there is merit in the submission of ld. Counsel in the infirmities pointed out in search and seizure made from accused no. 4 or pointing out of shop of Krishna Communication by accused no. 4. The seizure of bowl and strip of tablets from the shop of Sunny Medicos has become doubtful in absence of joining of public witness.
110. PW-47 Ms. Poonam Sharma from FSL at page 2 has deposed that the DNA profiles could not be generated due to degradation of exhibits and due to presence of inhibitors.
111. The PW-28 at page 4 of his examination dated 29.03.2016 has deposed that the blood gauze piece was sent to FSL on 16.12.2013 which SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 106 of 174 is after about 03 months. It is argued on behalf of accused no. 4 that by such late sending of the blood the sample would have been spoiled and there is no explanation by the prosecution for causing such delay.
112. Merit is found in the above submission in view of citation titled Ravi Kumar Sonu and Ors. Vs. State (Delhi) 2013(2) JCC 1394 from Hon'ble High Court of Delhi wherein at para no. 35 it is laid down that when the exhibits have been sent to the FSL after almost a month of incident in absence of any explanation in delay in sending the exhibits or the reason why no steps were taken then in case of circumstantial evidence the lacunae left by the investigating agency must necessarily operate to the benefit of the accused. In the present case the sample was sent after about period of more than two and a half months and there is no explanation for sending the samples with such delay to FSL to which accused is held entitled to benefit of doubt as to correct seizure of sample and sampling. The relevant para is reproduced hereasunder:
35. The crucial question which arises in the instant case therefore is whether there is a possibility of any person other than the accused persons being the author of the crime in the facts and circumstances of the case. It cannot be lost sight of that the deceased was a TSR driver who drove TSR during the night shift.
It stands to reason that many a person boarded his TSR at different hours of the night. If the testimony of the prosecution witnesses is to be believed, he (the deceased) invariably reached his house in the early hours of the morning. Thus, even assuming that PW9 Azad had seen the accused persons boarding his TSR at 7.30 p.m., it cannot be said with any degree of certainty that they were the last persons to see the deceased alive and the deceased met with his end at their hands. The possibility cannot be ruled out that in the course of the night other persons would have boarded the TSR of the deceased. No enmity has been ascribed to the accused persons as the motive for the crime. In fact, the deceased was not known to the accused at all or even to PW9 Azad Singh, who admittedly was unable to even name the accused. The prosecution€s case is that it SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 107 of 174 was with the intent of robbery that the accused persons had boarded the TSR of the deceased but this, as noted above, does not stand the test of scrutiny as the prosecution witnesses practically in one voice have stated that the TSR was seen by them at the Police Station much prior to the arrest of the accused persons.
113. As per deposition PW-18 Ct. Mani Ram the key of the shop Sunny Medicos was brought by accused Sandeep which were hanging on the nail on the wall and the keys were brought on 26.09.2013. The keys were deposited in Malkhana on 26.09.2013. PW-33 to the contrary has deposed that the accused no. 4 was arrested on 23.09.2013 at about 5 PM. However this fact of arrest is not recorded in Ex.PW48/DX5 dated 24.09.2013 and at about 1 AM on 24.09.2013 arrest only of accused no. 1, 2 and 3 is shown under the heading substance of report and arrest of accused no. 4 is not shown. It shows that by this time accused no. 4 was not arrested by the police whereas PW-33 has deposed that accused no. 4 was arrested on 23.09.2013. PW-33 is not aware about make of mobile phone or its recovery though he was part of investigating team. The seizure memo of keys was prepared at Sunny Medicos on 26.09.2013 by PW-48 whereas as per deposition of PW-18 such keys were seized from the house of accused no. 4. It creates doubt that how the keys were seized by the police and how search and seizure of the shop of Sunny Medicos was conducted by the police. The seizure has to be exactly prepared at the place where the search is conducted and it had not to be prepared at a different place. However in case of large amount of goods short notes can be prepared on the basis of which the proper memo can be prepared at the later stage which is not the case here in the present case. When the personal search memo of accused no. 4 bears signature of accused no. 3 and not of accused no. 4 shows on the face of it that the investigation SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 108 of 174 process was not followed carefully and it creates doubt in the manner investigation was conducted. Hence the search of Sunny Medicos, the place of arrest of accused no. 4, the seizure of keys of Sunny Medicos and a recovery from the shop of Sunny Medicos becomes doubtful. As per deposition of PW-35 IO had already seized the keys of Sunny Medicos on 23.09.2013. Hence there are numerous contradiction in the prosecution witness in the manner accused no. 4 was arrested and the incriminating articles were seized from him. The above statement of witness though contradictory is bound on the prosecution in view of citation titled Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi) AIR 2005 SC 2804 at relevant para no. 34, 35 and 36 wherein it is laid down that when the witness did not support the case of the prosecution who was not declared hostile then it is open to the defence to rely on such evidence and it was binding on the prosecution when it supports the defence. The relevant para is reproduced hereasunder:
34. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW1. He, however, did not support the prosecution. The prosecution never declared PW1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.
35. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution.SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 109 of 174
36. In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to police in which police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, accused can rely on that evidence.
4. RECOVERY OF SLIPPER
114. The prosecution has claimed recovery of slipper from accused no. 2 and accused no. 3. The seizure memo of slipper is Ex.PW3/H dated
25.09.2013 at page no. 1741 of the case file. PW-3 Sh. Kishan Lal in his examination-in-chief dated 11.12.2014 at page 3 and 4 has deposed that on 25.09.2013 when he again joined the investigation then Insp. Naresh Kumar with other police staff reached at drain near Nanglipuna with accused no. 1 and accused no. 4 where one slipper of grey colour of his son was recovered from the bushes near drain at the instance of accused person. Another slipper was not found. It is noted that the place from where the slipper was found was a public place and the same witness has already visited there on 24.09.2013. In cross-examination dated 23.05.2015 at page 2 (page no. 747 of case file) it is deposed by PW-3 that he had not stated before the police about the description of the slipper which was worn by his son. It is admitted as correct that the slipper Ex.P1 is easily available in the market and there was specific mark of identification of the slipper. It is admitted as correct that the disclosure statement of accused no. 2 and 3 does not bear his signature. The slipper of right foot of grey colour is Ex.P1 on record. The slipper was sealed with the seal of 'PS'. However it is not stated in Ex.PW3/H that after sealing to whom the seal was handed over. PW-29 HC Chander SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 110 of 174 Pal in his examination-in-chief dated 29.03.2016 at page 1 has deposed that on 25.09.2013 he alongwith IO, Ct. Devender, Ct. Krishan, Ct. Jagdish, all three accused person and complainant had left the PS in vehicle for Nanglipuna near Ganda Nala and at the instance of accused no. 2 Sandeep one slipper of child was recovered. At page 2 it is admitted by PW-29 as correct that in sezure memo Ex.PW3/H the fact regarding handing over the seal to PW-35 is not mentioned. No handing over memo was prepared. No photograph of place of recovery of slipper was taken. At page no. 3 in cross-examination it is deposed that the site plan of place of recovery was also not prepared. The complainant Kishan Lal had not told the description, including make, colour and size of slipper of the child in his presence. The slipper was old one. He cannot tell the size of slipper but it was small size. It is admitted as correct that it was a busy road. However PW-29 cannot comment whether such type of slippers are easily available in the market. It is pointed out by ld. counsel for accused that no TIP of slipper was conducted. It is noted that it was incumbent on the investigating agency to record the details of possession of the deceased Master Jatin Dhingra and after that if recovery was made on the basis of such details then TIP was necessary for its correct identification. Without TIP of such commonly available article in the market the same cannot be fastened with the facts of the present case or with the accused. The same cannot be recovery of incriminating article under Section 27 of Evidence Act, 1872. PW-48 in cross-examination dated 13.01.2023 (pre lunch) at page 5 (page no. 1359 of case file) has deposed that in pursuance of disclosure statement of accused they alongwith accused no. 1, 2 and 4 went to Nanglipuna drain at the same place where dead body was recovered. The complainant was accompanying them. While SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 111 of 174 searching in the bushes at the instance of accused no. 2 one grey colour hawai slipper was found and it was identified by PW-3 that it belongs to his son. No site plan was prepared of the spot nor any photograph was taken. PW-48 in cross-examination dated 31.05.2024 at page 4 has deposed that he does not remember whether Kishan Lal had informed him about the make, colour, size or any specific mark on the slipper worn by his son Master Jatin Dhingra. In the supplementary statement of PW-3 dated 24.09.2013 he did not state about any make, colour, size or any specific mark of slipper worn by his son Master Jatin Dhingra. Ld. Counsel for accused has relied on citation titled Ravi Shankar Tandon Vs. State of Chhattisgarh 2024 (SC) SCR 558 at para no. 10, 11, 12, 13, 14, 21 and 22. The relevant para of which is reproduced hereasunder:
10. It is settled law that suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
11. In the light of these guiding principles, we will have to examine the present case.
12. The prosecution case basically relies on the circumstance of the memorandum of the accused under Section 27 of the Indian Evidence Act, 1872 (for short "Evidence Act") and the subsequent recovery of the dead body from the pond at Bhatgaon. The learned Judges of the High Court have relied on the judgment of this Court in the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru2. The High Court has relied on the following observations of the said judgment:
"121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 112 of 174 course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] : (AIR p. 70, para 10) "clearly the extent of the information admissible must depend on the exact nature of the fact discovered" and the information must distinctly relate to that fact.
Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para 10) "Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused."(emphasis supplied) We have emphasised the word "normally" because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words:(AIR p. 70, para
10) "If this be the effect of Section 27, little substance would remain in SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 113 of 174 the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect."
Then, Their Lordships proceeded to give a lucid exposition of the expression "fact discovered" in the following passage, which is quoted time and again by this Court: (AIR p. 70, para 10) "In Their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (emphasis supplied)
128. So also in Udai Bhan v. State of U.P. [1962 Supp (2) SCR 830 : AIR 1962 SC 1116 : (1962) 2 Cri LJ 251] J.L. Kapur, J. after referring to Kottaya case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] stated the legal position as follows: (SCR p. 837) "A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence." The above statement of law does not run counter to the contention of Mr. Ram Jethmalani, that the factum of discovery combines both the physical object as well as the mental consciousness of the informant accused in relation thereto. However, what would be the position if the physical object was not recovered at the instance of the accused was not discussed in any of these cases."
13. As such, for bringing the case under Section 27 of the Evidence Act, it will be necessary for the prosecution to establish that, based on the information given by the accused while in police custody, it SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 114 of 174 had led to the discovery of the fact, which was distinctly within the knowledge of the maker of the said statement. It is only so much of the information as relates distinctly to the fact thereby discovered would be admissible. It has been held that the rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.
14. We will have to therefore examine as to whether the prosecution has proved beyond reasonable doubt that the recovery of the dead body was on the basis of the information given by the accused persons in the statement recorded under Section 27 of the Evidence Act. The prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered.
21. A perusal of the evidence of Narendra Kumar (PW-2) read with that of Ramkumar (PW-5) would clearly reveal that the police as well as these witnesses knew about the death of Dharmendra Satnami occurring and the dead body being found at Bhatgaon prior to the statements of the accused persons being recorded under Section 27 of the Evidence Act. All the statements are recorded after 10:00 am whereas Ramkumar (PW-2) stated that at around 08:00 am, police informed him about the accused persons killing the deceased and thereafter they going to Bhatgaon. Ramkumar (PW-5) also admitted that he arrived at village Kunda and on his arrival, he was informed by his brother-in-law and nephew about the murder which was done by the accused persons.
22. We therefore find that the prosecution has utterly failed to prove that the discovery of the dead body of the deceased from the pond at Bhatgaon was only on the basis of the disclosure statement made by the accused persons under Section 27 of the Evidence Act and that nobody knew about the same before that. It is further to be noted that Ajab Singh (PW-18) has clearly admitted that he had signed the papers without reading them and that too on the instructions of the police.
