Delhi District Court
Fir No. 130/13 State vs . Kaushal @ Gulla Etc. Page No. 1 Of 90 on 1 July, 2019
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL
SESSION JUDGE 03 : NORTH WEST : ROHINI : DELHI
Session Case No. 114/2013
Case ID No. : 02404R0173692013
FIR NO. 130/13
P.S : Aman Vihar
U/S : 302/365/201/34 IPC
In the matter of:
STATE
VERSUS
1. Kaushal @ Gulla
S/o Sh. Devender Pal
R/o H.No. 723/D, Gali No. 5,
Pratap ViharII, Delhi
2. Manoj
S/o Sh. Devender Pal
R/o H.No. 723/D, Gali No. 5,
Pratap ViharII, Delhi
Date of Institution of the case in Sessions Court : 16.07.2013
Date of conclusion of arguments : 03.06.2019
Date of Judgment : 01.07.2019
JUDGEMENT
1. Brief facts leading to the trial of both accused persons for offense under Section 302/364/34 IPC are that on 28.03.2013 complainant Sh Jai Chand Sharma S/o Sh. Charan Singh R/o H.No. 709, Gali No. 5, Pratap ViharII, Delhi came to the police station and gave his FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 1 of 90 statement regarding kidnapping (abduction) of his son Ankur Sharma since 23.03.2013. His statement was recorded. On his complaint, FIR/case u/s 365/34 IPC was registered and investigation was carried out by SI Vasant Kumar. During the course of investigation the IO collected the missing report bearing DD No. 20A dated 28.03.2013 along with victim's photograph and interrogated the suspected persons namely Manoj s/o Sh. Devender Pal R/o H.No. 723/D, Gali No. 5, Pratap Vihar II, Delhi and his brother Kaushal @ Gulla S/o Sh. Devender Pal R/o H.No. 723/D, Gali No. 5, Pratap ViharII, Delhi. During interrogation both the suspected persons disclosed that on 23.03.2013 they had killed Ankur Sharma by pressing his throat and hitting him on his head with an iron rod of car jack in their car bearing No. DL4CU2693 because he was saying bad things about the wife of accused Manoj in a drunk condition. They dumped the dead body of Ankur Sharma in a wheat field on Madhupura Khurja Road PS Khurja, District Bulandsehar, UP on the same night.
2. SHO Mahender Singh took over the investigation from SI Vasant Kumar. During investigation both the accused persons i.e. Kaushal @ Gulla and Manoj were interrogated and arrested. Arrest memos, personal search memos and disclosure memos of both the accused persons were prepared. Mobile phone handset of make SPICE Co. with mobile SIM No. 9999184890 and IMEI No. 911234909449280 was seized from accused Kaushal @ Gulla. Mobile phone handset of make OPEL Co. with mobile no. 9990563646 was recovered from accused Manoj. On the instance of the accused persons the car bearing registration No. DL4CU2693 was taken into possession and deposited FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 2 of 90 in Malkhana and Sections 302/201/34 IPC were added in the case.
3. Then IO along with his staff reached at Madhupura Khurja Road, District Bulandsehar, UP and found the lone house of Sh. Kripal Singh, S/o Sh. Bhoop Singh R/o Village Madhupura PS Khurja City District Bulandsehar, UP. Sh. Kripal Singh stated that on the morning of 24.03.2013 a dead body of a young person was found near the MadhupuraKhurja Road in a wheat field and local police had taken the dead body. Both the accused persons pointed out the place of road side wheat field on Khurja Madhupura road where they had dumped the dead body of Ankur Sharma. Both the accused persons also stated before Sh. Kirpal Singh that on the morning of 24.03.2013 they had dumped the dead body of Ankur Sharma on the road side after killing him in Delhi. A pointing out memo was prepared at the instance of both the accused persons. Statement of Sh. Kripal Singh S/o Sh. Bhoop Singh was recorded u/s 161 Cr.P.C.
4. Thereafter IO along with his staff and both the accused persons reached at Police Chowki Khurja Junction where SI Rameshwar Kumar Police ChowkiInCharge told that an unknown dead body of a male person was found on 24.03.2013 near Madhupura Khurja Road in a wheat field and its postmortem vide no. 171/13 was conducted at Babu Banarsi Das Hospital, Buland Sehar, UP on the same day and the dead body was disposed of 28.03.2013 as the same remained unidentified even after their best efforts. Then the photograph of Ankur Sharma was shown to SI Rameshwar who identified the person as of unknown dead body found. Then SI Rameshwar handed over to him copy of Panchayat FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 3 of 90 Nama and copy of his Dairy No. 11 dated 24.03.2013 which showed that there was a tattoo mark on the right hand written as Ankur in Hindi and there were injury marks on the head and strangulation mark on the neck and the same were placed on the file. Ct. clerk Sh. Prabal Pratap Singh No. 864/CP, Police Post Khurja Junction, District Bulandshahar stated that on 24.03.2013 at 8:45 AM he had written General Diary No. 11 on the statement of Sh. Kalu S/o Sh. Shiv Ram R/o Village Madhupura District Bulandshahar UP. After that SI Rameshwar gave carbon copy of PM report no. 171/13 and original Panchayat Nama along with DD No. 11 dated 24.03.2013 PP Khurja Junction, Bulandshahar, UP and they were taken into possession through seizure memo. Statement of SI Rameshwar u/s 161 Cr.P.C. was recorded. After that IO along with other staff and accused persons came back to PS and statement of witnesses u/s 161 Cr.P.C. were recorded.
5. Accused were produced in the Court and two days PC remand of accused persons was taken from the Court and weapon of offence i.e. a blood stained iron rod of car jack was recovered at the pointing out of accused Manoj in the presence of other accused Kaushal @ Gulla from near Yamuna river near Commonwealth Games Village near Nizammuddin bridge road and the same was taken into police possession through seizure memo and deposited in malkhaana.
6. On 01.04.2013 carbon copy of PM report of deceased person Ankur Sharma along with other documents, blood stained clothes and right femur bone for DNA test and photographs were collected by SI Vasant Kumar from SI Rameshwar, Chowki incharge, Police Post FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 4 of 90 Khurja Junction and they were taken into police possession through seizure memo in the presence of complainant after due identification by the complainant. All the seized exhibits were deposited in malkhaana. Later on the original PM report and other documents of the deceased were also collected from IC PP Khurja Junction and seized through seizure memos. Blood stained seat cutting and blood stained floor mat cutting of the above car bearing registration number DL4CU2693 were seized with the help of FSL GNCTD team.
7. Call Detail Record (in short CDR) of mobile connection number 9911612632 of IDEA Cellular Ltd. along with CAF alloted in the name of deceased's wife Meena and CDR of Mob. 8506037115 of IDEA Cellular Ltd. along with Consumer Application Form (in short CAF) alloted in the name of deceased Ankur Sharma were collected from service provider along with location chart and Certificates u/s 65B of Indian Evidence Act (in short IEA). CDR of Mob. No. 9999184890 of Vodafone Mobile Service Ltd. issued in the name of accused Kaushal @ Gulla along with CAF, location chart and Certificate u/s 65B IEA were also obtained. The call detail records of 23.03.2013 at 10.05 am shows that accused Kaushal @ Gulla had a talk from his Mob. No. 9999184890 with deceased on his mobile 8506037115 for 28 seconds. The call detail records of 23.03.2013 at 5.48 pm shows that victim Ankur Sharma had a talk from Mob. No. 9999184890 of accused Kaushal @ Gulla with his wife Meena on her Mob. 9911612632 for 69 seconds. The call detail records of 23.03.2013 from Mobile Instrument of SPICE Co. with Mobile SIM No. 9999184890 and IMEI No. 911234909449280 recovered from accused Gulla indicate that accused Gulla had conversation from his FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 5 of 90 mob. no. 9999184890 with other accused Manoj on his mobile no. 9990563646 between 15:57 hours and 20:18 hours for 9 times. The CDRs of mobile No. 9999184890 of accused Gulla shows that at 2.26 AM on 24.03.2013 his position was at Greater Noida. It is stated that in the investigation carried out till then there were enough evidences against both the accused persons namely Kaushal @ Gulla s/o Sh. Devender Pal R/o H.No. 723/D, Gali No. 5, Pratap ViharII, Kirari Delhi and Manoj s/o Sh. Devender Pal R/o H.No. 723/D, Gali No. 5, Pratap ViharII, Kirari Delhi. Exhibits/seized articles of the case were sent to FSL GNCTD Rohini and the result was awaited (which was filed later on by way of supplementary charge sheet as well as by way of letter/application).
8. It is further stated that the complainant Sh. Jai Chand Sharma was examined and he stated that on 23.03.2013 he had reported the missing of his son Ankur Sharma at PS Aman Vihar vide DD No. 20A but by mistake he had recorded in his statement that it was DD No. 21A. The ownership of TATA Indica No. DL4CU2693 Blue Colour Engine No. 33338 Model No. 2003 and Chasis No. 39646 were collected and it was found that the car was registered in the name of Sh. S. K. Dua S/o Sh. Chandan Dua R/o A231, Meera Bagh, Paschim Vihar, Delhi. Mr. S.K. Dua was interrogated and he stated that on 07.03.2013 he had sold his Indica Car no. DL4CU2693 to Sh. Manoj in the presence of his neighbour Sh. Om Prakash and Mr. Kaushal Singh brother of Sh. Manoj. Sh. Manoj had taken away the car on 07.03.2013 and had given him delivery receipt and affidavit along with photostate copies of his PAN card and his D/L and also photostate copies of D/L and Election ID card of his brother Kaushal Singh. All the above FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 6 of 90 documents of Car and ID cards were seized through seizure memo. Both the accused persons are in J/C since their date of arrest.
9. After completion of the investigation charge sheet was filed before concerned Ld. Magistrate who took cognizance of the offense and after complying with provision of Section 207 CrPC committed the case to session for trial where after same was marked to this Court.
10. After hearing Counsel for parties and finding that prima facie case is made against the accused persons, requisite charges under Section 302/364/34 IPC was framed against both the accused persons by Ld. Predecessor of this Court. Charges were explained to both accused persons to which they pleaded not guilty and claimed trial.
11. In order to bring home the charges against accused persons prosecution examined as many as 27 witnesses including complainant Shri Jai Chand Sharma (PW4) and Meena (PW5), the father and wife of the deceased respectively.
12. After completion of prosecution witnesses, all incriminating material as appearing in the evidence were put to the accused persons and their respective statements were recorded under Section 313 CrPC and they chose to lead defense evidence. Accused persons examined three witnesses in defense i.e. DW1 Harish Kumar, DW2 Sh.Om Prakash and DW3 Sh. Amit Kumar.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 7 of 90 Prosecution Evidence Complainant and wife of deceased
13. PW4 Sh Jai Chand Sharma is the father of the deceased.
He deposed about the events that took place soon before and after missing of the deceased Ankur Sharma and sought to prove his missing report vide DD No. 20A dt 28.03.2013; his complaint Ex PW4/A dt 28.03.2013; his mistake in mentioning wrong DD number in his complaint Ex PW4/A; his handing over of photographs Ex PW4/B of the deceased to police, his taking of police to the place where deceased was last seen and preparation of the site plan Ex PW4/C; his identifying the accused persons; his joining investigation on 01.04.2013 and visiting Police Post Khurja on 01.04.2013, his identifying the photographs Ex P 1 to Ex P8 of the deceased and their seizure vide memo Ex PW4/D, handing over of some necessary documents by the Incharge, Police Post Khurja to the IO vide seizure memo Ex PW4/E, his identifying of clothes of the deceased kept in pullinda at Police Post Khurja, its handing over to IO by Incharge Police Post Khurja vide seizure memo Ex PW4/F. He also identified the case property i.e. blue color jeans having brownish stains, one dirty cream color shirt having brown stains, one dirty baniyan having brown stains, one dirty underwear and one dirty "Kara" which were collectively exhibited as Ex P9.
14. PW5 Ms Meena is the wife of deceased Ankur Sharma.
She deposed about her husband having received phone call on his mobile phone number 8506037115 from accused Gulla from mobile phone FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 8 of 90 number 9999___890; she having seen her husband leaving house with both accused persons; she having received phone call in the evening on her mobile phone number 9911612632 from her husband from the mobile phone number of Gulla informing that he was with them and would return by 10/10:30 PM; she having informed on asking her father inlaw about nonreturn of the deceased and deceased having left with accused persons. She also identified her signature on the Consumer Application Form (in short CAF) Ex PW5/A of her mobile phone number 9911612632, her CDR Ex PW5/B and entry at point X on Ex. PW5/B regarding the receipt of call at 5:48 PM on 23.03.2013 from the the mobile phone number 9999184890.
Arrest of accused persons and investigation carried out on 28.03.2013 till accused persons were produced in the Court on 29.03.2019
15. With respect to captioned subject prosecution has examined four witnesses i.e. PW7 Sh Kripal Singh, PW13 HC Raj Singh, PW25 SI Rameshwar Kumar, PW26 SI Vasant Kumar to whom initially investigation was handed over following registration of captioned FIR and PW27 IO Inspector Mahender Singh (now Retd.) who was then SHO of PS Aman Vihar and who took over the investigation from SI Vasant Kumar following alleged revelation of the commission of murder of Ankur Sharma and disposal of his body by the accused persons.