115. The recovery of slipper on joint pointing out memo of accused no. 2 and 3 in itself is inadmissible under Section 27 of Indian Evidence SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 115 of 174 Act, 1872 for the reason that the joint pointing out memo is not admissible under law and for another reason that the panchnama has not been prepared in accordance with settled law discussed in this judgment. The PW-3 had not stated before hand to the police about the description of slippers worn by the deceased. It was incumbent on the part of prosecution that such information must have been received before hand so that the TIP of the article could be conducted through PW-3 which is not done in the present case. It is admitted by PW-3 as correct that slipper of right feet Ex.P1 is easily available in the market and there was no specific mark of identification on the slipper to be identified with the deceased. PW-3 could not tell the size of the slipper. The place where the slipper was recovered is a busy road. The slipper is therefore commonly available article. The slipper was recovered at the same place where the dead body was recovered. No site plan of recovery was prepared nor any photograph was taken. Hence the recovery was from open public place which is open to all and visible to all and no specific exclusive knowledge could be imparted to the accused to the recovery of such slipper. The body was recovered on 23.09.2013 whereas the slipper was recovered on 25.09.2013. Hence the recovery of above slipper cannot be imputed to the special knowledge of the accused person under Section 27 of Indian Evidence Act, 1872 and therefore it is not seen as incriminating circumstance against the accused person.
5. RANSOM CALL
116. The CDR of mobile no. 8744806631 allegedly used by the accused person for making ransom call is brought on record by PW-41 SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 116 of 174 for the period from 18.09.2013 to 22.09.2013 and the same is Ex.PW41/A. It is deposed that the same is handed over by IO to PW-41. The exhibiting of documents is objected that the same is fabricated and not proved as per law and nor it was authenticated as per law. It is submitted that the authorized person has not certified the said document. However it is seen that the said document is duly stamped and attested and no question regarding this is shown to have been asked. There does not appear any reason to see that the document is fabricated. Hence the above objection is rejected except the fact that this document has to be proved as per Evidence Act, 1872. The certificate under Section 65B in this respect is not filed. It is not proved by PW-41 that he had taken print out of this document. Other than this it is pointed out by the ld. Counsel for the accused that there was no ransom call at 6 PM in the above exhibit. All calls are shown to have been made between 1:33 PM to 5:44 PM by this mobile number and the total calls made are 08 in number having the same IMEI number. Ld. Counsel for the accused has referred to Ex.PW3/B at page 1563 of case file which is DD No. 30A dated 21.09.2013. In the first two lines it is mentioned that complainant came to PS at 6:35 PM and lodged the missing complaint of his son. The PW-3 in cross-examination dated 23.02.2015 has deposed that he alongwith his daughter and daughter-in-law had gone in search of deceased in the colony before they went to PS at 6:35 PM. In the same examination-in- chief of the page PW-3 has deposed that he and his wife had gone to PS Burari to lodged the missing report. It is deposed in examination-in-chief dated 22.05.2015 it is deposed that till night the PW-3 alongwith his wife/PW-6 had remained at PS on 21.09.2013. It is deposed by PW-3 on second page of cross-examination dated 22.05.2015 as correct that till SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 117 of 174 6:35 PM on 21.09.2013 they had not received any ransom call. Hence it is argued on behalf of accused no. 2 that when the wife of PW-3 had remained at PS from 6:35 PM till night and before that no ransom call was received which means there was no ransom call during the entire duration from the accused person. It has come in evidence that PW-3 and PW-6 had went to PS to lodged the complaint which is DD No. 30A/Ex.PW3/B. Other than this it is submitted that the complaint Ex.PW3/B and the FIR does not mention anywhere that any ransom call was received by that time. It is argued that by not mentioning this fact in the complaint Ex.PW3/B and FIR Ex.PW3/A which is registered on the basis of this complaint shows that atleast till 6:35 PM there was no ransom call was received. The PW-6 in cross-examination dated 17.07.2015 at page 3 has deposed that her first statement was recorded at PS Burari on 21.09.2013 between 6:30 PM to 6:45 PM in the evening. The statement of daughter-in-law of sister of PW-6 namely Ms. Simran was also recorded which means it was recorded between 6:30 PM to 6:45 PM. In further cross-examination PW-6 has controverted her husband PW-3 that she did not accompany her husband when he went to lodge missing report at police station. Whereas as per above deposition PW-3 and PW-6 were present at PS after 6:30 PM together at the same time. It is deposed that Ms. Simran had gone alongwith her husband. At page 2 of examination-in-chief of PW-6 dated 17.07.2015 it is deposed that she had informed her husband regarding receipt of ransom call when her husband had returned from PS. However PW-6 has deposed in first page of her examination-in-chief that at about 5:15 PM that she had received a call on her mobile no. 9718703685 for ransom and call was received from the mobile no. 8744806631. It is argued that the PW-3 and PW-6 had SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 118 of 174 remained at PS all night and when the ransom call was not received till 6:30 PM and after that PW-3 and PW-6 had remained at the PS then no such ransom call was received both PW-3 and PW-6 before 6:30 PM. It is argued that hence Ex.PW41/A and the ransom call are not proved on record. It is submitted that in exhibit Ex.PW41/A it does not record that who is owner of mobile number of the caller. The relevant para no. 60-61 of case titled Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018) Delhi 145 are reproduced hereasunder:
60. The fourth factor that makes the prosecution case improbable is the statement of PW1 himself who states in his cross-examination that "I did not receive any ransom call after 6.00 am on 31 st December, 2010, after the discovery of the dead body." Although this witness was recalled by the prosecution more than a year thereafter to clarify that he had made an error about the date of discovery of the dead body by stating that it was in the early hours of 31st December, 2010 whereas it was in the early hours of 1st January, 2011, there was no clarification by this witness of the above statement that he did not receive any ransom calls after 6 am on 31st December, 2010.
61. This statement therefore falsified the document Ex.PW11/D which shows seven ransom calls having been made between 1.32 pm and 6.13 pm on 31st December, 2010. All the above factors make it extremely doubtful that the prosecution was able to prove that it was A2 who made the above seven ransom calls to PW1 on 31st December, 2010. The CAF of A-2 shows that the SIM 2208 was activated on 1st November 2010 itself. This further complicated the issue as regards the CDR of the said phone and its linking to the ransom calls made on 31st December 2010.
117. There is merit in the above submission of ld. Counsel for accused. As per deposition of PW-3 the ransom call was not received at 6:35 PM on 21.09.2013 and when PW-3 and his wife PW-6 had remained at PS after 6:35 PM till night then the prosecution has failed to prove that such ransom call was received by PW-3 or PW-6 after or before 6:35 PM.SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 119 of 174
Further had the call has been received before 6:35 PM then this detail must have been mentioned in FIR/Ex.PW3/A or the complaint Ex.PW3/B. In absence of same it cannot be said that by such time ransom call was received by PW-3 or PW-6 or by Ms. Simran. The ownership of mobile phone on which ransom call was received is also not proved on record and therefore doubt has arisen in the case of the prosecution that the ransom calls were received by PW-3 or PW-6 as alleged through mobile phone call.
118. It is argued by ld. Counsel for accused no. 2 that CDR of ransom call when not produced in evidence has its consequences as laid down in citation titled Manish Sharma @ Pappan case (supra) at para no. 47 to 59. PW-37 in cross-examination dated 05.07.2017 at page 2 has deposed that he did not collect any document indicating authorisation or agency in SIM card sale from Shyam Sunder @ Sunny who was employee of M/s. Dimple Telecom. Mr. Harish was owner of the shop and he was doing only mobile repairing job. PW-37 does not remember at page 3 if he had obtained CDR or CAF of the relevant period in respect of phone number 9718703685. It is further deposed that he did not seize mobile phone instrument on which ransom call was received. He does not remember that who was the service provider of the phone number on which the ransom call was received nor it is disclosed that whether it was pre-paid or post-paid mobile phone connection. He cannot tell the name of subscriber of phone number on which the ransom call was received. PW-48 at page 5 of cross-examination dated 29.05.2024 has deposed as correct that Insp. Naresh Kumar did not inform him that anyone had discussed with him about voice recording at the time of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 120 of 174 activation of mobile phone. It is deposed by PW-37 in cross-examination dated 05.07.2017 at page 2 that he had not collected any document indicating authorisation or agency in SIM card sale from Shyam Sunder @ Sunny who was employee in M/s. Dimple Telecom. He does not know whether the name of the shop was M/s. Dimple Telecom. He does not remember the name of proprietor or owner of M/s. Dimple Telecom. Ex.PW7/1 is delivery challan/invoice from Idea Cellular Ltd. to Aditya Enterprises regarding delivery of 1868 SIMs at page no. 1767 of case file. The relevant para no. 47 to 59 are reproduced hereasunder:
47. It is strange that the Investigating Officer („IO) did not consider it necessary to collect the CDRs of the phone of PW-1 i.e. 4771 for the entire period till 31st December, 2010 in order to verify if indeed it received ransom calls on the aforementioned three occasions, as claimed by PW-1. The only time the police is supposed to have done something in this regard was on 30th December, 2010 when the police started intercepting the calls received on the phone of PW-1.
48. It is claimed that "the parallel line of the complainants phone was taken on the mobile phone number 9716389553 (hereafter „9533) of PW26 SI Amarjit Singh." Six ransom calls were received on the mobile phone 4771 on 31st December, 2010 and are sought to be shown in Ex.PW11/D. All these seven calls are shown to have been made from the mobile phone 2208. The timings of these seven calls were 1.32 pm, 1.33pm, 1.44 pm, 3.14 pm, 4.52 pm, 5.32 pm and 6.13 pm.
49. This appears to be the truncated CDRs of one day of the mobile number 2208. Going by this CDR, it would appear that on the entire day i.e. 31 st December, 2010, from mobile number 2208 only six calls overall were made and all those six calls were made only to mobile number 4771. This seems improbable. It was incumbent on the prosecution to produce the entire CDR of 2208 for a longer period. That would have shown whether the mobile SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 121 of 174 number 2208 had been used to make a ransom call on the mobile number 4771 even prior to 31st December 2010.
50. Further, it was important for the prosecution to have picked up the CDRs of 4771, again to cross verify if there were earlier ransom calls made to 4771 from 2208. There is no valid explanation given by the prosecution for its failure to carry out this obvious step in order to verify that the ransom calls were in fact made on the mobile bearing number 4771.
51. The explanation given by the prosecution is that from the CDR for the mobile connection ending in 2208, it was seen that calls were made to mobile number ending in 4771 on 31st December, 2010. That similar calls were made from the mobile phone number 6038 standing in the name of A2 on 9th December, 2010 might show that the mobile phone of the father of A- 2 was in fact being used by A-2. However, this does not show that it is A-2 who was making even the earlier ransom calls to the number 4771. Instead of this laborious way of establishing the link, the simpler way would have been to get the CDRs of 4771 itself for the entire month of December, 2010.
52. Therefore, contrary to what the trial Court appears to have concluded, there is something to be said for the fact that the mobile phone 2208 was in fact not allotted to either A-1 or A-2, but to one Anjum Alam who was not even questioned by the police. How A-1 could have caught hold of the above SIM card from Anjum Alam had to be explained by the prosecution.
53. The above question attains significance on account of two important factors, which again have not been noticed by the trial Court. PW-2 was put forth by the prosecution to prove that A-2 had purchased a new SIM card of Vodafone from him. However, this witness turned hostile. He simply stated that he did not remember the SIM number or the date on which it was activated. In fact this number 2208 was already activated on 11 th December, 2010 i.e. prior to the calls made on 31 st December, 2010. Further, this witness stated "I do not also remember that accused Manish had come to my shop on 31st December, 2010 at around 11 am." In his SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 122 of 174 further cross- examination on behalf of A-2, PW-2 stated that he had no proof to show that he had sold the concerned SIM to A-2.
54. The mobile phone recovered from A-2 was not having any IMEI number at all. This was plain from the recovery memo of the said mobile phone. Therefore, by merely demonstrating from Ex.PW11/D that the SIM card of number 2208 was used on a mobile instrument having an IMEI number of 9790 did not reveal that the said phone was used by A-2 to make any ransom call. The important aspect of linking A-2 to the mobile phone 2208 was overlooked by the trial Court.