16. PW13 HC Raj Singh deposed having joined investigation with SHO/IO Mahender Singh on 28.03.2013, having reached the house of the accused persons where both were found apprehended by SI Vasant FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 9 of 90 Kumar and Ct. Devender, having witnessed arrest of the accused persons vide arrest memo Ex PW13/A and Ex PW13/B, having witnessed conducting of personal search of the accused persons vide personal search memo Ex PW13/C and Ex PW13/D, having witnessed making of disclosure of offence committed by the accused persons and recording of their respective disclosure statements Ex PW13/E and Ex PW13/F, accused persons pointing out the car bearing registration No. DL4CU2693 stationed outside their house, about said car having been checked/inspected, its having contained blood stains and its seizure vide seizure memo Ex PW13/G and depositing of case properties in Malkhaana.
17. He further deposed about IO/SHO taking permission from senior officer for going out of station; having gone with IO/SHO, SI Vasant Kumar, Ct. Pramod, Ct. Devender, Ct. Vinod and both accused persons to Khurja Bullandshaher; accused persons having pointed out the place where they had dumbed the body of the deceased; joining of Kripal Singh to the proceedings of pointing out by the accused persons, about Kripal Singh confirming about finding of a dead body of a male in the morning of 24.03.2013, about preparation of pointing out memo Ex PW7/A witnessed by independent public witness Kripal Singh and accused persons having admitted about commission of offense in the presence of Kripal Singh, then having visited the Police Post Khurja Junction, having met SI Rameshwar Singh who had disclosed about the finding of the dead body of a male in the morning of 24.03.2013, about panchnaama conducted, about having got the postmortem conducted, cremation of body performed on 28.03.2013, retaining of photographs & FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 10 of 90 clothes of the deceased, about having disclosed that dead body was of the boy whose photographs was shown to him by IO and after that coming back to Delhi and accused were produced in the Court on 29.03.2013 where after two days PC remand was taken to recover weapon of offense and about subsequent recovery of iron car jack rod at the instance of the accused Manoj in the presence of other accused Gulla.
18. PW25 SI Rameshwar Kumar deposed about police having met him on 29.03.2013 in police post and he having told them about the finding of the dead body of male in the morning of 24.03.2013, about conducting of panchnaama, of having got the postmortem conducted, having cremated the body on 28.03.2013, having identified the body with the photographs shown to him.
19. PW26 SI Vasant Kumar deposed about having recorded the statement Ex PW4/A of the complainant, having made endorsement Ex PW26/A on the complaint for registration of FIR, having visited the spot with the complainant; having prepared the site plan Ex PW1/C at the instance of the complainant, having been taken to the house of the accused persons by the complainant; having found two persons i.e. accused persons; having interrogated them who disclosed commission of murder of the Ankur in their car bearing registration No. DL4CU2693 and throwing of the dead body in the area of Khurja, Distt Bulandshaher; having informed about the same to SHO who with staff visited the house of the accused person; about SHO taking over the investigation to himself; SHO/IO having interrogated the accused persons and then went on to give the version as deposed to by the PW13 FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 11 of 90 HC Raj Singh.
20. PW27 IO Mahender Singh who was then SHO of PS Aman Vihar went on to depose the same way as was deposed to by the PW13 HC Raj Singh from the stage SHO joined the case at the house of the accused persons after having been told by the SI Vasant Kumar about the confession/disclosure of the offense by the accused persons, till the production of the accused persons in the Court on 29.03.2013 where after PC remand of accused persons were given for two days. He also deposed about having taken the charge of investigation from SI Vasant Kumar, about adding of Section 302 and 201 IPC after the disclosure of commission of murder and throwing of the body of the deceased by the accused persons.
21. PW7 Sh Kripal Singh deposed about the visit of 4/5 police officials in March 2013 at about 11:00 - 12:00 midnight, about having been asked about a dead body; he having informed them that he was not there on that day when body was found; having been asked by police official to sign paper to complete some formalities; he alongwith police officials having gone to some distance from his house but he remaining on the roadside as there was no one in his outhouse (Gher); he having not known whether other two boys were present with them or not; he having signed at point A on pointing out memo Ex PW7/A and about the wheat field which police officials visited to that night belonging to Harpal Lohar.
22. PW7 Kripal Singh however did not support the FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 12 of 90 prosecution version to the extent that police officials visited him with two boys whose name were disclosed as Kaushal and Manoj and who admitted before him that they had dumped the body of Ankur after killing him on the road side 150 mtr away from his house on 23.03.2013 in the morning of 24.03.2013 at 4 AM. He also denied having stated to the police that said two boys had identified the place where they had dumped the body of Ankur Sharma after killing him. On seeing the accused persons in the court he could not identify them saying that it was dark on that night. He also denied that any statement of him was recorded by the police officials.
Investigation during Police remand on 29.03.2013
23. Witnesses to the captioned aspect are once again PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 IO Mahender Singh. They cumulatively/substantially deposed about accused persons having been produced in the Rohini Court on 29.03.2013; about obtaining of police remand of accused persons for two days and about accused persons having pointed out a place towards bushes where they had thrown the rod i.e. car jack rod of iron and accused Manoj having taken out the rod from said place in the presence of he accused Gulla; about car jackrod admeasuring 36 cm; about same having blood stains; about having kept the said blood stained car jackrod into polythene thereafter into cloth pullinda and having sealed with seal of MSG; about having it into possession vide seizure memo Ex PW26/A (though it should have been exhibited as Ex PW26/D as witness PW26 had already exhibited his endorsement on the complaint Ex PW4/A as Ex PW26/A) and about having deposited the said rod in Malkhaana. Though PW13 is witness to FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 13 of 90 the recovery of blood stained iron car jack rod but he had not signed the seizure memo Ex PE26/A as witness.
24. PW26 SI Vasant Kumar alone deposed that accused persons took the police officials to two/three places in search of their clothes which they were wearing on the day of crime and which they had thrown. However, he alone deposed about having been taken to Mangolpuri naalla in search clothes but could not be recovered.
25. PW27 IO Mahender Singh alone deposed that site plan Ex PW27/1 of the place of recovery of the car jackrod was prepared bearing his signature at point M. He alone deposed accused persons having taken them to Wazirabad pul.
Investigation on 30.03.2013
26. On 30.03.2013 the Tata Indica Car bearing registration No. DL4CU2693 which was allegedly seized at the instance of the accused persons from outside their house, was taken to FSL Rohini for forensic inspection. Witnesses to this aspect are PW24 A. K. Srivastav, PW26 SI Vasant Kumar and PW27 IO Mahender Singh.
27. Their cumulative and substantial testimony is to the effect that the aforesaid car was taken to FSL Rohini from malkhaana under Road Certificate No.119/21/13 and at the request of the IO said car was inspected by PW24 A. K. Srivastava and his team and on thorough inspection of the car blood was found at two places i.e. at the FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 14 of 90 left hand front seat cover and floor mat to the left hand front seat. Cuttings from the blood stained portion of seat cover and blood stained portion of the floor mat were taken and handed over to SI Vasant Kumar in sealed condition with seal of AKS FSL which was taken into possession vide seizure memo Ex PW26/B (though it should have been exhibited as Ex PW26/E as witness PW26 had already exhibited disclosure statement of accused Kaushal @ Gulla as Ex PW26/B). PW24 also prepared crime detail scene report Ex PW24/A. Photocopy of inspection report is mark P27/A. The car was redeposited in the Malkhaana on the same very day.
28. Accused persons were produced in the court on 31.03.2013 and sent to JC.
Investigation on 01.04.2013
29. On 01.04.2013 SI Vasant Kumar alongwith Ct. Prahlad and complainant had visited Police Post Khurja and met Police Chowki InCharge SI Rameshwar Kumar who had shown the clothes of the deceased by opening pullinda sealed with seal of PM BSR and the clothes were identified by the complainant as that of his son, then he was shown eight photographs of the deceased taken just before the postmortem and complainant identified those photographs as that of his son. SI Vasant Kumar took into possession those pullinda which contained the clothes of the deceased resealed with seal of VK as well as pullinda containing femur bone of the deceased sealed with seal of PM BSR. Original Panchnaama dt 24.03.2013 and carbon copy of postmortem report were also taken into possession.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 15 of 90
30. Witness to this effect are PW4 Sh Jaichand Sharma, PW21 Ct Prahlad, PW 25 SI Rameshwar Kumar and PW26 SI Vasant Kumar. They substantially deposed to the same effect as noted in the preceding paragraph thereby further deposing that photographs Ex PW12/B1 to Ex PW12/B8 (also Ex P1 to P8) of the deceased taken just before the postmortem, were taken into possession vide seizure memo Ex PW4/D, original Panchnaama dt 24.03.2013 and carbon copy of postmortem report were taken into possession vide seizure memo Ex PW4/E, pullinda containing clothes of the deceased (collectively exhibited as Ex P9) sealed with seal of VK and pullinda sealed with seal of PM BSR containing femur bone of the deceased were taken into possession vide seizure memo Ex PW4/F. Supplementary statement of SI Rameshwar (PW25) were recorded there under Section 161 CrPC and after return from there case properties were deposited in Malkhaana and statements of Jaichand Sharma (PW4) and Ct. Prahlad (PW21) were recorded under Section 161 CrPC thereafter file was handed over to IO.
Development on 03.05.2013
31. On 03.05.2013 Ct. OM Prakash was sent by IO alongwith covering letter to Khurja to collect PM report and other attached documents. Ct. Om Prakash went there, met SI Rameshwar and brought postmortem (PM) report bearing No. 171/13 dt. 24.03.2013 and other attached documents.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 16 of 90
32. Witness to this effect are PW20 Ct. Om Prakash , PW27 IO Mahender Singh and to an extent PW 26 SI Vasant Kumar.
33. PW20 Ct. Om Prakash deposed to the effect of visiting Khurja, meeting SI Rameshwar Kumar and obtaining of PM Report bearing No. 171/13 Ex PW1/A and attached documents eight in number Ex PW1/C and handing over the same to IO. PW27 IO Mahender Singh deposed that with the permission of senior officer he deputed Ct. Om Praksh to collect PM report from the office of the SSP Bulandshaher and on the same day Ct Prahlad handed over him PM report and attached documents which were taken into possession vide seizure memo Ex PW26/C. PW26 Vasant Kumar deposed that Ct. Prahlad handed over the PM report and other attached documents to the IO on 03.05.2013 in his presence and which was taken into possession by IO vide seizure memo Ex PW26/C (though it should have been exhibited as Ex PW26/F as witness PW26 had already exhibited disclosure statement of accused Manoj as Ex PW26/C).
Case Properties sent to FSL on 03.06.2013
34. On 03.06.2013 case properties were sent to FSL. Witness to this effect are PW17 HC Pradeep who was working as MHC(M) and PW22 Ct. Balwant who had physically taken the case properties to the FSL.
35. PW17 HC Pradeep deposed to the effect that on 03.06.2013 he handed over one pullinda sealed with seal of PM BSR to FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 17 of 90 Ct. Balwan for depositing the same with FSL vide road certificate No. 116/21/13 Ex PW17/D (Original Register No.21 was shown and returned) and Ct. Balwan after depositing the same handed over the acknowledgement Ex PW17/E (OSR).
36. PW17 further deposed that he handed over two sealed envelops sealed with seal of AKS FSL, one envelop sealed with seal of MSG and one pullinda sealed with seal of VK to Ct. Balwan for depositing the same with FSL vide road certificate No. 117/21/13 Ex PW17/F (Original Register No.21 was shown and returned) and Ct.
Balwan after depositing the same handed over the acknowledgement Ex PW17/G (OSR).
37. PW22 HC Balwan deposed that he took the case properties in pullinda alongwith sample seal from MHC(M) to FSL Rohini under road certificates bearing Nos. 116/21/13 Ex PW17/B and 117/21/13 Ex PW17/F and deposited the same with FSL Rohini and returned the acknowledgement Ex PW17/E to MHC(M) Investigation on 25.06.2013 regarding ownership of Car bearing registration No. DL 4CU 2693
38. On 25.06.2013 IO alongwith Ct. Ashok Kumar made enquiry with respect to registered owner of the car bearing registration No. DL4CU2693. The car was found to stand registered in the name of S. K. Dua S/o Chandan Dua, R/o A231, SF, Meera Bahgh, Paschim Vihar, Delhi and on further enquiry it was found that S. K. Dua had sold FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 18 of 90 and delivered the said vehicle to accused Manoj on 07.03.213 vide documents and which documents were handed over to IO on 25.06.2013. Witnesses to above aspect are PW6 S. K. Dua, PW10 Om Prakash, PW3 Ct. Ashok Kumar, PW27 IO Mahender SIngh and PW11 Sh Satya Parkash.
39. PW6 Sh S. K. Dua, S/o Chandan Dua, sought to prove that he was the registered owner of the Tata Indica Car bearing registration No. DL4CU2693 and that he had sold the said car on 07.03.2013 in th presence of Kaushal Singh and Om Prakash to one Manoj vide delivery receipt Ex PW3/A1 and affidavits Ex PW3/A2 & PW3/A3 of Manoj. At the time of selling his car to Manoj he had taken photocopies of PAN card Ex PW3/A4 and driving license Ex PW3/A5 of Manoj. He had also taken photocopies of driving license Ex PW3/A6 and voter I Card Ex PW3/A7 of brother of Manoj namely Kaushal Singh. He had also provided photocopy of his voter I card Ex PW3/A8 to the IO and all these documents were taken by the IO vide seizure memo Ex PW3/A.
40. PW10 Om Prakash sought to prove having witnessed the selling of the Tata Indica Car bearing registration No. DL4CU2693 on 7.03.2013 by Sh. S. K. Dua in his presence to one Manoj vide documents Ex PW3/A1 to Ex PW3/A7 and he further sought to prove that police came to him and to Sh S. K. Dua in connection with enquiry regarding sell of the aforesaid vehicle and that all the aforesaid documents were given in his presence by Sh S. K. Dua to the IO who took them vide seizure memo Ex PW3/A. FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 19 of 90
41. PW3 Ct Ashok Kumar deposed to the effect of IO having made enquiry from S. K. Dua and his neighbour Om Prakash and they having deposed to the effect that S. K. Dua sold the vehicle to accused Manoj vide documents which S. K. Dua handed over to the IO in his presence and that of Om Prakash vide seizure memo Ex PW3/A. Documents handed over to the IO by S. K. Dua are Ex PW3/A1 to Ex PW3/A7 as noted above. PW27 IO Mahender Singh supported the same in his testimony.
42. PW11 Sh. Satya Prakash, Record Clerk Transport Department, Janakpuri Authority, brought record pertaining to vehicle bearing registration number DL4CU2693 and attested copy thereof was exhibited as Ex PW11/A (OSR). As per the said record the vehicle stood registered in the name of S. K. Dua, S/o Chandan Dua, R/o A231, SF, Meera Bagh, Paschim Vihar.
Evidence regarding discovery of dead body of deceased Ankur Sharma and its Panchnaama, postmortem etc. by UP Police.
43. It is the case of the prosecution that when accused pointed out the place where they had allegedly dumped the body of the deceased Ankur Sharma and when they joined a public witness Kripal Singh (from whose house at a distance of about 150 mtr the body of deceased was allegedly dumped by the accused persons) it was confirmed by Kripal Singh that a dead body of a male was found in the morning of 24.03.2013 and its information was given to the local police which had FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 20 of 90 carried out the panchnaama and other formalities. Thereafter, IO with others had visited the Police Post Khurja Junction and came to know how the body was discovered, panchnaama was carried out, body was sent for postmortem and photographed, after postmortem body was preserved for identification and was finally cremated on 28.03.2013 in the absence of identification.
44. Witnesses to this effect are PW1 Dr. Phool Kumar, PW7 Kripal Singh, PW8 Jeet Pal Singh, PW9 Kalu, PW12 photographer Ct. Surender, PW14 Ct. Pratap Singh and PW25 SI Rameshwar Kumar. Testimony of PW1 Dr Phool Kumar shall be dealt with separately under the heading Medical Evidence. Here it is suffice to note that he conducted the postmortem of the body found in the morning of 24.03.2013 on MadhupuraKhurja Road with letter "Ankur with further letters cut across" tatooed in the right forearm of the deceased, "Om" tatooed on the back of the right palm, picture of the Lord "Hanuman" tatooed on the right hand arm near shoulder.
45. Testimony of PW7 Sh Kripal Singh has already been noted above which is not being repeated here for the sake of brevity.
46. PW8 Sh Jeet Pal Singh is the Chowkidar with PWD Khurja and deposed to the effect that in the month of March an unknown dead body was found on the road side of the village. Police Officials came there, noted his name, carried out their proceedings and took away the body. He identified his signature on the Panchnaama Ex PW1/C (colly) at point X. He, however, deposed that he had neither seen FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 21 of 90 the face of the dead body nor any of his photographs or having stated to the police that he had seen injury mark on head and nose of the deceased.
47. Witness PW9 Kalu deposed to the effect that in the month of March an unknown body was found on the road side of his village. Police had come there, carried out their proceedings and taken the body. They had asked his name and parentage. He identified his signature on the Panchnaama Ex PW1/C (colly) at point Y. He alo deposed that he had neither seen the face of the dead body nor any of his photographs. He denied having identified the deceased from the photograph from the file of the police. He denied having seen any photographs of the deceased.
48. As per prosecution Kalu was the one who had reported the matter in writing regarding the lying of the dead body on the road side of his village to Kurja police post and his said information was recorded by the Police Post Khurja Junction vide GD No. 11 dt 24.03.2013.
49. Witness PW12 Ct. Surender deposed about his taking photographs of the deceased on 24.03.2013 at the Mortuary Babu Banarsi Dass District Hospital. He clicked 8 photographs from his Nikkon camera D3100 and after clicking the photographs he made his report Ex PW12/A in his writing bearing his signature at point A to the effect that photographs were clicked from Nikkon D3100. He took out the printout of those clicked photographs which are Ex PW12/B1 to Ex FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 22 of 90 PW12/B8 each bearing his signature and stamp on the back at point A. He on oath certified that said photographs were the photographs which he had clicked and no addition or alteration was done while taking print out.
50. Witness PW14 Ct. Pradeep deposed that on 24.03.2013 he was posted in the Police Post Khurja Junction and at about 8.45 AM one Kalu S/o Shiv Ram came to Police station and reported that he at about 8 AM had seen one dead body of unknown person on the road side having injuries on head and nose. On the basis of said information submitted by Kalu copy of which is Ex PW14/A (OSR) he recorded the same in General Diary vide entry No.11 dt 24.03.2013. He brought the Original Diary and exhibited the attested copy of the General Diary No.11 as Ex PW14/B.
51. PW25 SI Rameshwar Kumar deposed to the effect that on 24.03.2013 upon information having been furnished by Kalu vide Ex PW14/A and recorded vide GD No.11 Ex PW14/B, he with requisite documents along with Kalu and other staff reached the spot and found dead body of male lying on the road side. He further deposed that by that time HCP Dhirender from ROP also reached there and he directed HCP Dhirender to prepare documents for Panchnaama. On his direction five persons were called including Sheeshpal, Kalu, Lakhpat and Jeet Pal and were joined in Panchnaama proceedings. At the spot "Photoansh" Ex PW25/A and Panchnaama Ex PW25/B were prepared under his supervision by HCP Dhirender bearing his signature at point A, B and C. The carbon copy of GD No.11 dt 24.03.2013 Ex PW25/C and FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 23 of 90 Challansh Ex PW25/D vide which dead body was sent for postmortem was prepared. The dead body was shifted to district hospital by HCP Dhirender and report RI Ex PW1/C was prepared. At his direction HCP Dhirender also prepared request letter Ex PW25/E to CMO for conducting the postmortem. When he had seen the dead body he had found injury mark on the back side of the head and on the neck. He had found on the hand of the deceased word "Ankur" engraved. He also got the body photographed by Ct Surender. After postmortem doctor had handed over to constable the clothes of the deceased in sealed pullinda with seal of PM BSR and another sealed pullinda containing femur bone of the deceased, sealed with seal of PM BSR and were deposited in Malkhaana, ROP. He further deposed that as per rules prevalent in UP dead body of unknown was kept preserved till 72 hours after which same was cremated. Efforts were made to establish identity of the deceased but in vain and finally body was cremated on 28.03.2013.
Medical Evidence
52. PW1 Dr Phool Kumar conducted autopsy on the body of the decreased and sought to prove the postmortem report and related documents Ex PW1/A, about general description of the body of deceased, nature and extent of injuries found on the person of the deceased, about cause of death, about approximate time of death from the time of postmortem, about collection of clothes/articles worn by the deceased, collection of femur bone of the deceased for DNA profiling, handing over of these articles to the UP Police and inquest paper Ex PW1/C etc. FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 24 of 90
53. Following injuries were found on the body of the deceased as deposed to by PW1 and reported vide PM Report Ex PW1/A:
1. Lacerated wound size about 6 cm X 0.5 cm X bone deep on back of had about 5cm behind right ear.
2. Lacerated wound size about 3 cm X 0.5 cm X bone deep back of head about 2 cm from injury No.1
3. Abrasion with contusion size about about 5 cm X 2 cm on left side of neck
4. Abrasion with contusion size about 3 cm X 1.5 cm on right side of neck.
Forensic Evidence
54. PW18 Ms. Manihsa Upadhaya Sr. Scientific Officer FSL, sought to prove presence of human blood on clothes (exhibits E4) of the deceased collected from the body of the deceased at the time of autopsy, seat cover cuttings (E1) & mat cuttings (E2) collected from the seized Indica Car used in the offense, iron rod (E3) allegedly got recovered by accused persons, vide her Biological Report Ex PW18/A and Serological Report Ex PW18/B. Human blood on E1, E2 and E3 found were of GroupB whereas no group could be determined from blood stains found on iron car jack rod E3.
55. PW23 Dr Dhruv Sharma, Asst. Director (Biology), FSL Rohini, sought to prove his DNA report Ex PW23/A to the effect that DNA profile generated from source i.e. seat cover (ex.1) and mat (ex.2) cuttings, clothes (ex.3) of the deceased and femur bone (ex1 of different FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 25 of 90 parcel) of the deceased were found to be same.
56. PW24 Sh. A. K. Srivastava Retd. Dy. Director, FSL sought to prove examination of the Indica Car used in the offense and lifting of exhibits i.e. piece of seat cuttings Ex PW24/1 and mat cuttings Ex PW24/2 from the car and his detail crime scene report Ex PW24/A. Technological Evidence
57. PW15 Pawan Singh, Nodal Officer, Idea Cellular Limited, sought to prove CDR Ex PW15/A of mobile phone connection No. 8506037115, location cell ID Ex PW15/B of the said number, CAF Ex PW15/C of the said mobile phone number and as per which it stood in the name of the deceased Ankur Sharma, Copy of ration card Ex PW1/D provided by the consumer at the time of obtaining said connection, certificate Ex PW15/E under Section 65B of the Evidence Act in respect of above CDR and Cell ID. He also proved the CDR Ex PW5/B of mobile number 9911612632, certificate Ex PW15/F under Section 65B of I. E. Act, its CAF Ex PW5/A as per which said mobile phone connection number was in the name of Meena W/o Ankur Sharma the deceased, copy of election ICard Ex PW15/H provided by the consumer at the time of obtaining the said mobile phone connection number.
58. PW16 Sh Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Limited, sought to prove covering letter dt 17.06.2013, certificate under Section 65B of the I.E Act, CDR and Cell ID Chart in respect of mobile phone connection number 9999184890 collectively FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 26 of 90 exhibited as Ex PW16/A provided by the then Nodal Officer Deepak Tomar under his signature to the IO. He also brought and sought to prove the CDR Ex PW16/B and location chart Ex PW16/C of the said mobile phone connection number, certificate Ex PW16/D under Section 65B of I.E.Act, CAF Ex PW16/E as per which said mobile phone connection number stood in the name of Kaushal Singh S/o Devender Pal, copy of Driving License Ex PW16/F provided by the consumer at the time of obtaining said mobile phone connection number.
Witness to the Records
59. In this regard prosecution has examined as many as three witnesses. PW2 ASI Suresh Kumar working as Duty Officer on 28.03.2013 in PS from 8:00 AM to 8:00 PM Aman Vihar, PW17 HC Pradeep who was working as MHC(M) i.e record keeper/InCharge of Malkhaana and PW19 Ct. Pradeep Kumar.
60. PW2 ASI Suresh Kumar deposed to the effect that on 28.03.2013 complainant Jai Chand Sharma came to the PS and made his complaint regarding missing of his son Ankur Sharma and he accordingly recorded the said complaint in the Daily Diary vide DD No. 20A Ex PW2/A (OSR, he had brought the Daily Dairy in the court) and copy of the same was entrusted to HC Raj Singh for further necessary action. On the same day at 11:00 AM SI Vasant Kumar produced a rukka for the registration of FIR. Accordingly he registered the FIR through computer operator under Section 365/34 and made endorsement Ex PW2/C on rukka vide DD No. 25A. He further deposed that after FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 27 of 90 registration of FIR, original rukka and computer copy of FIR Ex PW2/B was handed over to SI Vasant Kumar for investigation.
61. PW19 Ct. Pradeep Kumar was working as computer operator on 28.03.2013 in CIPA room and had fed the contents of the rukka in computer on the instruction and supervision of Duty Office ASI Suresh Kumar and after completing the contents of the rukka FIR No. 130/13 was registered and computer printout Ex PW2/B of said FIR was taken out. He further deposed that during feeding of the contents and during taking out of the printout of said FIR the computer were operating properly and he had issued Certificate Ex PW19/A under Section 65B of the Evidence Act under his signature in this regard.
62. PW17 HC Pradeep deposed to the effect that on 28.03.2013 IO Mahender Singh deposited case properties i.e. One mobile phone of make SPICE with two SIMS, one Mobile phone of make OPAL with two SIMS, One Car bearing registration No. DL 4CU 2693 with copies of their respective seizure memo and one car jack rod in sealed pullinda sealed with seal of MSG. He deposited all these case properties in the Malkhaan by making entry in the register No. 19 vide entry No.1305/1 to 4 in his own handwriting. He brought the Register No.19 and submitted photocopy of the relevant entries running into three pages exhibited as Ex PW17/A.
63. PW17 further deposed that on 30.03.2013 IO Mahender Singh handed over two sealed envelops sealed with seal of FSL AKS DELHI which he deposited in the Malkhaana by making entry in the FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 28 of 90 register No.19 in his own handwriting vide entry No. 1305/5 copy whereof running into one page was exhibited as Ex PW17/B with original Register No.19 seen and returned.
64. PW17 further deposed that on 01.04.2013 SI Vasant Kumar handed over one sealed pullinda with seal of PM BSR which he deposited in the Malkhaana by making entry in the register No.19 in his own handwriting vide entry No. 1308 copy whereof running into one page was exhibited as Ex PW17/C with original Register No.19 seen and returned. His remaining testimony regarding sending of case properties to FSL has already been dealt with herein before under the heading "Case Properties Sent to FSL on 03.06.2013".
65. Testimonies of the prosecution witnesses deposed to by them during their respective cross examinations shall be reverted to during analysis as to whether prosecution has brought home the charges against the accused persons.