55. The second difficulty, apart from PW-2 turning hostile, was the fact of the date on which A-2 was actually arrested. According to his father, who was examined as DW-1, A-2 was arrested on 30th December, 2010 itself whereas according to PW-23 he was arrested in the early hours of 1 st January, 2011. If indeed A-2 was already arrested and was with the police on 31st December, 2010, then the whole question of ransom calls having been made on 31st December, 2010 gets falsified. However, the fact is that the mobile phone was already available with A-2. If in custody, A-2 could have been asked to make calls from the mobile phone 2208 or calls were made from his phone on the phone of PW-1 i.e. 4771 at regular intervals between 1 pm and 6 pm (as reflected in Ex.PW11/D), then in the absence of the entire CDRs of number 4771 and 2208, this document becomes highly suspicious. It does not eliminate the possibility of these calls having been made after A-2 was taken into custody.
56. For the same reason, even the fact that the voice recording of these seven ransom calls matched the specimen voice of A-2 also breaks down. In this regard, it must be noticed that PW-26 claims that he could get a parallel line to that of 4771 on his mobile (Ex.PW26/E). How this could be technologically possible is not sought to be explained.
57. Importantly, when he was cross-examined by counsel for A-1, PW-26 stated "No other material except the ransom calls have been recorded in this memory card." This was unusual considering that SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 123 of 174 both PW-1 and for that matter, PW-26 would have received several calls on 31st December, 2010. PW-26 added, "I do not have any evidence to show that the memory card (Ex.P10) used exclusively in my phone for recording of ransom calls." This would imply that when the memory card was sent for examination to FSL, other calls were erased from it.
58. The FSL report has only confirmed the voice samples of these seven ransom calls as matching the voice of A2. However, it was confirmed by Dr. C.P. Singh (PW24), as stated in his report, that there were no other calls on that memory card.
59. The above evidence does not lend any assurance to the Court that in the above circumstances the mere fact that the ransom calls made on 31 st December, 2010 were shown to match the voice of A2 proves his connection with the crime and, therefore, his guilt beyond reasonable doubt.
119. PW-37 does not remember that he had collected the CDR or CAF of phone no. 9718703685. He does not remember the service provider of the said phone on which ransom call was received. He is not aware that whether the connection was pre-paid or post-paid connection nor he can tell the subscriber of the phone. This is a material fact and it was incumbent upon the prosecution to bring the best evidence to corroborate the receipt of ransom call at the said mobile phone. It is also important to note that correct custody of the mobile phone is also required to be proved on record. When the mobile phone was not in the name of PW-3 or PW-6 then how accused person will know that they have to call at such mobile number. The prosecution has not proved that in whose name this connection is. Had the custody was not proper then no call was expected to be made to PW-3 or PW-6 but to the person in whose name the SIM of the mobile was obtained. There is no evidence SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 124 of 174 on record that the accused person has knowledge that this phone number was available with PW-3 or PW-6. Hence there are missing link in the chain of circumstantial evidence to connect the ransom call to the victim with the above mobile number.
6. PURCHASE OF MOBILE PHONE BY ACCUSED FOR COMMITTING RANSOM AND TIP PROCEEDINGS
120. It is argued on behalf of accused no. 4 that invoice no. 849 dated 16.09.2013 pertains to this case. The record shows that invoice no. 850 dated 11.09.2013 comes before invoice no. 849 and therefore it is claimed that the correct selling of the alleged mobile phone is not proved on record. It is argued that the invoice bills were prepared incorrectly at the instance of IO. The said dates in invoice are admitted by PW-19 in cross-examination dated 23.02.2016 at page 4. The invoice are Ex.PW19/A on the record which are two bill books. It is deposed by PW-19 at page 4 that SHO Parminder Singh has recorded his statement at PS Burari after 2-3 days of arrival of police at his shop. Whereas, at page 5 it is deposed by PW-19 that police had recorded his statement on the date of their visit at his shop and his statement was recorded at PS.
121. PW-19 had accompanied the police and the accused at PS and he had seen the accused person properly. It is argued on behalf of the accused that when PW-19 had already seen the accused person then there was no use of TIP proceeding conducted on behalf of PW-19.
122. Ld. Counsel for accused has submitted that accused no. 4 was SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 125 of 174 not produced in muffled face. In cross-examination dated 21.03.2023 PW-48 at page no. 3 has admitted as correct that name of witness/witnesses is not mentioned in the application for conducting TIP dated 27.09.2013 of the accused no. 4 Sandeep and accused no. 2 Sandeep which is Ex.PW48/D2. It is submitted that since the name of the witness is not mentioned in the TIP application the accused had no knowledge that what is the name of witness who is going to conduct TIP and therefore there was no discretion is available with the above accused in refusal of TIP and therefore the TIP proceedings are invalid in absence of such knowledge with the accused. PW-15 ld. MM had conducted TIP on application Ex.PW15/A which was moved by IO for conducting TIP.
It is submitted by ld. Counsel for accused no. 4 that correct address of the participants was not mentioned by the IO in the application with address and occupation which is in violation of Part C-identification parades, Chapter 11 Part C of Delhi High Court Rules and Orders.
122.1 It is submitted that on 24.09.2013 accused was not produced in muffled face before the Court. When the accused was produced after PC before the Court on 28.09.2013 then also accused was not produced in muffled face. It is argued that the TIP proceedings at page no. 1485 records reason for refusal for conducting TIP for accused no. 2 that the witness might have seen him in police station during his police custody. The witness who had to identify the accused no. 2 is PW-19/Sh. Kishor who was running mobile shop by the name Kishor Communication.
122.2 PW-48 in cross-examination dated 18.03.2023 at page no. 1387 of case file has deposed as correct that he has not mentioned in TIP SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 126 of 174 application Ex.PW48/D1 that the accused person were produced in muffled face. PW-19 at page 2 of his examination dated 23.02.2016 and page no. 891 of case file has deposed that he had issued receipt of purchase of mobile to the smaller boy whose name was Sandeep/accused no. 4. It is deposed that after few days the police has brought both of accused to his shop and he had identified them as the person who had purchased the mobile phone from his shop and he had given the receipt book to the police. It is argued that the accused were already shown to PW-19 before conducting TIP and therefore no adverse inference could be drawn against the accused for refusal of TIP and in any case such identification cannot be relied upon. It is further deposed by PW-19 at page 4 (895 of case file) in cross-examination that police did not call him in the PS rather police had come to his shop with the accused. SHO Parminder Singh had recorded his statement in PS Burari after 2-3 days after arrival of police at his shop. At next page it is deposed that police had recorded his statement on the date of visit at his shop and his statement was recorded in the PS. He had accompanied the police and the accused to the PS. He did not talk with the accused person but he had seen them properly. He had gone to PS at 11 AM and returned at about 5 PM from the PS. It is argued on behalf of accused no. 2 that the witness has remained with the accused in the vehicle and for about 6 hours. He was there at police station where accused were in unmuffled face. PW-19 had sufficient time to see the accused person and the TIP thereafter does not help the case of prosecution in any manner. It is argued that the refusal was done by accused no. 3 on 25.09.2013 and by accused no. 2 on 28.09.2013. The TIP of accused no. 4 was conducted on 28.09.2013 and witness had correctly identified the accused no. 4. It is argued that at page SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 127 of 174 no. 901 of case file it is deposed by PW-19 on cross-examination by ld. APP for the State that he had handed over the bill book to the police on 25.09.2013 when his statement was recorded. It is argued that on 25.09.2013 the statement of PW-19 was recorded and on the same date he went to police station with the accused no. 2 and had sufficiently seen the accused before conducting of TIP on 28.09.2013. It is deposed by PW-48 in examination-in-chief dated 13.01.2023 at page 4 (page 1375 of case file) that on 25.09.2013 PW-19 Sh. Kishor Kumar owner of Kishor Communication came to PS alongwith bill book containing bill of mobile phone sold to accused no. 2 which was seized vide Ex.PW29/A and the bill book is exhibit Ex.PW19/A carbon copy of bill no. 851 is Ex.PW19/B. The seizure memo was signed by PW-19 at point C. It is submitted that it was the same day when PW-19 had remained throughout for 6 hrs. with the police and the accused. PW-48 in cross-examination dated 23.03.2023 at page no. 1 (page no. 1399 of case file) has deposed that the bill book of Kishor Communication was taken into possession was taken by PW-48 on 24.09.2013 at PS Burari and PW-48 had went to shop of Kishor Communication on 23.09.2013. Hence the PW-48 had contradicted himself that on which date he had taken possession of bill book. Other than this the seizure memo Ex.PW29/A dated 25.09.2013 (at page no.1715 of case file) again varies with the date deposed by PW-19 and PW-48 and PW-48 has deposed on 23.03.2023 that bill book were taken into possession by him on 24.09.2013.
123. PW-48 in his deposition dated 31.05.2024 at page 3 has deposed as correct that in the carbon copy for application for PC remand for 03 days vide Ex.PW48/D1 dated 24.09.2013 he has not mentioned SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 128 of 174 that accused no. 1, 2 and 4 were produced in the Court in muffled face. It is also admitted as correct that in the order of Ld. Area MM dated 24.09.2013 it is not mentioned that accused were produced in muffled face. It is admitted as correct that when PW-48 called PW-19 Kishor Kumar in the police station then at that time all the accused persons were on police remand. It is deposed that PW-48 wanted that PW-19 identify accused no. 2 and accused no. 4.
124. It is argued on behalf of accused no. 3 that PW-12 in his cross-examination dated 26.09.2015 at page 2 (page no. 831 of case file) has deposed as correct that on 27.09.2013 on being called by police he had gone to police station where he had identified the accused Mukesh Kumar to whom he had sold the abovesaid SIM card in the name of Manoj Kumar. The TIP proceeding of accused no. 3 Mukesh are at page no. 1913 of case file dated 25.09.2013 and the reason for refusal of TIP by the accused are that his photographs were taken by the police at the police station which may have been shown to the witness.
125. It is submitted by ld. Counsel for accused no. 2 that bill no. 851 dated 16.09.2013 Ex.PW19/B mentions name of Sandeep but it does not mention name of father and therefore it has become doubtful that about which Sandeep the bill is talking about. The bill no. 852 is in the name of Kishan Lal who is complainant/PW-3 himself. It is admitted as correct by PW-19 in cross-examination as correct that bill no. 803 is blank in the bill book. It is admitted as correct that on 16.09.2013 only one bill was issued. He did not take signature of customers on bill book. The bills issued through bill book Ex. PW19/A are not shown in ledger SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 129 of 174 book/cash book for the reason that items were received from Gaffar market and only item having TIN number are shown in ledger book. Bill no. 834 to 848 were issued from another shop. It is admitted as correct that bill no. 849 is dated 16.09.2013 and bill no. 850 is dated 11.09.2013. It is argued on behalf of accused that the bill no. 850 though issued after bill no. 849 but it was issued earlier in date and therefore the bill book cannot be relied. PW-19 at page no. 4 of cross-examination has deposed that he does not know the person Anil Kumar who has purchased mobile phone on 16.09.2013. It is denied by PW-48 in cross-examination dated 23.03.2023 that in bill book Ex.PW19/A he has inserted date 16.09.2013 and name of accused no. 2 in bill no. 851 Ex.PW19/B. This has contradicted the deposition of PW-19 who had claimed at page no. 3 of his cross-examination that only one bill was issued on 16.09.2013 whereas at page no. 4 another bill was admitted in the name of Sh. Arvind Kumar dated 16.09.2013 and there is bill also in the name of accused no. 2 dated 16.09.2013 which is bill no. 851 Ex.PW19/B. Hence issuance of above bills on any particular date and to particular person has become doubtful. Bill no. 852 dated 16.09.2013 is issued in the name of Kishan Lal/PW-3. Bill no. 850 dated 16.09.2013 is in the name of one Mr. Sunny which does not bear signature. It is admitted by PW-19 as correct at page no. 6 of his cross-examination that name, parentage and address of accused no. 2 Sandeep are not mentioned on bill Ex.PW19/B. It is deposed further at page no. 7 that bill book had remained with him upto 25.09.2013.