Defense Evidence
66. Accused persons examined three witnesses in their defense. First is DW1 Sh. Harish Kumar who happens to know accused Kaushal @ Gulla for the past 1112 year as he used to get his car repaired from the workshop of Kaushal. He had also seen his father and brother at the workshop. On 30.03.2013 Police had taken him to the PS and then he came to know about the present murder case.
67. He further deposed that prior to that, Kaushal had met FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 29 of 90 him alongwith Ankur on 23.03.2103 at about 11:00 AM 12:00 noon at his work place in Peeragarhi, Nagin Lake Apartment. He deposed that they had come in Indica Car being driven by Ankur. Kaushal got down from the car in his presence and Ankur left the place with car. Kaushal remained with him for about one hour. He (DW1) left the place as he (DW1) had to collect children of his employer from school but before that he gave his motorcycle to Kaushal who had to go to his workshop. At about 3:00 PM he received a call from Kaushal asking him if Ankur had returned or not to which replied in negative. At 5:00 - 6:00 PM Kaushal came to him in Peeragarhi and then he dropped Kaushal on his bike to his house at about 7:30 PM.
68. At night of the same day he received a call from Kaushal claiming that he had to leave his Bua in village as she was not feeling well. DW1 told him that his family would not permit him to leave at that hour. Next day which was Sunday he called Kaushal at about 9:00 AM that he could go then to drop his Bua to which Kaushal informed him that he had already dropped his Bua in the night.
69. He further deposed that on 30.03.2013 he was taken to PS and police enquired from him about Kaushal and he told them whatever he had deposed in the court. Police detained him in the PS for three days. He was still working in the Flat N. 308, Nagin Lake Apartment Peeragarhi. He further deposed that during those days Kaushal used to drive car in Behra Enclave.
70. DW2 Sh Om Prakash R/o D709/A Pratap Vihar deposed FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 30 of 90 to the effect that he was the owner of D709/A Pratap Vihar and had been staying there since 201011. He on seeing plot mark X in the site plan Ex PW4/C deposed that said plot belonged to him. It was adjoining "khali plot". He further deposed that other two plots bearing House No. 709 in the site plan belongs to one panditji. He further deposed that earlier he was having office under the name of Uttrakhand Properties & Builders across the TPoint near his house but he had shifted to Dehradun about 7/8 months ago (from the date of his testimony). He further deposed that Uttrakhand Properties shown in the site plan Ex PW4/C belonged to him and his office used to remain open 7 days of week. At the pointing out towards the accused persons he deposed that he knew both them but did not know their names. He knew them being children of Devender and he had got them house on rent in the gali. He further deposed that nothing had happened in his presence but he had come to know that they had committed some murder. It was around Holi of 2013. During that time he was in his house A709 and his office. No police official had met him in connection with this case. He had not seen any police officials visiting house of accused or his adjoining house.
71. DW3 Amit Kumar S/o Sh Birpal Singh, aged about 28 years R/o village Mirpur, district Aligarh, UP. He deposed that his mother Devindri Devi was a cancer patient. Around 20.03.2013 she had been sent to Delhi for treatment. At that time she was staying with him in Mirpur which is at a distance of about 100 KM from Delhi. One can come from his village to Delhi via Greater Noida. His mother did not get relief during course of her treatment here (in Delhi). On 23.03.2013 he had a telephonic talk with his mama Devender Pal and mother and she FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 31 of 90 was perturbed (jyada ghabra rahi thi). She pressed that he should come and meet her. He told his mama to send his mother back to the village. His mamaji sent his mother back in van to the village alongwith his son Kaushal @ Gulla who reached his village at about 3 AM on intervening night of 23/24.03.2013. Thereafter he kept having telephonic talk with his mama time and again. About 23 days thereafter his mamaji informed him that Kaushal had been picked up by police. As his mother was unwell and was receiving treatment in the native village, he could not come to Delhi to his mama. His mother subsequently expired.
72. Testimonies of the defense witnesses deposed to by them during their respective cross examinations shall be reverted to during analysis as to whether prosecution has brought home the charges against the accused persons.
Contention of State
73. Ld. APP for the State submitted that prosecution has successfully proved the chain of circumstances which admits of only one inference that it were the accused persons who had committed the abduction and murder of the deceased Ankur Sharma and such circumstances as proved are inconsistent with innocence of the accused persons. He has further submitted that complainant Jai Chand Sharma and wife of the deceased corroborated each other on the aspect that deceased was called by accused Kaushal @ Gulla and deceased had left his house in the company of the accused persons. He further submitted that wife of the deceased supported the version of the complainant which was told by her to him. He further submitted that Call Details Record of FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 32 of 90 the phone number of the accused and deceased support the prosecution version that accused Kaushal @ Gulla had given call to the deceased at about 10.05. AM on 23.03.2013. He further submitted that CDRs of phone of accused and wife of the deceased also proved that deceased had called his wife from the mobile phone of the accused Kaushal @ Gulla and told her that he was in the company of the accused persons and would return by 10/10:30 PM. He further submitted that prosecution has duly proved that deceased was last seen alive in the company of the accused persons and therefore it was for the accused persons to prove by evidence as to when they parted with the deceased and that at the time of parting deceased was alive, hale and hearty.
74. Ld. APP for the State has further argued that prosecution has successfully proved that Indica Car bearing registration No. DL 4CU2693 in which deceased was murdered was recovered at the instance of the accused persons from in front of the house of the accused persons. He further submitted that merely because no public persons were made witness to the recovery of the said car prosecution witness could not be doubted considering the facts that nowadays general public are reluctant to be witness to investigation for fear of harassment of visiting court time and again. He further submitted that there is no rule of law or prudence that testimony of police witnesses cannot be acted upon, if same are consistent and trustworthy. He further submitted that defense has not come out with any evidence or plea that police personnel were bearing any illwill against the accused person for any reason whatsoever so as to falsely implicate them.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 33 of 90
75. Ld APP for the State further submitted that disclosure statements given by the accused persons were admissible in evidence as it led to discovery of facts firstly that Ankur Sharma had been killed, secondly that Ankur Sharma was killed in the car bearing registration No. DL4CU2693 and thirdly that his body was dumped in the morning of 24.03.2013 at 4 AM on MadhupuraKhurja Road, UP. He further submitted that till the disclosure by the accused persons aforesaid disclosed facts were not in the knowledge of any one. He further submitted that said facts also got confirmed with the recovery of said car bearing registration No. DL4CU2693 containing blood stains, at the instance of the accused persons.
76. Ld. APP for the State further submitted that accused persons led the police party to the place where they had dumped the body of the deceased and it was only then it was discovered that a body of unknown male was found by the villagers in the morning of 24.03.2013 on the road side of MadhupuraKhurja Road and subsequently Police of Khurja Police Chowki did the panchnaama and got conducted the postmortem of the said deceased having tatooed "Ankur" on his right hand and finally body was cremated on 28.03.2013 when no identity could be established by UP Police. He further submitted that all this facts were discovered only when accused persons admitted of the crime and led the police party to the said place and thus the version of the accused persons as disclosed by them got corroborated.
77. Ld. APP for the State further submitted that accused persons also got recovered blood stained car jack rod of iron from bushes FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 34 of 90 in Yamuna river side near Commonwealth Villages near Nizammudin Bridge, Delhi. Hence, their involvement in the crime is established. He submitted that such above noted facts could be disclosed only by three persons i.e. by the person who has actually rendered it or secondly by the person who has seen other rendering it and thirdly by the person who had heard the actual doer admitting of having rendered those act. He argued that it is not the case of the defense that they had seen other doing all this or heard other admitting all this, which necessarily mean that it were the accused persons who had carried out the same. Hence, he argues that prosecution has successfully proved the guilt of the accused persons.
78. Ld. APP for the State has further submitted that in the said car blood stains were found on the left hand front seat cover as well as on the floor mat in front of the left hand front seat. He further submitted that forensic evidence has proved that blood stains found on the afore said seat cover and floor mat were of human and DNA profile generated from the blood stains seat cover and floor mat of the car, clothes and femur bone of the deceased, matched with each other, though no DNA profile could be generated from the dirty iron car jack rod but blood of human was found on the iron car jack rod. He further argued that accused persons have not plausibly explained how blood stains from the blood of deceased Ankur came in their car, if they had not murdered him.
79. Ld. APP for the State has further submitted that location of the mobile phone of the accused at about 2.26 AM on 24.03.2013 was FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 35 of 90 found near Greater Noida which goes to show that accused persons were going towards Khurja for dumping the body of the deceased and thus it corroborates the theory that it were the accused persons who had committed murder of the accused persons and had dumped the body on the road side of MadhupuraKhurja Road.
80. Ld. APP for the state further submitted that prosecution has successfully proved that accused persons identified the place where they had thrown the body. It also successfully proved that accused persons had taken the police officials to said place whereafter everything was unfolded. From there it was confirmed that the body of the deceased which was found in the morning of the 24.03.2013 was of the person whose photographs police had taken with them and that the clothes and photographs of the deceased taken at the time of the postmortem were identified by the father of the deceased as belonging to the deceased. He contends that prosecution also proved all the necessary formalities completed there in Khurja after the discovery of dead body of the unknown persons and various steps taken during the course of investigation.
81. Ld APP for the State summed up by arguing that prosecution successfully proved beyond reasonable doubt that deceased had gone with accused persons on 23.03.2013 at about 10:05AM, that at about 5:48 PM deceased called his wife on her mobile phone from the mobile of phone of accused Kaushal @ Gulla informing her that he was with both accused persons and would return by 10/10:30 PM, that since then deceased was not heard or seen alive by any one, that car of FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 36 of 90 accused persons containing blood stains were recovered at their instance from in front of their house, that they got recovered iron car jack rod with blood stains, that DNA from the blood stains found in the car matched with DNA of the accused drawn from his clothes and femur bone, location of the accused Kaushal was found towards Greater Noida at about 2.26 AM on 24.03.2013, that deceased died due to asphyxia due to throttling, that deceased had injury on the back side of his head, that photographs and the clothes of the deceased was identified by his father as belonging to the deceased and that dead body found on the road side of the MadhupuraKhurja Road was that of the son of the complainant and that accused persons themselves pointed out and identified the place where they had thrown the dead body of the deceased Ankur Sharma after killing him. Thus, he contends, chain of circumstances consistent with the guilt only of the accused persons stands proved and therefore he prayed that accused persons be held guilty.
Contentions of Defense
82. Before adverting to the contentions advanced at bar, it is worthwhile to note here that Sh Anil Panwar, Advocate, represented both accused persons since beginning but only towards the last two three dates of hearing accused Kaushal @ Gulla expressed his desire to discontinue the service of Sh Anil Panwar and demanded that he be provided a Counsel at the state expenses. Accordingly, Sh Anil Panwar was discharged from the obligation of representing accused Kaushal @ Gulla, though he continued to represent accused Manoj. Sh. Asheem Bhardawaj, Advocate, was appointed as Amicus Curie to represent the accused Kaushal @ Gulla and he was provided with complete copy of FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 37 of 90 evidence and chargesheet etc. so that he could render proper assistance to the court.
83. Their respective submission are noted here cumulatively. Ld. Defense Counsels have submitted that prosecution has failed to show that chain of circumstances allegedly proved lead to irresistible conclusion that accused persons participated and committed the offences alleged against them. They have submitted that various circumstances in the chain of events are such which does not rule out the likelihood of the innocence of the accused persons. They have submitted that complainant Jai Chand Sharma admittedly vide DD No. 20A dt 28.03.2013 recorded a missing report at 8:00 AM on 28.03.2013 and at that time he reported that his son Ankur had left house at 11:00 AM on 23.03.2013 saying that he was going to his friend for learning how to drive vehicle. They further argued that on the same day i.e. on 28.03.213 at 11:00 AM Jai Chand Sharma, the father of the deceased, got recorded his statement/complaint to the effect that on 23.03.2013 at about 10:00 AM accused persons called his son out side by calling on his mobile phone from the mobile of Kaushal and his son went outside with them and at about 5/5:30 PM his son from the mobile phone Kaushal @ Gulla called his wife on her mobile phone and informed her that he was with both of them and that he would return by 10/10:30 PM but his son did not return till then and he expressed suspicion that accused persons had abducted his son.
84. After referring to the testimony of PW4 Jai Chand Sharma in cross examination, Ld. Defense Counsels have questioned FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 38 of 90 that when all these facts were in his knowledge prior to 28.03.2013 then why DD No. 20A was only to the effect that his son had left his house at 11:00 AM on 23.03.2013 telling that he was going to his friend for learning how to drive vehicle. They submitted that this drastic improvement in the information from 8:00 AM to 11:00 AM on the same day could be attributed to only one fact i.e. information given subsequently is manipulated one to suit the requirement of investigation to help solve the case falsely and easily due to their inability to bring to book the real culprit. They have submitted that it was a blind murder case and there was no clue to catch the real culprit hence investigating agency in order to cover up their inability grabbed the easy target i.e. the accused persons and started manipulating evidence to implicate the accused persons and such subsequent statement/complainant of the complainant Jai Chand Sharma proves nothing but that only.
85. Ld. Defense Counsels have submitted that it sound strange that a wife whose husband had told her that he would return by 10/10:30 PM and who had asked her to prepare dinner for him, would remain inactive till next day evening and would not look for him frantically if not at night then at least next morning onwards or would not call him back at least on the phone of the Kaushal @ Gulla if at all he was with them as claimed by her. If she was unable to make call on her own she could have got it done with the help of her fatherinlaw, brotherinlaw or sisterinlaw as admittedly they all were available on the ground floor of the house she was living in. If she did not call her husband back, it means that she did not know with whom her husband was and the phone call which she received in the evening from Kaushal FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 39 of 90 @ Gulla was in fact call made by Kaushal @ Gulla to know about the whereabouts of the deceased as deceased had taken the car of Manoj from Kaushal @ Gulla.
86. They have further argued that arrest, personal search , recording of disclosure statement, recovery of car and iron rod is fictitious and planted one and was done in a planned manner. They have pointed out that in the personal search memos Ex PW13/C and Ex PW13/D it is reported that nothing was recovered from accused persons but at the same time it has been alleged that one mobile phone of make Spice with SIMs were found from the right side pocket of pant/trouser worn by the accused Kaushal @ Gulla and one mobile phone of OPAL make with two SIMs were found from the right side pocket of the pant/trouser worn by the accused Manoj. They contended that both facts were irreconcilable i.e. when mobile phones were recovered respectively from them then how their personal search memos shows that nothing was recovered from them or vice versa. They contended that recoveries of mobile phone were necessary for investigating agency to fit into the story they had woven and that's why subsequently mobile phones were shown to have been recovered from them. Be that as it may be, they contended that it has left trail of manipulation on the part of the investigating agency. Hence, they contended that at least at all important incriminating stages corroboration from independent public witness was required which is not available in the present case and therefore testimonies of only police witness cannot be acted upon to return findings of guilt of the accused persons.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 40 of 90
87. They have vehemently contended that prosecution has failed to prove that offending car bearing registration No. DL4CU2693 was recovered at the instance of the accused persons or that it was recovered from in front of or near the house of the accused persons. They have drawn attention of the court to the testimonies of PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 IO Mahender Singh to convey that all three had pointed out different places where the vehicle was allegedly found stationery in front of or near the house of the accused persons. They have contended that Gali No. 5 which houses house of the accused persons and that of the complainant, as per one of the witness PW13 is so narrow that only Indica type car could pass through. Hence, they contend that it was impossible that one could keep parked his car in the "Gali" since 24.03.2013 till its recovery on 28.03.2013, as that would block the passage inviting objection from the public.
88. They have further argued taking cue from the testimony of one these witness that investigating agency remained in or outside the house of the accused persons for 7/8 hours on 28.03.2013 but did not bother to join any of the neighbour, family members of the accused persons or at least the complainant who had allegedly gone along with them or who was at least available nearby being resident of the same "Gali". They further contended that it might be possible that neighbourers and family member of the accused persons would have refused to join investigation but father of the deceased would not have refused to be witness to the recovery of the car particularly after allegedly coming to know that accused persons were the killer of his sons. No effort to join public witness or at least the complainant makes FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 41 of 90 the recovery of car at the instance of the accused persons doubtful in light of varying testimonies of aforesaid three witnesses regarding the place where offending car was stationed. It has been contended that car has been planted on the accused persons after recovering it from a place where it was abandoned by the real culprits because it was easy to be planted on the accused persons than on any one.
89. Similarly it has been contended by them that recovery of iron car jack rod from the bushes of Yamuna riverside near Nizzammuddin Bridge, Delhi was also doubtful for want of failure to join public witness and has in fact been planted upon accused persons. They have drawn attention to the testimonies of witness PW13, PW26 and PW27 to convey that it has been deposed to by one of them that they were in police Uniform and the area was frequented by many passersby and IO did try to stop some of them for the purpose of making witness to the recovery proceedings but none stopped. Ld. Defense Counsels submitted that it was not digestible that a police person with three star on his shoulder alongwith with other police officials tried to stop passersby and none would stop. They contends that this make the recovery of iron rod at the instance of the accused persons a very very doubtful affair. They argued that it would have been altogether different matter if the witness had deposed to the effect that passersby stopped but did not join investigation citing some reasonable excuse. They submitted that even then IO would have been under duty to serve them with notice and note down name and address of the person refusing to join investigation. Hence, they contended that alleged recovery of iron car jack rod allegedly at the instance of the accused persons cannot be FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 42 of 90 believed.
90. Ld. defense Counsels have further argued that even otherwise alleged rod cannot be taken as offending material as the same was never taken to the doctor who conduced the postmortem to seek his opinion as to whether the injuries found present on the back side head of the deceased could have been caused by the said rod nor was the said rod shown to the doctor when he was in the witness box to have his opinion on the rod qua the injuries found on the head of the deceased. It has been further argued that even otherwise blood stains allegedly found on the rod did not match with the blood found on other material.
91. Ld. defense Counsels have further argued that prosecution/investigating agency story that accused persons had kept offending car parked in front of or near their house with blood stains exposed to naked eyes cannot be digested. They contend that any person after committing crime if not going to submit to law, would naturally destroy all visible evidences. They contended that it sound very strange and impossible that guilty would keep the car with seat cover showing blood marks/stains visible to naked eyes. They contended that if it had been the case of the investigating agency that on minute inspection of the car by forensic experts traces of blood stains were found here and there then it could have been understood or had it been a case that the offending car was impounded/found immediately after the murder so much so that accused persons had no time to remove blood stains then also theory could have been understood but, they contended, it is not possible that accused persons would keep the car for four days in such FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 43 of 90 condition with blood stains visible to naked eyes. Hence, they contended, this also make the recovery of the offending car at the instance of the accused persons doubtful and proves that it was planted upon the accused persons being easy target as car belonged to accused Manoj.
92. Ld. defense Counsels have further argued that although prosecution has not led any evidence to prove the manner in which crime was allegedly committed but reliance upon the disclosure statement for the manner Ankur was killed makes the entire story unbelievable. As per prosecution when deceased was saying bad words about the wife of Manoj then both slapped the deceased continuously and thereafter Kaushal @ Gulla came from back seat to front seat then strangulated Ankur who later on fallen on the front side foot area. They contended that if this was accepted then where was no room for the deceased to fall on the front foot area as there accused Kaushal would be standing. Similarly it was alleged that accused taken out jack rod from the diggy of the car which meant car must have been stopped but there was no investigation in this regard. They further contended that even otherwise it was for the prosecution to prove the manner in which crime was committed if it has come out with the manner it was performed and hence, they contended that prosecution has failed to prove the same as admittedly there is no evidence to this effect.
93. It has been further contended by them that prosecution had miserably failed to prove that accused persons had pointed out the place where they had allegedly dumped the body of the deceased. It has been contended that PW7 Sh Kripal Singh who allegedly witnessed the FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 44 of 90 pointing out memo Ex PW7/A did not support the prosecution story that accused persons had gone there and in his presence had admitted the guilt and about dumping of the body at such place or having pointed out the said place to the police. It is contended that he despite being pointed out to the accused person by Ld APP as the persons who had came on that night and pointed out the place, did not identify the accused persons. Hence, it has been contended that the alleged pointing out place of dumping of dead body of the deceased cannot be said to have been proved.
94. Ld. Defense Counsels have further argued that simply because location of the mobile phone of the accused Kaushal @ Gulla was shown at about 2.26 AM of 24.03.2013 at Greater Noida he could not be held guilty of the crime alleged against him particularly when he by cogent evidence had proved that he had gone towards that direction to drop his bua in village Mirpur, Distt Algarh. It has been further contended by Ld. defense Counsels that from the CDR Ex PW16/B of mobile phone of accused Kaushal @ Gulla it was clear that his phone was continuously working and he had been in touch with one or other caller. It has been argued that admittedly accused Kaushal @ Gulla is not alleged to be professional killer that he would not get disturbed after commission of crime but his phone call details shows that he was continuously attending call or making call throughout even after the time of alleged incident which was not possible for the first time offender and particularly when accused persons had no premeditation to commit crime as per the prosecution itself. Hence it is contended that accused persons have been falsely implicated.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 45 of 90
95. It has been further contended for the arguments' sake that even if case of the prosecution was accepted as true then also accused persons could not be held guilty of murder but their case would fall under 1st exception of the Section 300 IPC and no ingredients of Section 364 IPC is made out.
96. It has been argued that in any case there was no evidence against the accused Manoj as he was falsely implicated because the offending car was of Manoj. It has been argued that investigating agency despite collecting the CDR of mobile phone of Manoj did not place on record as same was showing his location at different place at the alleged time of incident. It has been argued that an adverse inference be drawn against the prosecution for not placing the CDR of the mobile phone of the accused Manoj despite IO admitting that he had obtained CDR of the phone of the accused Manoj. It has been prayed that accused persons be acquitted with adequate compensation and action against the erring police officials be taken.
Contention of State in rebuttal
97. Ld APP for the State has argued that any lapse, if any, on the part of the investigation agency should not result in premium to the accused that is to say accused cannot be benefited from such lapse. It has been further argued that public witness PW7, PW8 and PW9 may not have supported the prosecution entirely but they certainly supported the prosecution to the extent that a dead body was found on the road side of MadhupraKhurja Road in the morning of 24.03.2013. It has FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 46 of 90 been further submitted that PW7 did support the prosecution case to the extent that police personnel had come to him on the intervening night of 28/29.03.2013 and he along with police officials had gone to the place where dead body was found. Similarly PW8 and PW9 also supported the case of the prosecution to the extent that dead body was found on such day, time and place afore said, that Panchnaama was conducted and that police officials of this case had enquired from them. Hence, he contended that it cannot be said that they did not support the prosecution.
98. Ld. APP for the State has further submitted that prosecution has successfully proved that deceased was last seen in the company of the deceased and therefore it was for them to prove when they parted with, the deceased was alive, hale and hearty. He further submitted that the evidence on the part of the defense was oral without any documentary support. If accused Kaushal had gone to drop his bua on the fateful night then he should have led evidence to the effect from who he took the alleged van, its registration number, ownership etc. Further, medical record of bua who was allegedly taking treatment at his house should have been brought on record. It has been further argued that if deceased had taken away the car then some steps should have been taken by them for tracing the vehicle or at least police should have been informed about nonreturning of the vehicle. Further, it has come in evidence that DW1 was called by accused Kaushal to know about as to whether Ankur had returned, Ld APP posed a question why accused Kaushal would ask DW1 in this regard when it was not settled that Ankur would returned to DW1; when DW1 had not lent the car;
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 47 of 90 when DW1 was allegedly not friend of Ankur and when accused Kaushal allegedly had not instructed Ankur to come back to DW1. This all, he contends, show that testimony of DW1 had no worth.
99. So far as non involvement of public witnesses is concerned it has been argued that police witnesses cannot be doubted for want of public witnesses if otherwise their testimonies are consistent and trustworthy. He has further argued that in any case witness can lie but circumstances cannot and in the present case admittedly car belonged to accused Manoj and it contains blood of the deceased therefore it was for them to explain and prove otherwise, irrespective of the question whether the car was recovered at their instance or police recovered it on its own.
100. It has been further argued that in the entire defense evidence it has not been disclosed where the accused Manoj was on the fateful night. It has been further argued that in his statement under Section 313 CrPC also he did not reveal where was he on that fateful night. Similarly in his statement under Section 313 CrPC accused Kaushal also did not reveal where the deceased had headed for with his car. If deceased had taken his car then deceased must have disclosed the destination as well but accused was silent. It has been submitted that statement under Section 313 CrPC is not a mere formality but it provides substantial opportunity to explain the circumstances appearing against him in evidence but if accused chooses to remain silent or does not explain properly then appropriate adverse inference must be drawn against him.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 48 of 90
101. Drawing from the various suggestion and case put by defense to prosecution witnesses, Ld. APP for the state has argued that it has been admitted by the accused person that father of the deceased received a call from the employer of the deceased informing that his son had not come, that police man visited accused Kaushal on 25.03.2013 and gave him two days time for searching the deceased, that accused Gulla took photographs of the deceased to search him. It has been argued that defense did not examine the relatives of the complainant who had allegedly noticed the car of the accused lying abandoned. He has argued at least name of the place should have been suggested where the car was allegedly found lying abandoned. It has been further argued that wife of the deceased talked to her husband stands proved because she was asked in cross examination as to whether she had asked her husband why he was calling from the mobile of accused Gulla. Ld. APP for the State has finally submitted that from the circumstances proved on record there was inescapable inference that it were the accused persons who had killed the deceased Ankur and thrown his dead body on MadhupuraKhurja Road, hence, he prayed for returning findings as to the guilt of the accused persons.