126. PW-48 in cross-examination dated 31.05.2024 at page 3 has deposed that he cannot say whether the bill bearing serial no. 849 bears SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 130 of 174 date 16.09.2013 and he cannot say whether bill 850 bears date 11.09.2013 in carbon copy of bill book Ex.PW19/A.
127. It is submitted by ld. Counsel for accused that in deposition of PW-48 dated 21.03.2023 at page 3 the bill book Ex.PW19/A was collected by IO from Kishor Communication on 25.09.2013. It is further admitted as correct that bill no. 851 Ex.PW19/B is dated 16.09.2013. It is admitted as correct that as per said bill book the date of bill no. 849 is 16.09.2013. At page no. 4 of same cross-examination it is deposed that it is a matter of record that Ex.PW19/A the bill no. 850 is dated 11.09.2013.It is submitted that the bill no. 849 is later in date and the bill no. 850 is prior in date of preparation and therefore correct preparation of bill and bill book is doubtful in ordinary course as the preparation of bill no. 849 and 850 have to be reverse in their date of preparation in ordinary course. It is pointed out in deposition of PW-48 dated 21.03.2023 at page 3 that the bill book was collected on 25.09.2013 whereas at page 1 of cross-examination dated 23.03.2023 it is deposed by PW-48 that the bill book of Kishor Communication was taken into possession by him on 24.09.2013 at PS Burari.
128. The subsequent invoice no. 850 was prepared on prior date on 11.09.2013 and the impugned invoice no. 849 was prepared on subsequent date on 16.09.2013. This creates doubt as to the correct preparation of bill book by PW-19 and when the said mobile phone was allegedly purchased by the accused person. Further the PW-19 has given two statements that his statement was recorded by the police at his shop and contradicted the same with his another deposition that SHO SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 131 of 174 Parminder Singh had recorded his statement at PS Burari after 2-3 days on arrival of police at his shop. Hence the date on which the statement was given by PW-19 to the police is doubtful. Further, when PW-19 had accompanied the police in the vehicle in which accused person were already sitting and for about 06 hours PW-19 has seen the accused person namely accused no. 2 Sandeep and accused no. 4 Sandeep @ Sunny. Therefore the TIP proceedings subsequent to above fact does not bring any incriminating circumstance against the above accused on record for the reason that TIP proceedings itself is a weak kind of evidence and when the accused are already seen by the witness then the TIP serve no fruitful purpose. Even the name of the witness is not mentioned in the TIP application by PW-48 and before exercising right of refusal the name of witness is desirable to be intimated to the accused. Only after such disclosure of name of witness to the accused he could have exercised the discretion whether to further proceed with the TIP or not and on this account also the TIP proceeding does not prove any incriminating circumstance against the accused no. 4. PW-48 has admitted as correct in not mentioning in TIP application that the accused person are produced in muffled face. PW-19 has deposed that the two accused no. 2 and 4 were produced by the police at his shop where he had identified them. Hence no adverse inference could be drawn against accused no. 2 and 4 under the TIP proceedings and the refusal of TIP by the accused no. 2 and 3 under such circumstance are validly sustained. PW-48 has contradicted himself by deposing that PW-19 came to PS with bill book on 25.09.2013 Ex.PW19/A whereas in cross-examination it is deposed that this bill book was taken in possession by him on 24.09.2013 at PS Burari. PW-48 has admitted in evidence in his application for conducting TIP it is not SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 132 of 174 written that accused were produced in muffled face and it is also therefore not recorded in the order of Ld. Area MM. Ex.PW19/B containing bill no. 851 dated 16.09.2013 does not mention name of father of accused and it mentions name of accused Sandeep. Bill no. 803 is blank page in bill book. The signature of customers were not taken on the bill book. The bill no. 851 and bill no. 849 both were issued on 16.09.2013 whereas PW-19 has deposed that only one bill was issued on 16.09.2013 and a third bill was issued in the name of Sh. Arvind Kumar on 16.09.2013. Further, the PW-19 has deposed that he does not know the person Sh. Anil Kumar who had purchased mobile phone on 16.09.2013. Hence there is no evidence with the prosecution to connect accused no. 2 and 4 in having purchased the said mobile phone from PW-19 as the identity of such purchase by the accused person has remained in doubt and it has also remain in doubt that there was correct preparation of bill book in proper order by PW-19. Hence the prosecution has failed to connect accused no. 2 and 4 with the purchase of mobile phone from Kishor Communication/PW-19.
7. FORGING OF CAF APPLICATION
129. It is admitted as correct by PW-48 in cross-examination dated 29.05.2024 as correct that in the statement of Insp. Naresh Kumar Ex.PW46/DA dated 24.09.2013 it is not written that after registration of case one ransom call was received by parents of child Jatin Dhingra. Nor it is written that he met parents of child as well as obtained mobile number of caller or of the mother the child. It is submitted by the ld. Counsel for accused no. 2 that IO was duty bound to collect all the above SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 133 of 174 details including that of service provider in terms of Manish Sharma case (supra).
130. It is argued on behalf of accused no. 3 by pointing out deposition of PW-12 dated 26.09.2015 at page 2 where it is deposed as correct that on 22.09.2013 one police official came to PW-12 Sh. Shyam Sunder and CAF of the mobile number was shown to him to which PW-12 had confirmed that he had sold the said SIM on the said CAF. At page no. 1452 of the case file and page no. 5 of the chargesheet it is recorded in the last para that on 23.09.2013 after receipt of CAF Manoj Kumar was asked regarding it. It is submitted that this CAF was available with the IO on 22.09.2013 which was not shown to Manoj Kumar on that day who first went to PW-12 inspite of asking from Manoj though they had already interrogated Manoj without CAF on 21.09.2013 to which Manoj replied his unawareness about the said mobile number. It is submitted that IO had to first go to Manoj rather than PW12 and it is claimed that therefore the CAF is manipulated.
131. It has come in evidence of prosecution that the digital image of documents was received by prosecution before hand and the hard copy was not received. Therefore the investigating agency would have taken out print out of digital documents. It is natural of the IO first to go to the person in whose name the SIM connection was issued namely Sh. Manoj Kumar and not to the seller of mobile phone/PW-12. When PW-2 Sh. Manoj Kumar had declined the connection in his name then only the investigating agency as to natural course has to go to the seller/PW-12 of the SIM connection and thereafter to trace out the accused person. The SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 134 of 174 documents were hence available with the IO before the arrest of accused no. 1 or even disclosure of accused no. 1 and even accused no. 2. Hence it cannot be said that the documents were recovered on disclosure of accused no. 1 and 2.
132. Ex.PW5/A is CAF form at page no. 1599 of case file, the FSL report on the same is Ex.PW44/A at page no. 1595 of case file. PW-44 Sh. Anurag Sharma, Asstt. Director from RFSL has deposed on 26.02.2020 on Ex.PW44/A. Ld. Counsel for the accused has referred to Ex.PW5/A at Q2 and Q3 where the signature in the name of 'Manoj' are put. It is argued that the signature are in Hindi language and the common joining line is not originating just above the word 'Manoj'. It is submitted that PW-44 in cross-examination dated 07.04.2021 at page 3 on the question that the head stroke of Q2 and Q3 at its origination are different had answered that without laboratory examination of the signatures he cannot examine these signatures at this stage. Ld. Counsel for accused has referred to S11 and S20 at page no. 1621 to 1639 of the case file by submitting that the manner of head stroke are different though the PW-44 claims that they are similar but PW-44 cannot answer regarding difference in origination of head strokes in Q2 and Q3. It is further submitted on behalf of accused no. 2 that at page no.1597 of case file which is Ex.PX1 which is voter ID card of Manoj Kumar bear signature at point Q3. In the CAF at page no. 1599 bears signature of Manoj at point Q1 and Q2. It is submitted that the letter ' म' in Hindi is bigger than the remaining letter 'नोज' in Hindi for the reason that head stroke is touching the letter 'म' and it is not touching the letters ' नोज'. Hence it is submitted that the first letter is bigger than the remaining two letters SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 135 of 174 whereas at page no. 1601 to page no. 1639 the sample signature made by accused no. 3 which are S1 to S10 which are Ex.PW48/K from page 1601 to page no. 1619 and by accused no. 2 which are S11 to S20 which are Ex.PW48/L from page no. 1621 to page no. 1639 are different. It is submitted that in case from S1 to S10 the head stroke is touching all the letters and the first letter ' म' is not bigger than the other two remaining letters. Other than this in S11 to S20 the letter ' म' does not bear head stroke and only the remaining two letters 'नोज' used to largely bear head stroke.
133. PW-44 in cross-examination dated 07.04.2021 at page no. 4 (page no. 1241 of case file) has deposed to the question that from which alphabet the head stroke start from Mark S11 to S20 to which it is replied that PW-44 cannot examine the specimen signature S11 to S20 at this stage though he had examined all the documents in laboratory condition. To the question that the worksheet of PW-44 with juxtapose chart are not annexed with the report to which it is replied by PW-44 that it is correct that he has not annexed it with the report. Hence it shows that the finding in the report of PW-44 are based on worksheet and juxtapose chart which are primary evidence and the same are not annexed with the report Ex.PW44/A.
134. PW-2 Sh. Manoj in cross-examination dated 28.01.2015 at page 2 (page no.697 of case file) has deposed that he used to make his signatures only in English language. It is submitted that the signature of Manoj/PW-2 are taken in Hindi language though he used to sign in English language and therefore the signature in Hindi cannot be SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 136 of 174 compared with the signature of Manoj/PW-2 in English language as there could be no similarity and comparison in handwriting made by two different language. PW-5 in cross-examination dated 21.05.2015 at page 3 (page no. 767 of case file) has deposed as correct that the pen used for writing Manoj Kumar in English is the same pen which has been used in writing 'मनोज' in Hindi language. The same is objected by the ld. APP for the State that PW-5 Sh. Bijender Saini is not a expert witness who was working with Aditya Enterprises the dealer of Idea Cellular Company. There is merit in the objection raised by ld. APP for the State as by naked eye PW-5 without any expertise cannot depose about the ink used/pen used in making signature in Hindi or English language by Manoj Kumar and therefore the objection raised by ld. APP for the State is upheld. However it is further submitted by ld. Counsel for accused no.2 that ink of the pen is same or that same pen is used then the story of prosecution cannot be sustained that the accused has taken the form somewhere and got it signed.
135. The argument of ld. Counsel for accused that the signature of PW-2 Manoj Kumar who used to sign in English language could not be obtained in Hindi language for the purpose of examination at FSL are rejected in view of fact that when the signature in the CAF form Ex.PW5/A was done in Hindi language then the signature of PW-2 had to be obtained only in Hindi language and not in English language. However the variations pointed out by the ld. Counsel for accused in the head stroke which bears difference in Q2 and Q3 and S1 to S10 pertaining to accused no. 3 and S11 to S20 pertain to accused no. 2 has merits in the argument. PW-2 has deposed that his signature were taken SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 137 of 174 in Hindi language. PW-44 could not answer regarding such difference in orgination of head stroke and he could not examine the specimen signature at this stage. He also did not file the worksheet and juxtapose chart which is primary evidence and on the basis of which this report was prepared. Other than this it was laid down in case titled SPS Rathore Vs. CBI that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. It has to be corroborated by clear direct all circumstantial evidence. The sole evidence of handwriting expert is not normally sufficient for definitive finding and therefore not conclusive under Section 45 of Indian Evidence Act, 1872. In view of infirmities pointed out above it cannot be said that accused no. 2 or accused no. 3 had written Q1 to Q3.