102. Ld. APP for the state in support of his contentions has relied upon Rohtash Kumar v. State of Haryan; Criminal Appeal No. 896/2011 to contend that minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety; to contend that law permits the court to take into consideration the deposition of hostile FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 49 of 90 witness, to the extent that the same is in consonance with the case of the prosecution and is found to be reliable in careful judicial scrutiny; to contend that Section 313 Cr PC cast a duty upon the accused to come out with explanation in respect of incriminating substances associated with him; and to contend that there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon. He has further relied upon Md. Ishaque and Ors. v. State of West bengal & Ors; Criminal Appeal No. 1421/2007 (decided by Hon'ble Supreme Court) to contend that mere fact that some of the witnesses are interested witnesses that by itself is not a ground to discard their evidence, the evidence taken upon as a whole supports the case of the prosecution. He has further relied upon Ranjeet Kumar Ram @ Ranjeet Kumar Das v. State of Bihar; Criminal Appeal No. 1831/2011 (decided by Hon'ble Supreme Court) to contend that even if investigation is defective, the rest of the evidence must be scrutinised independently of the impact of the defects in the investigation otherwise the criminal trial will plummet to the level of investigation and to contend that defective investigation cannot be a ground for discrediting the prosecution version. He also relied upon Aftab Ahmamd Anasari v. State of Uttranchal; Criminal Appeal No. 836/2005 (decided by Hon'ble Supreme Court) to contend that men may tell lies but circumstances do not. He has lastly relied upon Tapubha Bhagvanji & Ors v. State of Gujrat; AIR 2002 SC 2794 to contend that it is not sufficient, while arguing, to say that a witness is interested witness without putting anything in cross examination as to why and how he is interested witnesses and without showing any good reason as to why he should falsely implicate the accused.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 50 of 90 Admitted or Otherwise Undisputed facts
103. Before proceeding further it will be relevant to note down the admitted or otherwise undisputed facts as that will dispensed the Court with the requirement to discuss the testimonies of witnesses on those aspects. Following facts are admitted or otherwise undisputed:
1. Recording of DD No. 20A dt 28.03.2013 Ex PW2/A;
2. Registration FIR No.130/13 and its Copy Ex PW2/B and other formalities (not the investigation and its contents) connected with the registration of FIR such as endorsement etc.;
3. Mobile phone No. 9999184890 belonged to accused Kaushal @ Gulla, Mobile phone No. 850603711 belonged to deceased Ankur Sharma, mobile phone No. 9911612632 belonged to Smt. Meena, the wife of the deceased, mobile phone No. 9718001590 belonged to the father of the deceased namely Sh Jai Chand Sharma;
4. Mobile phone Nos. 9990563646 and 9540987409 belonged to the accused Manoj (though there is no proof in this regard but it was not disputed at all);
5. Making of call from mobile phone number 9999184890 of the FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 51 of 90 accused Kaushal @ Gulla to mobile phone No. 8506037115 of deceased at 10.05 AM on 23.03.2013;
6. Making of call from mobile phone number 9999184890 of the accused Kaushal @ Gulla to mobile phone No. 9911612632 of the wife of the decease at 5:48 PM on 23.03.2013 (but it is in serious dispute as to who was the caller as per prosecution it was the deceased whereas as per defense it was the accused Kaushal);
7. Accused Kaushal was in and around Greater Noida at about 2:26 AM on 24.03.2013 (as per prosecution he had gone to Khurja to throw the corpse and as per defense he had gone to drop his Bua in her village);
8. Tata Indica Car bearing registration No. DL4CU 2693 belonged to accused Manoj having been purchased by him from Sh S. K. Dua on 6/7.03.2013 by way of delivery receipt and affidavit and other documents supplied as an identity and address proof and witnessed by Om Prakash and accused Kaushal Singh;
9. Dead body that was found on roadside of MadhuuraKhurja Road on 24.03.2013 was of deceased Ankur S/o Jai Chand Sharma;
10. Postmortem Report of the deceased Ankur, cause of death FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 52 of 90 and injuries mentioned therein, photographs Ex P12/B1 to Ex PW12/B8 of the dead body of the deceased taken before the postmortem are also not questioned or disputed;
11. Biologialc and Serological Reports, Forensic report including matching of DNA profiles {as PW18 Ms Manisha Upadhya, Sr Scientifc Officer (Biology), FSL, Rohini who proved the biological ExPW18/A and serological report PW18/B and PW23 Dr. Dhruv Sharma, Asst Director(Biology), FSL, Rohini, who proved the DNA report Ex PW23/A, were not cross examined} AND
12. Record of MHC(M) Ex PW17/A to Ex PW17/G (not questioned) Analysis and Conclusion
104. In the light of aforesaid admitted or otherwise not disputed position it has got to been seen whether prosecution has been able to bring home the charges against the accused persons. Admittedly, there is no eye witness to the incident/offence and prosecution is attempting to prove the charges against the accused persons on the basis of circumstantial evidences including last seen evidence.
105. By now law regarding circumstantial evidence has been FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 53 of 90 well settled and in nutshell gets extracted in the words of Hon'ble Supreme Court in R.Shaji v. State of Kerala; AIR 2013 SC 651 that "prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weakness in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstance on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis, except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused."
106. Keeping the aforesaid principle/law in mind, this court proceeds to examine first the last seen evidence. It is the claim of the prosecution that accused Kaushal @ Gulla by giving a call at 10:05 AM on 23.03.2013 from his own mobile phone bearing consumer No. 9999184890 to the mobile phone of the deceased bearing consumer No. 8506037115, called him out of his house. Defense has not disputed that accused Kaushal gave call to the deceased and deceased Ankur went alongwith accused Kaushal @ Gulla but presence of accused Manoj or that deceased went with accused Manoj also has been seriously disputed. In fact as per alleged disclosure statements Ex PW26/B and Ex PW26/C (relied upon by the prosecution) of both accused persons also FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 54 of 90 accused Manoj had joined deceased Ankur and accused Kaushal at 7:30 PM on 23.03.2013. In these circumstance it has got to be seen if prosecution has proved beyond reasonable doubt that accused went alongwith both accused persons at 10:05 AM on 23.03.2013.
107. PW4 father of the deceased Jai Chand Sharma first reported the matter to police vide DD No. 20A Ex PW2/A at 8:00 AM on 28.03.2013 to the effect that his son had left his house at 11:00 AM on 23.03.2013 saying that he was going to the house of his friend for learning how to drive vehicle and had not returned till the time of reporting. In the said missing report he did not take the name of the friend whose house his son had allegedly gone on his own nor did he state about his son having received call from accused Gulla or accused calling him out of house and his son going with him. However, he had different story to tell in his subsequent complaint Ex PW4/A made on the same day at about 11:00 AM.
108. In the complaint Ex PW4/A he stated that on 23.03.2013 at about 10:00 AM on the mobile phone 8506037115 of his son Ankur Sharma, Gulla and Manoj who lived in neighbourhood, from mobile phone 9999184890 Gulla called his son out (of his house) whereafter his son went out and on the same day at about 5 5:30 PM his son Ankur called his wife on her mobile phone 9911612632 from the mobile phone 9999184890 of Gulla and told his wife that he was with Gulla and Manoj and that he would return by 1010:30 PM.
109. PW4 Jai Chand Sharma when appeared in the witness FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 55 of 90 box he in his examinationinchief deposed that on 23.03.2013 at about 10:00AM his son received call of Kaushal @ Gulla on his mobile phone No. 8506037115 and called his son outside his house. His son went out of the house and in the evening wife of his son received phone call from the telephone number of Gulla on which his son informed his wife that he would return at about 10/10:30PM but he did not return back at night. On 24.03.2013 he received telephone call from the office of Ankur informing him that Ankur had not come to his duty on 23.03.2013 nor on 24.03.2013. On asking from the wife of Ankur as to why Ankur had not gone for his duty wife of Ankur told him that Ankur had gone out of home and had not returned since then. She also told him that Ankur had gone with Kaushal and Manoj. After taking phone number of Gulla from the mobile phone of his daughterinlaw he called Gulla and asked where his son was to which Gulla replied that he (Gulla) was in Gurgaon and he would meet him next day but he did not tell anything about his son.
110. In cross examination PW4 Jai Chand Sharma deposed that on 23.03.213 he had left for his duty at about 8:00 AM and he had no personal knowledge of the events of 23.03.2013. He was told about the events of 23.03.2013 by his daughterinlaw on his asking on 24.03.2103. Thus, he himself had not seen the deceased alive last in the company of either accused Kaushal @ Gulla or accused Manoj or both. He was told by his daughterinlaw i.e. wife of the deceased Ankur Sharma. His testimony for last seen evidence is not worth consideration except for corroboration of what wife of the deceased had told him.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 56 of 90
111. Prosecution has examined Ms. Meena, wife of the deceased as PW5 to prove that accused was last seen alive in the company of both accused persons. Though statement of Ms Meena should have been recorded by police on 28.03.2013 before proceedings further for investigation towards the accused persons but strangely police had recorded statement of Ms. Meena under section 161 CrPC only on 24.05.2013 when accused were already in custody, accused persons had already allegedly admitted of their guilt and facts of dead body of Ankur having been postmortemed, photographed and cremated etc. were already known. There is no explanation either from the investigating agency or from prosecution as to why her statement was recorded so late wherein despite everything having been discovered she still expressed suspicion upon accused persons of having committed the crime. Here, it is worthwhile to note that date mentioned in her statement u/s 161 CrPC is not clearly legible but become visible/legible clearly when seen from the reverse side that it was recorded on 24.05.2013. In any case it cannot be 24.03.2013 as by that day none of the family members of the deceased had approached police nor police had undertaken investigation before 28.03.2013.
112. In her statement under Section 161 CrPC dt. 24.05.2013 she had stated that on 23.03.2013 at about 10:00AM her husband (Ankur) told her that his friend Gulla who lived in the neighbourhood had called him by calling him on phone and he would thereafter go to Safdarjung Hospital. Her husband called her at about 5:45 PM on her mobile phone 9911612632 from the mobile phone 9999184890 of Gulla and told her that he was with Gulla and his brother Manoj and that he FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 57 of 90 would return home by 10:30 PM but he did not return. So in her statement given to the police she did not tell that she had seen her husband going out of his house in the company of both the accused persons.
113. When she appeared in the witness box as PW5 she in her examinationinchief deposed that on 23.03.2013 at about 10:00 AM her husband had received a call on his mobile phone No. 8506037115 and she asked her husband on which he replied that it was Gulla who had called him. After receiving the said call, her husband left the house telling her that he would be back in half an hour's time. When her husband went downstairs she looked from the balcony of her house which was on the first floor and saw both accused present in the court namely Gulla and Manoj, standing in the gali and were waiting for her husband. She saw both of them taking her husband with them. Her husband did not return in the stated time and she waited for her husband.
114. She further deposed that in the evening at about 5:30 PM she received a telephone call on her mobile phone bearing No. 9911612632. The said call was made from the mobile phone No. 9999___890 whose middle digit she did remember. It was her husband who called from the said number and told her that he was with Gulla and Manoj and would return at about 10:30 PM. Her husband asked her to prepare the dinner by that time. However her husband did not return by 10:30 PM and she waited from him. He did not come back the whole night. On the following day evening i.e. on 24.03.2013 her fatherinlaw FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 58 of 90 inquired about her husband from her and she told him that Ankur had not returned home the whole night and told him that perhaps he (Ankur) had gone for work at Safdarjung Hospital where at times he used to work night shift. Then her fatherinlaw called the Contractor under whom her husband was working who told her fatherinlaw that her husband had not come for work.
115. Her further testimony in examinationinchief is also important to be looked into. She further went on to depose that on next day i.e. on 25.03.2013 she herself and her motherinlaw Pushpa had gone to PS Aman Vihar and told them that her husband had not come back since 23.03.2013. Police had sent two constables with her whom she took to the house of accused Gulla to make enquiries about her husband. Said police officials made enquiries from Gulla who told them that they had left the Ankur at his work place i.e. Safdarjang Hospital.
116. In cross examination she deposed that her husband got appointment in Safdarjang Hospital in the year 2009. Generally the duty hours of her husband was from 11:00 AM till 4:00 PM and he used to come back by 6:00 PM. However, his duty used to change and at times he used to be given night shifts. Her statement was recorded by the police on 25.03.2013 but she did not remember whether she had signed the same or not. She deposed that she had told the police in her statement that on 23.03.2013 her husband after receiving the call had left saying that he would be back in half an hour. On confrontation with her statement Ex PW5//DA it was not found there.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 59 of 90
117. She categorically admitted that she had not told the police that when her husband went down stairs she saw from the first floor both the accused standing in the gali waiting for her husband and that she saw both of them taking her husband. She denied the suggestion that she had not stated said fact as she had not seen any one standing in the gali. She was confronted with her previous statement Ex PW5/DA where it was not recorded her saying that her husband did not return in half an hour. She deposed that she had not told the police that on telephone her husband told her to prepare dinner and that he would come by 10:30 PM. She denied all the suggestion given by the defense. However, she deposed that first time she had a talk with her fatherin law regarding non coming of her husband in the intervening night of 23/24.03.2019 in the house itself. She further deposed that police had recorded her statement on 25.03.2013 when she had visited PS Aman Vihar. She further deposed that police had not recorded in her statement that after lodging of her complaint two constables came with her to the house of the accused Gulla who told them that they had left Ankur at Safdarjang Hospital. She denied the suggestion that on 23.03.2013 Gulla had called her to enquire as to where husband had taken his vehicle.
118. At this stage it will also be relevant to note the stand taken by the accused persons in their statement under Section 313 CrPC, with respect to incident of alleged leaving of Ankur in their company at about 10:05 AM on 23.03.2013. Accused Kaushal in his such statement stated that he and deceased Ankur were friends from childhood and on 23.03.2013 Ankur had requested him to lend him FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 60 of 90 (Ankur) their car till evening. Car belonged to his brother Manoj and he (Gulla) agreed to lend the car to Ankur. Ankur had told him that he (Gulla) should call him (Ankur) when he (Gulla) should leave with car for his (Ankur) place. Accordingly Gulla called him up. After reaching the gali near his house Gulla handed over the car to Ankur and after dropping Gulla at Nagin Lake Apartment, Peeragarhi at the work place of Harish, Ankur went away with the car. As Ankur did not return back by evening he tried calling him up but his phone was not reachable. He (Gulla) then called his wife (Meena) who told him that Ankur would be coming by around 1010:30 PM. Accused Manoj in his such statement simply stated that it was incorrect that deceased went him too on 23.03.2013 at 10.05 AM. He stated he was not present there in the gali.
119. In the light of the stand taken by the accused Kaushal @ Gulla it is not difficult to hold that deceased Ankur left his house in the company of accused Kaushal @ Gulla on 23.03.2013 at about 10:05 AM. But presence of accused Manoj in the morning of 23.03.2013 at 10:05 AM alongwith deceased Ankur Sharma and accused Gulla, is not proved for the reason that PW4 Jai Chand Sharma himself had not seen deceased leaving his house in the company of accused persons, particularly with accused Manoj. Secondly, PW5 Ms Meena made substantial improvement in her testimony in the court. In her statement to the police she had not stated that she had seen both accused person standing in Gali waiting for her husband and that she had seen them taking her husband with them but in court she deposed to the same effect. Before police she stated that her husband while going out had told her that afterwards he would go to Safdarjang Hospital but in the court FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 61 of 90 she deposed that her husband had left house saying that he would be back in half an hour.
120. If Ankur had left house saying that he would be back in half an hour then her conduct appears unnatural for not trying to contact him till evening to know as to where he got stuck and why he did not come in half an hours as told by him. Further, if he in the evening again told her that he would return by 10/10:30 PM then also her conduct is unnatural in not trying to contact him when he did not turn up by 10:30 PM. Any normal human being would naturally make endeavor to contact him and would rest only after knowing his safe presence at one place or other place. Even if it is assumed that she would have thought that he might have gone to his duty for night shift, then also her conduct appears unnatural in not trying to contact her husband when he did not turn up by next morning or at least by noon. In this fast growing information technology era every human has become restless and have no patience to wait 8/10 hours to know about safety of near and dear one living together. They remain in touch with near and dear one every now and then. Gone are the days when there was no means to get in touch with person who somehow did not manage to keep on time. Admittedly, PW5 Ms. Meena had her own mobile phone and if phone of the deceased was allegedly left at house then mobile phone number of Gulla was present there, and admittedly that of the employer was also available, then she on her own or through any family member could have made call to any of these person in an effort to know about Ankur when he missed his deadline of returning both times. Hence, because of her improvement and because of her unnatural FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 62 of 90 conduct her testimony does not inspire confidence that she had seen the deceased leaving in the company of both accused persons.
121. Further, she went on record in her cross examination that she had a talk with her fatherinlaw about the nonreturn of Ankur in the intervening night of 23/24.03.2013 itself but even then her fatherin law conveyed to this Court that he did not come to know about his son not returning previous night till next day evening i.e. until he received call from the employer of his son informing him that his son had not come for duty on 23.03.2013 (whereas attendance sheet Ex PW27/DA shows that he had not attended his duty since 22.02.2013, as shall be discussed later). Now, if father of the deceased was told about the non return of the deceased in the intervening night of 23/24/03/2013 itself then why did he tell to the Court that he came to know of nonreturning of his son only in the evening of 24.03.2013? Secondly, his conduct also became unnatural in not trying to find out the location of his son since the intervening night itself.
122. Further, more she deposed that when she told that Ankur had not returned home whole night then her fatherinlaw called the office of the employer of the Ankur to know whereabout of the deceased but PW4 father of the deceased deposed that he received call from the office of the Ankur and then on enquiry from Ms. Meena he came to know that Ankur had not returned home whole night. Thus, both PW4 and PW5 are not corroborating each other on this aspect.
123. Further, though it is not the case of the prosecution that FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 63 of 90 criminal law was set in motion on 25.03.2013 itself, but PW5 Meena deposed that she and her motherinlaw had visited PS Aman Vihar on 25.03.2013, told them about Ankur leaving in the company of accused persons and not returning till said date of visit since 23.03.2013 and that two policemen were deputed with her to the house of the accused Gulla. She further deposed that said two police officials made enquiries from Gulla who told them that they had left Ankur at his work place Safdarjang Hospital. If at all police had visited house of Gulla as deposed to by PW5 Meena and if at all she had told them (police) that accused had left house in the company of both accused persons then police would not have remained satisfied with the enquiry from Gulla only. They must have enquired from accused Manoj also to cross check the facts and also from place of work of the deceased. In fact she herself would not have remained satisfied and must have entreated the police to make enquiry from accused Manoj also if at all she had seen the deceased living in the company of the both accused persons.
124. Though she at two places categorically deposed in the court that her statement was recorded on 25.03.2013 by the police but prosecution has not placed on record said statement nor has she been sought to be reexamined to suggest that she had wrongly deposed that she had gone to the police on 25.03.2013 or that her statement was recorded on 25.03.2013. In fact her statement was recorded on 24.05.2103 much after the material investigation was complete.
125. Conscious of the fact/principle that while appreciating the testimony of a witness, minor discrepancies on trivial matters which do FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 64 of 90 not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety, however, discrepancy in the statement of PW5 Meena in the present case cannot be said to be on trivial issue. It relates to an important issue as to whether she had seen the deceased leaving his house in the company of the accused Manoj as well and therefore her testimony qua the aspect that she had seen her husband leaving in the company of accused Manoj as well is not inspiring confidence. As noted earlier her testimony does not inspire confidence, hence, prosecution has failed to prove that deceased had left his house in the company of accused Manoj as well. So far as deceased leaving his house in the company of the accused Gulla is concerned same is not in dispute.
126. Next question is whether at 5:45/48 PM on 23.03.2013 deceased Ankur had called his wife on her mobile phone No. 9911612632 from the mobile phone No. 9999184890 of Gulla and informed her that he was with both accused persons and that he would return by 1010:30 PM ? It is not in dispute that at 5:48 PM on 23.03.2013 a call between the two numbers were connected and talk for 69 seconds had taken place as is reflected from CDR Ex PW16/B. It is the case of the defense that said call was made by the accused Gulla to the wife of the deceased to know as to when deceased would return. Whereas PW5 Meena had remained consistent to the effect that she was called by her husband from the mobile phone number of Gulla and was told by her husband that he was with both accused persons and that he would return by 10 10:30 PM.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 65 of 90
127. Both version could be true but on account of unnatural conduct of PW5 Meena in not trying to look for her husband as early as possible next morning onwards as noted earlier and therefore, reliance upon her consistent testimony on this aspect without corroboration would be risky. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on evidence adduced in the case, one pointing to the guilt of the accused and other to the innocence of the accused, the view which is favorable to the accused should normally be adopted. But this court has other material as well to take view favorable to the accused. Attention of this Court has gone to the postmortem report Ex PW1/A perusal of which shows that deceased was opined to have died "one day" before the time postmortem began. Doctors give their report in terms of hours as to the period of death from the time of postmortem and they are trained to report so. In the PM report Ex PW1/A in the column "time since death" it has been mentioned "about one day" which means almost 24 hours. The postmortem report Ex PW1/A show that postmortem began at 2.35 PM on 24.03.2013 which means if two hour plus and minus is admitted to the said 24 hours then Ankur had died somewhere between 12.35 PM to 4:35 PM on 23.03.2013 and if three hour plus and minus is admitted to the said 24 hours then Ankur had died somewhere between 11:35 PM to 5:35 PM on 23.03.2013 therefore it appears impossible that Ankur would have called his wife at 5:48 PM on 23.03.2013 from the mobile phone of accused Gulla and would have told her that he was with accused Gulla and his brother Manoj.
128. Thus, prosecution failed to prove that accused left his FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 66 of 90 house in the company of accused Manoj also and also failed to prove that deceased told his wife at 5:48 PM on 23.03.2013 that he was with accused Kaushal @ Gulla and Manoj. Thus, last seen evidence qua accused Manoj is not at all proved. Though prosecution due to admission is able to prove that deceased Ankur left his house in the company of the accused Gulla but failed to prove that deceased was with accused Kaushal @ Gulla even at 5:48 PM on 23.03.2013.
129. Next important incriminating evidences, as per prosecution, are the recovery of Car bearing registration No. DL4CU 2693 with blood stains seat cover and floor mat and recovery of iron car jack rod at the instance of the accused persons whereas as per defense same were planted on the accused persons.
130. As per investigating agency recovery of aforesaid car was done by IO on 28.03.2013 at the instance of the accused persons in the presence of SI Vasant Kumar, HC Raj Singh, Ct. Pradeep, Ct. Devender, and Ct. Manoj. However, investigating agency had recorded the statement only of HC Raj Singh and SI Vasant Kumar in this respect. Hence, only HC Raj Singh and SI Vasant Kumar apart from IO have been examined by the prosecution in this regard and these three are also the person in whose presence accused persons allegedly got recovered the iron car jack rod on 29.03.2013 from the bushes on Yamuna river side near Commonwealth village near Nizammuddin bridge in Delhi. There is no public witnesses to these recoveries.
131. In Pradeep Narayan Madgaonkar & Ors v. State of FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 67 of 90 Maharastra; AIR 1995 SC 1930 Hon'ble Supreme Court examined the issue of requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. It was held that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigation or the prosecution agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought.
132. This Court is first taking up the recovery of blood stained iron car jack rod Ex P13/3 allegedly at the instance of the accused persons. Though its bearing on the prosecution case has become negligence as investigating agency failed to seek opinion of the doctor, who conducted the postmortem, as to whether injures found on the back of the head of the deceased was possible with said car jack rod. Prosecution also failed to put the said iron car jack rod to the PW1 Dr. Phool Kumar when he appeared in the witness box to seek his opinion on the same qua the injury found on the head of the deceased. However, its recovery still has bearing on the accused persons both as inculpatory or exculpatory material as discussed hereinafter.
133. As noted above to prove recovery of iron car jack rod Ex P13/3 at the instance of accused persons, prosecution has examined PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 IO Mahender Singh. All the three in their respective examinationinchief deposed that after accused persons were produced in the Court on 29.03.2013 IO FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 68 of 90 took police remand of the accused persons as weapon of offence was to be recovered. On the application of the IO Court was pleased to grant two days PC remand of the accused persons whereafter both accused persons had taken the IO accompanied with SI Vasant Kumar and HC Raj Singh to Yamuna Bridge near Commonwealth village where accused Manoj pointed out towards a bushes as the place where he had thrown the jack rod used in the murder of Ankur and then went ahead and took out the said rod in the presence of other accused. The rod had blood stains and was admeasuring 36 cm. Same was taken in plastic polythyne thereafter converted into cloth pullinda and was sealed with seal of MSG and was taken into possession vide seizure memo Ex PW26/A (it should have been Ex PW26/D as noted hereinbefore). However, Ex PW26/A is witnessed only by PW26 SI Vasant Kumar.
134. In cross examination PW13 deposed that they had gone to Yamuna Bridge at 4 PM whereas as per PW27 they had gone Yamuns banks near Nizammudin Bridge at about 6 PM. As per PW13 all members of the police party who had gone to Khurja day before had gone to the said place which means that two accused, IO, SI Vasant Kumar, Ct Pramod, Ct Devender, Ct Vinod and he had gone there but as per PW27 apart from accused and himself had gone SI Vasant Kumar, HC Raj Singh, Ct. Pramod and Ct. Vinod. As per PW13 IO did not request any public to join investigation on that day whereas PW27 deposed that he did signal passersby but none stopped. As per PW26 first they searched for the clothes of the accused firstly at Yamuna Bank and then to Mangolpuri Nalla whereas as per PW27 accused made them roam around Wazirabad Pul in search of their clothes.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 69 of 90
135. It has been argued by Ld. Counsel for the defense that there is material discrepancies in the testimonies of PW13, PW26 and PW27 and therefore recovery of iron car jackrod Ex PW13/3 be disbelieved. On the contrary it has been argued that discrepancies highlighted by the defense is natural considering the time lag between the period recoveries was made and testimonies of the witness were recorded in the court. It has been argued that on material aspect all the three witness have supported and corroborated each and hence recovery of car jack rod Ex P13/3 stands duly proved beyond reasonable doubt.
136. After giving due consideration to the testimonies of these three witness on the aspect of recovery of iron car jackrod Ex P13/3 at the instance of the accused persons, it must be said that they have successfully withstood the test of cross examination if only their testimonies on broad and material parameter is considered and they have almost successfully able to prove that car jack rod Ex PW13/3 was got recovered by the accused persons on their own but for the blunder which exposed the investigating agency and which also made these three witness completely unreliable and untrustworthy for all purposes. In fact from the said exposure it can safely be concluded that they have entered into criminal conspiracy to fabricate and give false evidence against the accused persons to get them convicted for offences which would entail life imprisonment/death.
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 70 of 90
137. How the iron car jack rod Ex P13/3 recovered on 29.03.2013 came to be deposited in the malkhaana on 28.03.2019 one day prior to its recovery? Attention of this Court has gone to the MHC(M) record i.e. copy of Register No. 19 and to the testimony of PW17 HC Pradeep who was working as MHC(M) on 28.03.2013. PW17 HC Pradeep deposed that on 28.03.2019 IO Mahender Singh handed over him case properties i.e. One mobile phone of make Spice with two SIMs, another mobile of make OPAL with two SIMs, one Tata Indica Car bearing registration No. DL 4CU 2693 and one car jack rod. He further deposed that he deposited the same in the Malkhaan after making necessary entry in his own handwriting in the Register No. 19 vide entries No. 1305/1 to 1305/4 respectively. Copy of the Register No. 19 having relevant entries are Ex PW17/A. Entry No. 1305/4 clearly shows that car jackrod was deposited in the Malkhaana on 28.03.2013 and it is also recorded therein the manner in which said jack rod was recovered on 28.03.2013 which as per these three witnesses happened on the next day i.e. on 29.03.2013 but it was already forecast in the Register No.19 on 28.03.2013 itself which all go to show that it was a fake recovery. Further, perusal of the record also shows that IO Mahender Singh moved an application on 29.03.2013 before the Ld Metropolitan Magistrate seeking two days PC remands for effecting recovery of weapon of offence. All three categorically deposed that said recovery was got effected in the evening of 29.03.2019 but intriguingly said rod was deposited in malkhaana on 28.03.2013 even prior to its recovery.