136. PW-14 in cross-examination dated 11.04.2022 Sh. Bhagwan Singh, Div. Manager MTNL has deposed that he knew Manoj Kumar personally and he used to call Manoj Kumar whenever there was generator problem. Manoj Kumar used to sign in logbook verified by junior telephone officer and thereafter PW-14 used to sign it. It is admitted by him that photograph appearing in Ex.PW5/A which is CAF form at point X and signature appearing at point Y is of Mr. Manoj Kumar. Hence it is submitted that PW-14 acquainted with signature and handwriting of Mr. Manoj Kumar and he has correctly identified his signature in CAF form and such signatures are therefore not made by the accused. Ex.PX1 which is voter ID card of Manoj Kumar at page no. 1597 of case file was attested on 16.01.2009 by Sub-Divisional officer MTNL who is PW-14. Ld. Counsel for accused no. 2 has relied on citation titled SPS Rathore Vs. CBI and Anr. AIR 2016 SC 4486 at SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 138 of 174 relevant para no. 27 to 30 wherein it is laid down that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. It has to be corroborated by clear direct or circumstantial evidence. The sole evidence of handwriting expert not normally sufficient for definite finding and therefore not conclusive under Section 45 of Indian Evidence Act, 1872 which are reproduced hereasunder:
27. With regard to the contention of learned senior counsel for the appellant-accused that the signature of Ms. Ruchika on the Memorandum was forged though she signed the same in front of Shri Anand Prakash, Shri S.C. Girhotra, Ms. Aradhana and Mrs. Madhu Prakash and they have admitted the same, we are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not.
A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on the basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held by this Court in a catena of cases that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.
28. In Mobarik Ali Ahmed vs. The State of Bombay AIR 1957 SC 857, this Court has held as under:-
"11.....Learned counsel objected to this approach on a question of proof. We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 139 of 174 document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate case the court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That however is a matter which we cannot permit to be canvassed before us.
29. In Smt. Bhagwan Kaur vs. Shri Maharaj Krishan Sharma And Others (1973) 4 SCC 46, this Court held as under:-
"26.....It is no doubt true that the prosecution led evidence of handwriting expert to show the similarity of handwriting between (PW 1/A) and other admitted writings of the deceased, but in this respect, we are of the opinion that in view of the main essential features of the case, not much value can be attached to the expert evidence. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case."
30. It is thus clear that uncorroborated evidence of a hand writing expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 140 of 174 courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.
137. PW-48 in cross-examination dated 01.06.2024(before lunch) at page no. 6 has deposed that Sh. Bhagwan Singh/PW-14 had confirmed that the photo affixed on CAF form Ex.PW5/A was of Sh. Manoj Kumar. He did not state to PW-48 that the signatures appearing on CAF as well as the photocopy of voter ID card was of Manoj Kumar.
138. PW-2 had given documents to Manoj and Ajit for getting job for witness attestation. He had told their name to SI Rajesh and Sh. Paramjeet. Ajit and Manoj remained at PS upto evening of 22.09.2013 and in presence of PW-2 Sh. Manoj their statement was not recorded. He was taken back to PS from Operation cell in the evening of 23.09.2013. He does not remember the year in which the documents were given by him to Ajit and Manoj. It is further deposed at page no.6 that police had taken signature of PW-2 on one paper which was not read by him. In cross-examination dated 28.01.2015 PW-2 Manoj has deposed that one Mr. Anil his friend lives in village Sunderpur near his place of residence. Mr. Anil is his childhood friend. At page 2 of his cross-examination dated 28.01.2015 it is deposed by Sh. Manoj that he used to make signature only in English language. It is further deposed that police had taken his signature in Hindi language because his signatures in CAF form are shown in Hindi language. It is deposed at page 3 that he had demanded form from accused no. 1 Gautam but he did not return it on the pretext that it was kept in some place. He does not remember the date of such SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 141 of 174 demand and he did not demand back the form again. He had called accused no. 1 Gautam from the mobile phone of police official whose name he does not remember. He had also visited police station on 11.12.2013 and 24.09.2013 on asking of SI Rajesh. He need to fill the form for training of INS Sprata. However PW-2 failed to produce any document to show that there was any such training to be done at INS Sprata for which purpose he had allegedly given the documents to accused no.1 Gautam.
139. As per deposition of above prosecution witness the documents were also given to another person Sh. Manoj and one person Ajit by PW-2 Manoj. The said aspect was not investigated by the IO and it has to be clearly established that the documents which were submitted to PW-12 for issuance of SIM card are the same documents which were allegedly given to accused no. 1 Gautam Jain. For this purpose other circumstantial evidence led by the prosecution has to be looked into.
140. It is submitted on behalf of accused no. 3 that in FSL report Ex.PW44/A the signatures of accused no. 2 were identified and not of accused no. 3. Accused no. 3 has no role to play regarding the signature found on the CAF. It is submitted that the activation voice of mobile number was not of accused no. 3 and as per chargesheet it was of accused no. 2. The CAF was not signed by accused no. 3. It is the case of the prosecution that accused no. 3 had taken the CAF to collect the SIM from the shop. It is submitted that even for the sake of argument if the CAF was taken by accused no. 3 then only by taking of such CAF to PW-12 there was no intention on the part of accused no. 3 to show that it was SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 142 of 174 going to be used for making the ransom call. Mark PW41/1 is photocopy of CAF at page no. 1791 of case file which bears date of 18.09.2013. It is submitted that how the CAF will be taken on 18.09.2013 when PW-12 has deposed in his examination-in-chief that on 17.09.2013 he had sold the SIM card to one person who had produced the documents in the name of Manoj. Hence the SIM card when already sold on 17.09.2013 then there was no reason with accused no. 3 to take the CAF form on 18.09.2013. PW-2 Manoj has deposed that on 23.09.2013 police came to him for inquiry whereas PW-12 has deposed that police came to him for inquiry on 22.09.2013 which has to be otherwise in normal course.
141. It is already discussed above that the signature of accused no. 2 are remained unproved on the CAF form. Further when the SIM card was already sold on 17.09.2013 then why the CAF form has to be submitted before PW-12 on 18.09.2013 and not on 17.09.2013. This creates doubt about the date on which the alleged SIM card was sold by PW-12 and to whom it was sold.
142. It is further argued on behalf of accused no. 3 that PW-37 in his examination-in-chief dated 15.04.2017 has deposed in last line of first page that he had collected CAF form of the mobile number on next date which is 22.09.2013. At page no. 4 of cross-examination dated 05.07.2017 and page no. 1113 of case file it is deposed that the CAF was obtained in the form of electronic image prior to obtaining original hard copy. He does not remember at what time on 22.09.2013 he had collected the CAF/Ex.PW5/A. It is argued that there is no receiving of seizure memo of CAF on 22.09.2013 on record. It is argued that when as per SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 143 of 174 chargesheet at page no. 5 the voice of mobile SIM activation was heard on 23.09.2013 after that only they could have apprehended accused no. 2 and only after that the CAF would be obtained by IO on 23.09.2013 and not on 22.09.2013. Till Manoj verifies the CAF no suspicion can be put on accused no. 3. Inquiry was done from Manoj on 23.09.2013 with CAF and therefore CAF cannot be shown to PW-12 on 22.09.2013. It is submitted that the owner of mobile shop was Harish which comes in deposition of PW-12 though Harish was present on 17.09.2013 as per deposition of PW-12. The salesman who filled the CAF form namely Sh. Gaurav was not present.
143. Hence it is held that the prosecution has failed to prove that the CAF form was collected in due course when there is receiving of seizure memo of CAF on 22.09.2013. The original CAF was destroyed by fire and such destruction is not proved on record. Requirement to lead secondary evidence is not satisfied. However the submission of ld. Counsel for accused that only after hearing the voice of SIM activation the link could be traced out to accused no. 2 after 23.09.2013 and not on 22.09.2013 is rejected in view of the fact that when the CAF form was obtained in digital copy on 22.09.2013 then on disclosure of PW-2 Manoj Kumar that he had given documents to accused no. 1 Gautam Jain then police had clue and could have investigated the role of accused no. 1 Gautam Jain on 22.09.2013. The digital copy of CAF was obtained on 22.09.2013 and it could therefore be shown to PW-12 on 22.09.2013. The CAF form was not filled by the accused person and it was filled by the salesman Gaurav who is not produce in evidence by the prosecution. PW-12 in cross-examination has objected to taking of CAF form as the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 144 of 174 photograph was not matching with the person who had produced it and he has improved his deposition to his statement under Section 161 Cr. P.C Mark PW12/1 portion A to A where it is not recorded that on explanation by the person who had produced CAF form that his friend was unable to come. Therefore the CAF form was accepted. There is no reason for not coming of such friend before PW-12. Hence doubt has arisen about correct preparation of record by PW-12 and that in non-compliance of rules he had issued SIM card not to the person whose photo was affixed on the CAF form. However the prosecution has to prove identity of the person by whom CAF form was given at the shop of Sh. Harish where PW-12 was working.
8. ADMINISTRATION OF ALPREX TABLETS AND CAUSE OF DEATH
144. PW-18 in cross-examination dated 14.01.2016 has deposed at page 6 that he had went inside the shop of Sunny Medicos. He does not remember whether any document was prepared nor does he remember if he had signed any document at the spot.
145. The seizure memo of keys is Ex.PW18/A and it is claimed in the seizure memo that by those keys accused no. 4 Sandeep had crushed in plastic bowl 15 tablets of Alprex which was mixed in the cold drink of the kidnapped child and made the child to drink them.
146. At page no. 6 of chargesheet under Section 173 Cr. P.C it is stated that accused no. 2 Sandeep with accused no. 3 Mukesh had SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 145 of 174 kidnapped Master Jatin Dhingra on 21.09.2013 in Maruti Wagon R bearing no. DL9CX1861 and bought him to their accomplice accused no. 4 Sandeep at M/s. Sunny Medicos where they had administered 15 Alprex tablets in cold drink to master Jatin Dhingra. Accused no. 4 had refused to keep Master Jatin Dhingra with him on which accused no. 2 and 3 had planned to kill Master Jatin Dhingra. Accused no. 2 and 3 had bought Master Jatin Dhingra in Wagon R at Nanglipuna Nala near Farmhouse. First they strangulated the breath of Master Jatin Dhingra with a small pillow in a car by pressing his mouth and neck and after believing that he has dead they had thrown the body in Nala and after that accused no. 2 had called wife of PW-3 on mobile phone for demanding ransom. Ld. Counsel for accused no. 2 has referred to deposition of PW-45 Dr. Kanaklata Verma. PW-45 has deposed that she had received Parcel 1 containing viscera of Master Jatin Dhingra containing Ex.1A, Ex.1B and Ex.1C. Parcel 2 contained Ex.2 which is a black coloured small bowl. In Ex.2 on chemical microscopic examination was found Alprazolem (Benzodiazepine group of drugs). Whereas Benzodiazepine and Pesticides, metallic poison, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers could not be detected in Ex.1A, Ex.1B and Ex.1C. Hence had the deceased being administered Alprex tablet that too 15 in number then they must have shown in viscera Ex.1A, Ex.1B and Ex.1C and therefore the deceased was not administered any tablets and prosecution story fails on this account.
147. It is argued on behalf of accused no. 3 that the car belongs to accused no. 2 and there is no evidence that accused no. 3 had any role to play in kidnapping. There is no corroborative evidence.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 146 of 174148. It is noted that though there are traces of Benzodiazepine group of drugs in Ex.2 which is the black colour small bowl in which the Alprex tablets was allegedly crushed. However the said drug was not found in Ex.1A, Ex.1B and Ex.1C contained in parcel 1 having viscera of Master Jatin Dhingra. Hence prosecution has failed to prove that the above drug by the name Alprex was administered by the accused person to the deceased Master Jatin Dhingra. It is not the case of the prosecution that the effect of such drugs could evaporate over such period of time. In absence of above drug in the viscera of Master Jatin Dhingra proves that this drug was not administered to the deceased and even if the same is seen in Ex.2 the black colour small bowl even then it is of no consequence. Hence it is held that prosecution has failed to prove that the accused person had administered the Alprex drug to Master Jatin Dhingra.
149. The seizure memo of medicine plastic bowl is Ex.PW18/B at page no. 1734 of case file. PW-8 Dr. S. Lal, Spl. Forensic Medicine has deposed that he had conducted postmortem of Master Jatin Dhingra on 24.09.2013 who was wearing a steel kara on right wrist and the body was highly decomposed. No external visible injury was found in the body. The cause of death is asphyxia due to ante mortem drowning. Viscera was preserved to ruled out intoxication. The time since death was 03 days. It means that Master Jatin Dhingra has expired on 21.09.2013. It is argued on behalf of accused no. 2 that it is not the case of prosecution that the victim was wearing steel kara on the right hand. It is noted that PW-8 had proved that the death had occurred not due to strangulation by SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 147 of 174 pillow but it was due to ante mortem drowning whereas the prosecution has claimed that by way of strangulation. Ld. Counsel for accused has referred to deposition of PW-47 Ms. Poonam Sharma, Asst. Director (Biology) FSL who had examined Ex.1 to Ex.6. Ex.4 is one small cushion having dirty stains and Ex.5 is one small cushion. On biological examination blood could not be detected on Ex.2, Ex.4 and Ex.5. Ex.3 is one biri. Saliva could not be detected on Ex.3. Ex.1 is cloth piece having light brown stains and Ex.6 is gauze cloth piece having brown stains described as blood gauze piece of deceased. On DNA examination the profile could not be generated on Ex.1 and Ex.6 due to degradation of exhibits or due to presence of inhibitors. Ld. Counsel for accused has argued that it is not proved by prosecution that Ex.1 and Ex.6 does belong to human blood. It is also not proved that it belongs to any blood group of Master Jatin Dhingra. Ex.6 is the blood taken from the deceased and the DNA profile could not be generated. Hence it is submitted that there was no blood detected on the pillow seized and no relation is made out about strangulating deceased Jatin Dhingra in a car by accused no. 2 and 3. It is argued that there is no evidence on record by prosecution on record to substantiate this claim.
150. It is submitted on behalf of accused no. 2 that the case of the prosecution is that accused no. 2 and 3 had strangulated the deceased by pillow and after Master Jatin Dhingra the deceased had died then his body was thrown in the Nanglipuna drain. PW-8 Dr. S. Lal Specialist Forensic Medicine from Hedegevar Arogaya Sansthan has deposed in his examination-in-chief that he had conducted postmortem on the dead body. No external injury was visible on the body. The cause of death was SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 148 of 174 Asphyxia due to antemortem drowning. Viscera was preserved to rule out intoxication. The time since death was approximately 03 days. The postmortem was conducted on 24.09.2013. Hence the date of expiry of deceased come to the date 21.09.2013 and 21.09.2013 is the date of kidnapping.
151. It is submitted by ld. Counsel for accused no. 3 that at the 6 th page of chargesheet which is page no. 1453 of case file it is written by IO as prosecution story that first Master Jatin Dhingra was strangulated and killed by accused no. 3 and 4. After killing he was thrown in drain. After that accused no. 4 called wife of PW-3 Ms. Raj Dhingra on mobile phone to demand ransom. It is submitted that after killing the kidnapped child there was no reason with the accused to call for ransom as the child was no more with them and it is not a normal course of circumstance. When the kidnapped child was already killed no motive was left with the accused to call for ransom from PW-3.
152. Ld. Counsel for accused has referred to Maruti Wagon R car and evidence in this regard. Ex.PW26/A at page no. 1581 of case file is the car inspection report of Wagon R bearing no. DL9CX1861. As per report there is no fresh damage and the vehicle was found fit for running on road. PW-26 retd. ASI Gurdeep Singh had conducted the mechanical inspection after visiting at the PS. IO had provided the keys. No chance print was taken from the car in his presence. The store room register (Part I) at relevant pages is Ex.PW28/A and at page 3 of this exhibit under the heading 'Description of property' the seizure report is mentioned. The seizure report mention that in front of witnesses after personal search of SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 149 of 174 accused no. 2 Sandeep the key of the car was recovered from pocket of his friend which bears logo of Maruti company on the head.
153. PW-48 in cross-examination dated 30.05.2024 has deposed as correct that he had not got lifted the finger print through FSL or crime team from the car on 24.09.2013. It is further admitted as correct that on 24.09.2013 till date the car and keys of the car were in the Malkhana. It is argued that the IO has not got lifted evidence from the Wagon R car and the car keys were lying in Malkhana and therefore the car key are freely available to anyone to be used for collecting such evidence from the car and which cannot be relied upon. It is further deposed at page 5 that PW-48 had prepared seizure memo of exhibits provided by Ms. Anita Gupta, Incharge FSL team on 08.10.2013 which is contradictory to the deposition that between 24.09.2013 till 08.10.2013 the car keys were in Malkhana. It is admitted as correct by PW-48 that there are no signature of any member of FSL team including the incharge Ms. Anita Gupta in the seizure memo. It is admitted as correct that no FSL seal was put on exhibits. It is admitted as correct that no finger prints were taken at that time from the car. PW-48 does not remember whether any blood was detected from the cushion/exhibits sent to FSL.
154. PW-8 has depose that the time since death was 03 days which brings date of expiry of deceased Master Jatin Dhingra as 21.09.2013. The date of recovery of dead body was 23.09.2013. The accused person would not have kept the dead body for two days with them and natural conduct would be to earliest get away with it. When the body was thrown in a running water drain then it could have floated at some distance.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 150 of 174PW-8 has proved that the death has not occurred due to strangulation by pillow but it had occurred due to ante mortem drowning. Hence the case of the prosecution that first the victim was killed by strangulation by the accused and then later on thrown in the drain could not be sustained. The DNA profile of the dead body could not be generated by PW-47 due to degradation of exhibits/presence of inhibitors. The prosecution has failed to prove that the blood group of the body belongs to the dead body of Master Jatin Dhingra or that it has similar DNA profiling. No blood was detected in the pillow seized in the case allegedly in which the victim was kidnapped and strangulated by pillow nor any DNA sampling in the pillow is proved on record that it contained any body fluid of Master Jatin Dhingra which could connect the deceased with the car. There is variation in the height of the body recovered and doubt is also created in the fact that whether it is same body pertains to Master Jatin Dhingra or of some other person. The submission of ld. Counsel for accused no. 3 that when the child was already killed on 21.09.2013 then there was no reason with the accused person to make call for ransom has no logical basis as the alleged accused person would be more interested in recovery of ransom then delivery of the life of the deceased to their parents and hence the above submission is rejected in view of the fact that the above submission may be relevant in civil disputes but not in respect of the case of ransom. Further, when the car keys were in Malkhana between 24.09.2013 till 08.10.2013 and when PW-48 did not get lifted the finger print through FSL or crime team from the car on 24.09.2013 then there is absence of specific date and time when the seizure memo of exhibits provided through FSL was prepared which were later provided by Ms. Anita Gupta the Incharge FSL team on 08.10.2013. hence the above SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 151 of 174 deposition creates doubt in the case of prosecution about proper seizure of articles and their proper custody in Malkhana or that till they remained in Malkhana they could not be tampered with.
9. CAPACITY OF PW-3 TO PAY RANSOM OF RS.40 LAKHS ALSO APPLICABILITY OF SECTION 120B IPC
155. Ld. Counsel for accused no. 2 has submitted that there is absence of last seen evidence and therefore there is no burden on accused to explain it. It is submitted that all the accused were arrested from their residence/work place. There is no extra judicial confession on behalf of accused. It is argued that accused are not connected with each other and there is no prior meeting of mind. The accused have not interse communicated with each other. Motive of crime is not established by the prosecution and accused was not in need of any money nor he did he lost money in gambling/Satta. The MLC of accused was not prepared. It is further argued that the worth/capacity of PW-3 Kishan Lal to pay Rs.40 lakhs is also not proved and story of prosecution is not supported by any evidence that PW-3 had such wealth. It is submitted by ld. Counsel for accused no. 3 that PW-3 the father of deceased was earlier an auto driver and later on he started business of property dealing and there is no evidence brought by the prosecution to show that PW-3 was affluent enough to pay ransom of Rs.40 lakhs. PW-3 in his cross-examination dated 22.05.2015 at page 4 (page no. 739 of case file) has deposed that he used to run auto before starting business of property dealing.
156. Ld. Counsel for the accused no. 2 has submitted that there was SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 152 of 174 no motive with the accused person to kidnap child of PW-3. The entire case of prosecution is based on circumstantial evidence. PW-3 was earlier auto driver by profession and he was not living a lifestyle to show his capacity to pay Rs.40 lakhs. If he did not had capacity to pay Rs.40 lakhs then why any person will try to demand a ransom from PW-3. PW-48 in cross-examination dated 01.06.2024 (before lunch) at page 1 has deposed that he did not collect any documentary evidence to show the capacity that the complainant has Rs.40 lakhs as means to pay the ransom.
157. At page no. 6 of chargesheet under Section 173 Cr. P.C it is stated that accused no. 2 Sandeep had disclosed in his disclosure statement before Insp. Naresh Kumar and SI Rajesh Kumar that he had suffered big loss in gambling of society. After that he had made a planning with accused no. 3 Mukesh and accused no. 4 Sandeep that they will kidnap son of PW-3 namely Master Jatin Dhingra. Accused no. 2 and 3 knew the child Master Jatin Dhingra very well and after his abduction they will extract huge ransom. It is argued that no such loss in gambling by accused no. 2 Sandeep is proved on record. It is submitted on behalf of accused no. 3 that loss in gambling is not proved on the part of accused no. 2.
157.1 It is submitted on behalf of accused no. 2 that the case of prosecution is that the accused no. 3 had suffered financial loss due to which the kidnapping for ransom was planned. However there is no proof on behalf of prosecution to prove such financial loss and poor financial condition of accused no. 2 and 3. There is no evidence in this regard. It is submitted that merely mentioning this fact in disclosure statement is not a SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 153 of 174 proof and there is no discovery of fact by the prosecution. It is submitted that there is absence of motive on the part of accused person to commit kidnapping for ransom. ld. Counsel for accused has relied on citation titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) at relevant para no. 76 to 85 which are reproduced hereasunder:
EXTRA JUDICIAL CONFESSION
76. It is the case of the prosecution that on 23.01.2010 the accused appellant is said to have visited the house of the PW-3, Babu Ram Hans at about 9:00 o'clock in the morning and sought his help.
While seeking help from the PW-3, Babu Ram Hans, the accused appellant is said to have made an extra judicial confession that he had brutally killed his wife Sangeeta for not giving consent to him to marry Manju. The accused appellant is also said to have made an extra judicial confession to the PW-3, Babu Ram Hans that he had also killed his four daughters viz. Tulsi, Lakshmi, Kajal and Guddi and thereby had committed a huge mistake. The trial court and the High Court have believed the so called extra judicial confession said to have been made by the accused appellant before the PW-3, Babu Ram Hans. However, the trial court as well as the High Court should have put a question to themselves before believing the extra judicial confession whether the accused appellant was a free man on 23.01.2010 so as to reach the house of PW-3, Babu Ram Hans at 9:00 o'clock in the morning and make an extra judicial confession. This is one of the basic infirmities we have noticed in the judgment of both the Courts. There is cogent evidence on record to indicate that on 22.01.2010, the accused appellant first visited the house of PW-1, Shambhu Raidas (first informant) and narrated about the incident. The PW-1, Shambhu Raidas thereafter lodged the First Information Report (FIR) at the police station and as deposed by him, the accused appellant all throughout was at the police station. If on 22.01.2010 the accused is sent for medical examination along with a police yadi accompanied by a police constable to the hospital then how does it lie in the mouth of the prosecution to say that after the medical examination the accused appellant was allowed to go home and move around freely. The witnesses have said in their oral evidence that the accused appellant was picked up by the police on 22.01.2010 in the early morning itself. This entire case put up by SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 154 of 174 the prosecution that an extra judicial confession was made by the accused appellant before the PW-3, Babu Ram Hans on 23.01.2010 appears to be fabricated and engineered only to bolster up the case of the prosecution.
77. It is also the case of the prosecution that similar such extra judicial confession was made by the accused appellant before the PW-4, Ram Kumar, S/o Paanchoo on the very same day of the incident itself i.e. 22.01.2010 at 06:30 in the morning. If we peruse the oral evidence of the PW-4, Ram Kumar then according to him at the relevant point of time he was a member of the District Panchayat. According to PW-4, Ram Kumar, the accused appellant had visited his house at 06:30 in the morning and made an extra judicial confession that he had committed a serious crime. How does the prosecution expect us to believe even the second extra judicial confession alleged to have been made before the PW-4, Ram Kumar? How does the prosecution expect us to believe that the accused appellant was present at three different places on or about the same time. Either we believe PW-1, Shambhu Raidas (first informant) that the accused appellant visited his house at 06:30 in morning or we believe the PW-2, Chhatrapal Raidas, who has deposed that the accused appellant had visited his house at 07:00 o'clock in the morning or we believe the PW-4, Ram Kumar that the accused appellant had visited his house at 06:30 in the morning. How is it possible for the accused appellant to be present at three different places in or around between 06:30 A.M. to 07:30 A.M. One another aspect that makes the oral evidence of the PW-4, Ram Kumar very doubtful is that his house is situated at a distance of 6-7 kilometers from Dhaurhara and according to the PW-4, the accused appellant visited his house all the way walking from his own house. The PW-4, Ram Kumar also appears to be a 'got up' witness only for the purpose of creating evidence in the form of extra judicial confession. At this stage, we may once again go back to the oral evidence of the PW-1, Shambhu Raidas (Exh.1). In his evidence, he has said, "the inspector had not interrogated me at the police station. The inspector had visited the place of the incident in his vehicle. I left the police station at the 02:00 o'clock in the night. I had stayed at the police station right from the time I lodged the FIR in the morning till 02:00 o'clock in the night and Ramanand also stayed with me at the police station. The police official had challaned Ramanand on the third day. Till then Ramanand was continuously staying at the police station. [Emphasis supplied]
78. The PW-2, Chhatrapal Raidas in his evidence has deposed, "I came to know about the incident at 07:00 o'clock in the morning. I SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 155 of 174 came to know through Ramanand. Ramanand had come to my house at 07:00 o'clock. Ramanand was alone then. Ramanand told me that his wife and children were burning in the house; someone had killed and set them on fire. Saying this Ramanand left for his home. Thereafter, Pratap and Shambhu reached the place of Ramanand on a bicycle and I reached walking. When I reached the house of Ramanand, Pratap and Shambhu were dousing the fire at the house with water. Ramanand was warming his body sitting over here and villagers were standing outside. The clothes of Ramanand were soaked with blood. The Inspector reached sometime thereafter. Thereafter, I, Shambhu and Pratap went with the inspector to the police station in a jeep. It took half an hour for the inspector to arrive at the spot. It was about 8-9 o'clock in the morning the police officials took Ramanand to the police station before us."
79. Thus, it is very difficult for us to believe that the accused appellant could have made extra judicial confession on 23.01.2010 before the PW-2 and also before the PW-4 on 22.01.2010 at 06:30 A.M. i.e. on the date of incident. We have reached to the conclusion that the investigating officer has deliberately shown arrest of accused appellant on 24.01.2010 and that too from a place like bus stand. As discussed above, the accused appellant was arrested and taken in custody in the morning of 22.01.2010 itself. One Police Constable along with a police yadi had taken the accused appellant to the hospital in the morning itself for medical examination. Only with a view to show that between 22.01.2010 and 24.01.2010 the accused appellant made extra judicial confession before two witnesses, the investigating officer has shown arrest of the accused appellant on 24.01.2010 which is just unbelievable.
80. Confessions may be divided into two classes, i.e. judicial and extra judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the CrPC or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions, two questions arise: (i) were they made voluntarily? And (ii) are they true? As the Section enacts, a confession made by an accused SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 156 of 174 person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Evidence Act. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors at the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satisfied that its opinion, the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. [See R. V. Warwickshall: (1783) Lesch 263)]. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 157 of 174Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So, where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284). A promise is always attached to the confession, alternative while a threat is always attached to the silence-alternative; thus, in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused. (See State of Rajasthan v. Raja Ram, (2003) 8 SCC 180)
81. An extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 158 of 174 thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
82. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction.
83. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under:-
"15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
xxxx 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extrajudicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) "19. An extra-judicial confession, if voluntary and true and made SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 159 of 174 in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made."
The Court further expressed the view that: (SCC p. 192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...." xxxx 15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-30) "29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra- judicial confession should be corroborated by some other material. Vide Thimma and Thimma Raju v. State of Mysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219] , Sivakumar v. State [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082] ]"" [Emphasis supplied]
84. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and Another, (1992) 3 SCC 204, this Court after referring to Piara Singh and Others v. State of Punjab, (1977) 4 SCC 452, held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.
85. The sum and substance of the aforesaid is that an extra judicial SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 160 of 174 confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession.
158. The prosecution must show under Section 120B IPC that accused person had prior meeting of mind. There has to be some evidence to show that accused person had met all together prior to the commission of offence or had such prior meeting of mind. It is argued on behalf of accused no. 1, 2 and 3 that there was no prior intimacy between them nor they were known to each other. PW-2 in cross-examination dated 07.01.2015 at page 4 and 5 (page no.689 of case file) has deposed that he had given name of two person to whom he had given the documents i.e. photocopy of election ID card, photocopy of educational documents and photocopy of ration card whose name are Sh. Ajit Kumar and Sh. Manoj. He does not remember house number of Ajit who was residing at B Block, Jahangir puri and Manoj Kumar was residing at Ramgarh, near Jahangirpuri Metro Station. Manoj used to work at NDPL. He did not name any person from Adarsh Nagar who used to be a photographer.
159. There is no evidence nor any witness if the accused person have ever met before. There is no CDR of phone call record nor any location chart to show that accused person had met before. It is submitted that the allegation of the prosecution is against accused no.2 that he had activated the mobile SIM with his voice and accused no. 3 had no role in it.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 161 of 174160. As per deposition of PW-48 in cross-examination dated 20.04.2024 at page 6 and 7 it is deposed that there is no evidence in which school accused Gautam had studied. It is further deposed that there is no evidence to show that accused no. 1 Gautam and accused no. 2 Sandeep studied together in the same school. PW-48/IO does not remember whether there is any CDR of mobile number of accused no. 1 and 2 and the said CDR could not be found on record after going through the file. Hence it is noted that the said two accused were not related to in any manner with each other and there was no prior meeting between them any time and therefore Section 120B IPC is not applicable. There is no evidence of interse relationship through mobile phone call or otherwise and only speculation is made by the prosecution in this respect. PW-48 in cross-examination dated 30.05.2024 at page 2 has deposed that except disclosure statement of accused no. 2 he did not investigate whether accused no. 1 and 2 had studied together at Adarsh Nagar, Delhi. He did not ascertain academic year or name of the school.
161. PW-37/SI Rajesh Kumar at page no. 1107 of case file has deposed that he had come to know prior to arrest of accused no.1 Gautam that accused no. 2 Sandeep was residing at Nanglipuna and he had a medical shop in Burari. PW-37 has deposed that he did not conduct any investigation to collect material indicating that accused no. 1 Gautam and accused no. 2 Sandeep had studied in the same school in Adarsh Nagar, Delhi nor their academic years were ascertained. PW-37 does not recollect the time of arrest of accused no. 1 Gautam.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 162 of 174162. PW-48 in cross-examination dated 20.04.2024 at page 6 has deposed that there is no evidence that in which school accused Gautam has studied. There is no evidence to show accused no. 1 Gautam and accused no. 2 Sandeep have studied in the same school. He does not remember whether there is any CDR of mobile phone of accused no. 1 and 2 and same was not seen in the case file after granting permission to PW-48. PW-48 does not have any proof that accused no. 1 Gautam was working at SERCO BPO.
163. In view of above it is held that prosecution has failed to prove that there was prior meeting of mind between the accused persons to invoke Section 120B IPC.
164. In the case titled Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018) Delhi 145 it is laid down at para no. 78 to 81 that when PW-1 in that case was a junk dealer then accused would have known that PW-1 could not afford such kind of money and the demand for ransom of Rs.15 lakhs was far fetched and wholly unrealistic. It was laid down that motive play an important role in case of circumstantial evidence where the other circumstances were not proved convincingly by the prosecution. Further, had the accused being in desperate need of money then he would not have killed the victim on the very first day as alleged by the prosecution. In the present case also the PW-3 was a auto driver and later turned into property dealer which the prosecution must show by such evidence that the public person or accused would have known that PW-3 could have afforded payment of ransom for a sum of Rs.40 lakh. The prosecution has failed to bring any evidence to SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 163 of 174 substantiate such capacity to pay ransom of Rs.40 lakh in PW-3. Further, there is no evidence brought on record by the prosecution that the accused had lost money in gambling/Satta which is the case of the prosecution. Even the financial status for last two year of the accused is not proved on record to show that there was continous deterioration of their financial standing to substantiate the allegation of prosecution. In absence of such proof the killing of child on the very first day has therefore become inconsistent with the story of prosecution that the accused were in desperate need of money which led to kidnapping and killing of the child. The relevant para are reproduced hereasunder:
78. Secondly, PW-1 is only a junk dealer. A-2 would have known he simply could not afford this kind of money. Therefore, the story of demand of Rs. 15 lakhs as ransom appears a far reach and wholly unrealistic. The motive plays an important role in a case of circumstantial evidence where the other circumstances are not proved convincingly by the prosecution. As explained by the Supreme Court in Surinder Pal Jain v. Delhi Administration 1993 Supp (3) SCC 681:
"In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof."
79. In Arjun Mallik v. State of Bihar 1994 Supp (2) SCC 372 the Supreme Court further explained the position and the following words:
"...mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 164 of 174 involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anybody else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused."
80. It is, therefore, not as if proof of motive is unnecessary or irrelevant in all cases. While in the case of direct evidence, motive may not assume much significance, in a case of circumstantial evidence, the failure to prove motive would not be fatal only if all other circumstances have been established beyond reasonable doubt by the prosecution.
81. In the present case the conduct of the accused in killing the child on the very first day, as alleged by the prosecution, is wholly inconsistent with the story of their being desperately in need of money and that leading to the kidnapping and killing of the child.
10. VOICE SAMPLE OF ACCUSED ON SIM ACTIVATION
165. Ld. Counsel for accused no. 2 has pointed out deposition of PW-48 dated 13.01.2023 at page no. 1343 of case file where it is deposed that on 27.09.2013 PW-48 alongwith his staff took accused no. 2 to FSL, Rohini for recording of his voice sample and FSL officials recorded voice sample. Two cassettes were handed over to PW-48 one of which was containing original sample of voice of accused no. 2 and another cassette was containing copy of same sample voice. The IO at page 2 of same cross-examination has deposed that he had sealed both the cassette with the seal of 'PS'. It is argued on behalf of accused no. 2 that seal was not SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 165 of 174 put by FSL but by PW-48 and therefore the said voice does not contain original voice of accused no. 2. It is further submitted that it cannot be ruled out that voice sample was tampered by PW-48 or any other person in the meanwhile. The seizure memo of voice cassette is Ex.PW34/B at page 1749 of case file. It is argued that the said seizure memo does not mention that who had recorded the voice sample. It is argued that PW-48 has not identified the said cassettes as the same cassettes which were seized by him vide Ex.PW34/B. It is further submitted that FSL, Rohini is not notified under Section 79 of Information Technology Act for recording voice sample and therefore FSL, Rohini is not competent to make a report on such voice. It is submitted that there is no witness to the fact that who had given the cassettes for the purpose of recording of voice sample. It is submitted that the name of the person who had recorded the voice and who has witnessed it has also not proved on record. It is argued on behalf of accused no. 2 that there is no application on behalf of IO to FSL to take voice sample. PW-48 in cross-examination dated 30.05.2024 has deposed as correct that in statement Ex.PW37/DA dated 24.09.2013 it is not recorded that SI Rajesh had collected any voice recording from Idea Cellular Company Ltd. PW-48 is also confronted with Ex.PW37/DA that it is not recorded there if SI Rajesh kumar had informed PW-48 that he had taken soft copy of the voice and same is admitted as correct by PW-48. It is submitted by ld. Counsel for accused no. 2 that the voice record from Idea Cellular Company does not have certificate under Section 65B of Indian Evidence Act and therefore authenticity of this sample cannot be relied upon as to its correct extraction.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 166 of 174166. It is deposed by PW-48 in cross-examination dated 30.05.2024 at page 3 as correct that it is not mentioned in statement of Sh. Kishan Lal Ex.PW3/DA dated 24.09.2013 that he had heard any voice recording. It is deposed that SI Rajesh Kumar has provided voice recording from laptop to PW-48 in pendrive which was copy. However no certification under Section 65B of Indian Evidence Act was given by SI Rajesh Kumar. PW-48 did not deposit pendrive in Malkhana nor did he file it with the case file and he cannot bring it now before the Court. It is deposed by PW-3 in examination-in-chief dated 11.12.2014 at first page and page no. 707 of case file that he had heard and identified voice of accused no. 2 Sandeep at the office of DCP. He is confronted with his statement under Section 161 Cr. P.C. Ex.PW3/DA where it is not recorded that he met with DCP on 22.09.2013. The statement is dated 24.09.2013. At page 2 of cross-examination dated 25.02.2015 it is deposed by PW-3 that on 22.09.2013 SI Rajesh Kumar has not come to meet him nor his wife. The PW-37 the IO Rajesh Kumar has not stated/deposed about hearing of voice at DCP office by PW-3. It is argued that between 22/23.09.2013 voice recording was not available with the police/investigating agency from Idea Cellular Company Ltd. The PW-43 witness from FSL has admitted in cross-examination as correct that in the year 2014 the lab at FSL Rohini was not recognised or notified by the Central Government/State Govt. under Section 79A of the Information and Technology Act, 2000. PW-46 ACP Naresh Kumar in his examination-in-chief dated 30.03.2021 at page 2 and page 1249 of case file has deposed that he was told at PS Burari by SI Rajesh Kumar that Manoj had stated to SI Rajesh Kumar that he did not get the mobile number issued. It is argued that the above deposition of PW-46 is only SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 167 of 174 heresay evidence and cannot be relied upon.
167. PW-48 in examination-in-chief dated 16.02.2023 at page 3 and page no. 1369 of case file has deposed that he prepared transcript of voice on 27.09.2013 of voice recording taken by IO which was recorded at the time of activation of mobile no. 8744806631. He had prepared the said transcription from voice recording obtained by previous IO/SI Rajesh. It is argued on behalf of accused that it is incorrect case of the prosecution that SI Rajesh provided the voice which PW-48 has taken it in pendrive as SI Rajesh has not deposed so. The notice given to Idea Cellular Company Ltd. on 29.09.2013 under Section 91 Cr. P.C is vide Ex.PW41/E. It is submitted that there is no recording of ransom call allegedly by the complainant and recording was done only of sample voice vide Ex.PW41/E obtained on 01.10.2023. PW-48 in cross- examination dated 30.05.2024 at page 5 has deposed as correct that no signature of any member of FSL team including Incharge Ms. Anita Gupta were taken in the seizure memo of the voice sample. It is further admitted as correct that PW-48 had prepared that the seizure memo with his own seal 'PS'. It is admitted as correct that Insp. Naresh Kumar did not inform PW-48 that anyone had discussed with him about voice recording at the time of activation of mobile phone. It is admitted as correct that in the statement it is not written that after registration of case one ransom call was received by parents of kidnapped child. It is submitted that no soft copy of voice was taken and no CD is filed on record. No FSL person are saying that they had recorded the voice of the accused. It is argued that voice of accused no. 2 was never taken by FSL through a duly authorized person. PW-48 in cross-examination dated SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 168 of 174 29.05.2024 at page 5 has admitted as correct that he had not examined the mobile phone instrument on which the alleged ransom call was received. It is further admitted at the same page in cross-examination that PW-48 has not collected the CDR and CAF of the mobile phone on which ransom call was received. In this respect citation titled Baiju Kumar Soni Vs. State of Jharkhand (2019) 10 SCR 1111 at para no. 16 relied upon. The relevant para is reproduced hereasunder:
16. In the light of these settled principles, from the facts and circumstances it is evident:
a) Though PW7 stated that two calls were made from his STD Booth on 12.01.2006 at about 1327 Hours and 1338 Hours to specified mobile numbers, nothing has been brought on record that those two mobile numbers either belonged to PW4 and PW10 or were in any way under their control. In order to establish as a circumstance that on the relevant day threatening calls were received by the said PWs 4 and 10 from the appellants, the important fact which ought to have been established was that those two mobile numbers either belonged to or were under the control of said PWs 4 and 10. Even if we accept the theory that said PW7 had identified the appellants to be the ones who had made two calls, that does not lead us to infer that the calls must have been made to PWs4 and 10. This circumstance has not been fully established which could be read against the appellants.
b) Though drawing book had been received from the house of appellant no.1 and it was the case of the prosecution that the threatening letter (Exhibit-II) was written on a piece of paper from said drawing book, no attempts were made either to have any forensic analysis or examine handwriting expert to establish that the writing in the threatening letter was either of the appellants or could be associated with them.
168. Ld. Counsel for accused no. 2 has submitted that there is no direct evidence against the accused and the case of the prosecution is mainly circumstantial evidence. The relevant law in respect of circumstantial evidence is well settled and the test laid down in citation SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 169 of 174 titled Ramanand @ Nandlal Bharti vs. State of U.P. 2022 SCC Online SC 1396 (supra).
169. The voice sample obtained by the IO from Idea Cellular Company does not have certificate under Section 65B of Indian Evidence Act and the necessary circumstance for leading secondary evidence are also not proved on record in absence of which this voice sample could not be relied upon. Further, the non-recognition of FSL Rohini in the year 2014 as per Section 79A of Information Technology Act, 2000 is concerned then the same is directory as word "may" is used under the said provision. The FSL is specially recognized institution for handling such cases for analyzing forensic evidence whereas there may be other Central Government agencies having similar capacity could also be notified for the purpose of such examination of electronic evidence. The purpose of section is that only such agencies are to be noted which has proper expertise. Even before enactment of the Information Technology Act, 2000 FSL was known for its expertise for analysis of forensic evidence and therefore its expertise in this respect cannot be challenged. Hence the provision is not mandatory and appears to be directory and has to be looked into as per the facts and circumstances of the case. Accused has to show that what prejudice was caused to him by such examination of evidence at FSL. The IO has sufficient capacity to move FSL to collect necessary evidence during investigation. However in the present case SI Rajesh has not shown to have deposed that he had provided voice sample to PW-48 in the pendrive. The voice sample was taken by SI Rajesh in his laptop and whether such transfer of data in the laptop and later in the pendrive to the IO/PW-48 is not certified as per provisions of Section SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 170 of 174 65B of Indian Evidence Act, 1872. The signature of team of FSL Incharge Ms. Anita Gupta were also not taken in the seizure memo of the voice sample. PW-43 has not deposed that she had collected the voice sample of the accused. However Ex.S1 is the voice sample of the accused. The manner in which the voice sample was collected is also not proved on record. The voice sample of the accused had to be collected only at FSL before independent agency. The cassette of voice is placed on record by the IO. How this voice has come into cassette and its proper certification is not proved on record. The parcel were not returned after examination does not bear seal of FSL but it bear seal of IO which is "PS". The seal was later on remained with the IO. Hence proper transmitting of data is not proved on record by the prosecution. PW-43 did not prepare any transcription of question voice as well as the sample voice nor does the report of FSL mentions that the transcript was provided by the IO to PW-43. In such view of the matter the prosecution has failed to prove that the examination of voice was done with proper certification. It cannot be ruled out that there could be loss in data while transferring one data to another. The authenticity of transfer is not proved on record. The PW-43 has not deposed that on the basis of what features of auditory and spectrography analysis she found Ex.Q1 and Ex.S1 as similar and therefore her report is merely an opinion. It has to be proved on record that what part of auditory and spectrography analysis proves that the voice are similar. The same is not proved by the prosecution on record and therefore it could not be said that Ex.Q1 and Ex.S1 are of the same person and remained untampered with. Hence it is held that prosecution has failed to prove that the voice in Ex.Q1 belongs to the accused which is Ex.S1.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 171 of 174170. When the voice was recorded at FSL then there was no reason for PW-48 to put his seal of "PS' and then hand it over to FSL. Though the report Ex.PW43/A mentions that the exhibits sent to laboratory have been sealed with the seal of VLN FSL Delhi. The above statement is contrary to the deposition of IO PW-48 that he had sealed the said voice samples while giving them to FSL. Further, PW-43 in his evidence has not deposed about the Ex.Q1 and Ex.S1 were so sealed with the seal of FSL. Hence the return of the above exhibit with the due seal of FSL is also not proved on record by the prosecution. The result of examination mentions that the acoustic analysis of the speech was done and the acoustic cues and other linguistic and phonetic features were found similar. However it is not detailed that what were those acoustic cues and what were that linguistic and phonetic features which were found similar. Acoustic cues are characteristic pattern in a speech signal which are used to infer the underline phoneme sequence in an utterance. This can be how long a vowel sound is held in the pronunciation of a word and it also includes the height of the vowel. The measurement can be showed by physical representation on a paper that which of the word are most tense and which of the word are most lax. The graphic illustrations of spectrograph could have been done. In fact what has been done in the evidence of PW-43 is an opinion given by the witness and not the circumstances or the specific evidence on the basis of which this opinion was formed. The opinion without necessary details that on what scientific circumstance it is based upon cannot be called as primary evidence. The primary evidence is not brought by the prosecution on record. The seal of FSL are also not proved on Ex.Q1 and Ex.S1 during evidence of PW-43.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 172 of 174In such view of the matter it cannot be said that PW-43 is able to prove similarity of voice in Ex.Q1 and Ex.S1. Therefore it is held that prosecution has failed to prove similarity in voice in Ex.Q1 and Ex.S1 and therefore it cannot be said conclusively that this voice pertains to accused Sandeep Kumar. It is laid down under Section 65B of Indian Evidence Act, 1872 that any information in any electronic record in an optical or magnetic media produced by computer shall be deemed to be a document and therefore certificate under Section 65B of Indian Evidence Act, 1872 is necessary in above respect. PW-3 has not stated in his statement under Section 161 Cr. P.C. that he had heard voice recording though he has deposed in evidence so. PW-3 has also not deposed that the ransom call was received by him. When the ransom was not received by PW-3 and they were heard by PW-6 or PW-9 then there was no reason with PW-3 to hear the voice recording and identify the voice of accused Sandeep Kumar. However on the basis of identification of voice by PW-3 the sampling was done through FSL. In such view of the matter it is held that the prosecution has failed to prove untempered transferring of voice recording data through different channels first from Idea Cellular Company to SI Rajesh and then from SI Rajesh to PW-48 and thereafter such examination by FSL of Ex.Q1 and Ex.S1. The transcript of voice recording though claimed to have been prepared by PW-48 is not proved on record. The PW-48 in cross-examination has deposed that he did not examine the mobile phone instrument on which the ransom call was received and the CDR and CAF of the mobile phone were not collected by PW-48. In such view of the matter it is held that the prosecution has failed to conclusively proved that the voice on Ex.Q1 and Ex.S1 belongs to the accused Sandeep.
SC No. 27881/2016 FIR No. 383/2013 State Vs. Gautam Jain & Ors. Page 173 of 174171. In view of the discussion held above it is found that the prosecution has failed to prove that accused person have committed offence under Section 364/419/468/471/302/201/120B IPC. Hence accused no. 1 Gautam Jain, accused no. 2 Sandeep Kumar, accused no. 3 Mukesh Kumar Sharma and accused no. 4 Sandeep Kumar @ Sunny are acquitted of the offence charged against them. Accordingly, all the accused person stands acquitted. The earlier personal bond and surety bond of all the accused person are cancelled and surety stands discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed as per rules. In terms of Section 437A Cr. PC, all accused person have furnished their bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 17.01.2025. PRAKASH PRAKASH NAHAR
Date: 2025.01.17
NAHAR 11:24:07 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 27881/2016
FIR No. 383/2013
State Vs. Gautam Jain & Ors. Page 174 of 174