138. Said car jack rod was already in the Malkhaana on FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 71 of 90 28.03.2013 as per Register No. 19 but despite that IO moved application before the Ld. MM seeking police remand for recovery of weapon offence. Such act clearly proves that IO knowingly moved false application on 29.09.2013 for PC remand of accused persons, knowing very well that alleged weapon of offence was already in the malkhaana. It all go to show that Investigating agency led by IO was not trying to unearth the truth but was manipulating investigation and evidence in such manner as to make everyone believe that it were the accused persons who have committed the crime. They not only planted the said car jack rod upon the accused persons but also fabricated documents like recovery/seizure memo Ex PW26/A and plan Ex PW27/1 and further went on to depose on oath in the court that the said iron car jack rod Ex P13/3 was got recovered by the accused persons in their presence from Yamuna river bank near Commonwealth Games village near Nizammuddin Bridge. Thus, three witnesses i.e. PW13 HC Raj Singh , PW26 SI Vasant Kumar and PW27 IO Mahender Singh conspired to plant said car jack rod upon the accused persons, fabricated and gave false evidence against the accused persons and have also committed perjury in furtherance of common intention to ensure conviction of the accused persons in their zeal to have credit of having solved the otherwise blind murder case. However, in the process they have rendered themselves completely untrustworthy and unreliable for any purpose in this case. These witness cannot be relied upon. In fact all these three witnesses deserve suitable action against them.
139. This act of the investigating agency duly supported by prosecution to show that ironcar jack rod Ex P13/3 was got recovered FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 72 of 90 by accused persons following their disclosure/confession, itself is sufficient to acquit the accused persons because prosecution has not only failed to prove one of the important chain of circumstance but it also got established that three important witnesses of the prosecution had indulged in fabrication and giving of false evidence against the accused persons and have committed perjury by deposing falsely on oath.
140. Nevertheless Court is proceeding to examine whether next incriminating evidence stands proved i.e. whether the offending car Ex PW27/A bearing registration No. DL 4CU 2693 was recovered at the instance of the accused persons. Witnesses to the recovery of the offending car is the above stated three witnesses only i.e. PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 IO Mahender Singh. These three witnesses as aforesaid have already rendered themselves completely unreliable and untrustworthy for any purpose of this case. Court cannot act on the testimonies of such proved tainted witnesses and on this sole ground it can be held that prosecution has failed to prove that offending car Ex PW27/A was recovered at the instance of the accused persons as there is no independent witnesses. Nevertheless their testimonies be analyzed to see if there is any iota of truth. This time Court will be double careful and more strict in analyzing their respective testimonies and even minor discrepancies could be viewed seriously.
141. PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 IO Mahender Singh have in their respective examinationinchief have (ignoring very minor discrepancies) substantially deposed that when FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 73 of 90 accused persons were interrogated by SI Vasant Kumar at their residence at 723/D, Gali No. 5, Pratap ViharII, Delhi they confessed to having murdered Ankur Sharma and having thrown his dead body towards Khurja side. Upon such fact conveyed to SHO, he alongwith HC Raj Singh and other staff reached at the spot, took over the charge of investigation and interrogated the accused persons, arrested them, conducted their personal search, recorded their respective disclosure statements and at their instance seized the car Ex PW27/A standing parked out of their house and on inspection blood stains were found present on the seat cover and floor mat of the left hand side front seat.
142. In cross examination PW26 SI Vasant Kumar deposed that entire proceeding (from 1:30 PM till they left around 8/9 PM) were conducted in the Gali while sitting on the chair arranged by the complainant whereas PW27 IO Mahender Singh and PW13 HC Raj Singh in their respective cross examination deposed that entire proceedings was conducted while sitting in the house of the accused and no one had gone out during the proceedings.
143. PW26 SI Vasant Kumar in cross examination deposed that Gali was about 10 mtr wide whereas PW13 HC Raj Singh deposed that Gali was so narrow where Indica sort of car could pass through but Innova sort of vehicle could not pass. PW13 HC Raj Singh deposed that house of the accused was West facing whereas PW27 IO Mahender Singh deposed that house of the accused was South facing. PW13 HC Raj Singh deposed that car Ex PW27/A was parked in the vacant plot just opposite the house of the accused persons whereas PW26 SI Vasant FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 74 of 90 Kumar and PW27 IO Mahender Singh deposed that car Ex PW27/A was parked outside the house of the accused in Gali. All three consistently deposed that neighbours were not asked to join proceedings but PW26 SI Vasant Kumar at one place deposed that at the time of seizure of the car some neighbours were asked to sign the seizure memo but none agreed. Both PW13 and PW26 were not able to tell who drove the car Ex PW27/A to police station. Though PW27 was not asked this question but he on his own also had not deposed as to who drove or towed the car to the PS nor statement of any one who had either driven or towed the car to the PS, was recorded by the investigating agency.
144. Discrepancies such as entire proceedings were conducted in the gali as deposed by PW26 or in the house as deposed by PW13 and PW27; that gali was wide about 10 mtr as deposed by PW26 or narrow enough not to allow passing of Innova sort of car as deposed by PW13 and that car was parked in the vacant plot opposite the house of the accused as deposed by PW13 or parked outside the house in the gali as deposed by PW26 and PW27, coupled with the testimony of PW26 to the effect that he did not record statement of any one in the house of the accused nor statement of any one was recorded there in his presence, further coupled with his testimony to the effect that not all documents were prepared in his own handwriting in the gali and further coupled with testimony of PW27 to the effect that father of the accused persons was informed next day of arrest of accused persons after calling him in PS, all go to show that entire alleged proceedings have been carried out the way it was sought to be projected but while sitting in the PS and recovery of car was planted upon the accused persons. Who brought the FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 75 of 90 car from the house of the accused to PS? How the car was brought from the house of the accused persons to the PS? This is an important step/link in the chain of circumstance to prove that in fact the offending car was recovered at the instance of the accused persons from their house but evidence to this effect is missing/lacking.
145. All the three witnesses have already rendered themselves untrustworthy and unreliable, discrepancies in their respective testimonies as noted above and lack of missing link as to who and how the car Ex PW27/A was brought to PS from the house of the accused, do not anyway help the prosecution to secure findings that the offending car Ex PW27/A was got recovered by the accused persons from outside their house. Thus, prosecution failed to prove that car with blood stains (on seat cover and floor mat) was recovered at the instance of the accused persons from outside their house.
146. Further, in the light of the above, the contention of the defense sounds logical and probable that one who had murdered any one in his car would not leave the car uncleaned with blood stains visible to naked eyes for four days just outside his house. Similarly, contention of the defense also does appear probable that car Ex PW27/A containing blood stains were found abandoned elsewhere and investigating agency being clueless about the real culprit found it easy to plant the car upon the accused persons as the car was of accused Manoj and accused Gulla had gone same night to village Mirpur via Greater Noida to drop his Bua, just to somehow solve a blind murder case and take credit of having solved such case without realising that real culprit escaped FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 76 of 90 uncaught and two young innocent lost their personal liberty and future prospects.
147. Third important chain of circumstance evidence is that accused persons pointed out the place where they had allegedly dumped the body of the deceased. It is the case of the prosecution that accused person after their alleged disclosure/confession led the police party to the said place on the intervening night of the 28/29.03.2013 and then police party had gone to the police post Khurja Junction where ChowkiIn Charge PW25 SI Rameshwar confirmed that body found on the morning of the 24.03.2013 on the road side of the Madhuprua Khurja Road, was that of the person whose photographs was shown to him by the IO.
148. In order to prove the above, prosecution examined PW7 Kripal Singh, PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 IO Mahender Singh. PW7 did not support the prosecution case completely but did support that on the night of March 2013 at about 11:00 PM 12:00 midnight 4/5 police officials came to him and asked about the dead body found on the morning of 24.03.2013 in his village on roadside to which he had replied that he was not present in the village on the day when dead body was found. He further deposed that police official took his signature on paper to complete some formalities. They alongwith him had gone to some distance from his house but he remained on the roadside as no one was in his outhouse. He did not know whether two other boys were present there or not. Even after pointing out by Ld APP for the State that on that night accused persons whose name were disclosed as Kaushal and Manoj were also there, he FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 77 of 90 did not support the same. Thus, PW7 Kripal did not support the prosecution that police personnel alongwtih accused persons had gone there to him, that accused persons had admitted before PW7 about their guilt and that they had pointed out the place where they had dumped the body of the deceased Ankur. PW7 Kripal Singh categorically told that his signature was taken on paper to complete some formalities.
149. PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 IO Mahender Singh are tainted witness as noted above and their testimonies cannot be relied upon without corroboration from other witnesses. PW7 Kripal Singh failed to corroborate their testimonies particularly on the aspect of presence of accused persons there with them. There was a chance of corroboration from PW25 SI Rameshwar (who otherwise has fully supported the case of the prosecution) that both accused had come alongwith the police party to the Police Post Khurja Junction as it is the case of the prosecution that after pointing out the place of dumping in the presence of Kripal Singh police party alongwith accused persons had reached the Police Post Khurja Junction where PW25 SI Rameshwar Kumar met them. PW25 SI Rameshwar Kumar in his testimony in the court confirmed that police official had come to him on 29.03.2013 but nowhere stated that both accused persons had also accompanied him/them. When PW25 SI Rameshwar Kumar was in the witness box prosecution also did not put leading question to him to elicit from him that both accused persons were also present with the police official/police party on 29.03.2013 in the Police Post so as to allow inference that accused persons might have allegedly pointed out the said place. Further, PW25 SI Rameshwar in cross examination deposed that FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 78 of 90 on 29.03.2013 police officials came to him in the evening whereas in his examinationinchief he had deposed that police official (tenor is of one official) came to him on 29.03.2013 but did not tell the time. Thus, in the absence of corroboration from other witness testimonies of PW13 HC Raj Singh, PW26 SI Vasant Kumar and PW27 Mahender Singh cannot be acted upon to hold that accused persons vide pointing out memo Ex PW7/A had pointed out the said place of dumping of dead body of deceased Ankur.
150. Next other important incriminating circumstance alleged is that at about 2:26 AM on 24.03.2013 location of mobile phone of Gulla was in Greater Noida. Defense has not disputed that at such time accused Gulla was in that area as he had gone through that area to the house of his bua at village Mirpur to drop her there. Defense in this regard examined DW3 the son of the said bua who deposed that accused Gulla had come to his village along with his mother in his van at about 3:00 AM in the morning of 24.03.2013 to drop his mother. As per DW3 his mother was in Delhi since around 20.03.2103 in connection with her treatment and was staying with his mamaji, the father of the accused persons and on 23.03.2013 day she was not feeling well and wanted to see him so he requested his mamji to send her back and accordingly accused Gulla had taken her back to her village at the aforesaid time and day.
151. In cross examination he had deposed that he had brought OPD card of VMNC and Safdarjang Hospital for 21.03.2013 but same was not got placed on record by the prosecution rather a suggestion was FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 79 of 90 given to him (DW3) that after having brought his mother to the hospital he took her back to the village on that itself. How this suggestion was given by the prosecution in the absence of any verification by prosecution agency from hospital or from other independent sources, is not understandable. However, in any case, it stood admitted by the prosecution that said bua of the accused was in Delhi for treatment at least on 21.03.2013. Further, she returned same day as suggested by prosecution has not been proved.
152. To contend that DW3 did not approach senior police officer to inform them that accused Gulla was in the said village at the afore said time when he came to know that accused Gulla had been picked up by police, is preposterous expectation from a common man's point of view visavis stature of Police in the society. Further, when investigating agency itself has not enquired from the persons who were communicating with accused Gulla from the alleged time of murder till 2:26 AM on 24.03.2013 so as to know who were those persons and what transpired between them, how it would have helped the accused persons if DW3 had approached the police in this connection. Further more DW3 categorically deposed that his village could be reached through Greater Noida and this has not been disputed by the prosecution.
153. Unlike the prosecution the accused is not required to establish his defence beyond all reasonable doubt and accused has only to raise doubts on preponderance of probability. In M. Abbas v. State of Kerala; (2001) 10 SCC 103 Hon'ble Supreme Court held as follows: "10.......On the other hand, the explanation given by the FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 80 of 90 appellant both during the crossexamination of prosecution witnesses and in his own statement recorded under Section 313 is quite plausible. Where an accused set up a defence or offers an explanation, it is wellsettled that he is not required to prove his defense beyond reasonable doubt but only by preponderance of probabilities...."
154. Considering the aforesaid principle in mind and considering the fact that prosecution did not dispute that bua of accused persons was ill and got her treatment at Delhi at least on 21.03.2013 and considering the fact that Greater Noida falls enroute the village Mirpur of the bua of the accused persons and further considering the fact that investigating agency did not investigate/interrogate from the persons who were communicating with the accused Gulla from the time of alleged murder till 2:26 AM on 24.03..2013 over his mobile and further more considering the fact CDR of mobile phone of the accused Manoj was not placed on record despite have been obtained as deposed to by PW27 IO Mahender Singh, the defense raised by the accused persons is neither fanciful nor improbable. Hence, weighing on the scale of preponderance of probabilities defense has been able to raise a probable defense and has also been able to prove the said defense on the basis of preponderance of probabilities. Even otherwise prosecution does not stand to benefit from the weakness in defense as prosecution has got to prove its case beyond reasonable doubt.
155. The contention that deceased was last seen at least with accused Kaushal @ Gulla and therefore accused Kaushal @ Gulla is required to prove satisfactorily as to when he parted with the deceased Ankur, is concerned, it is suffice to say that such requirement would FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 81 of 90 have arisen only when prosecution had been able to prove all chain of circumstance evidences against accused persosn so as to lead to the only and inescapable conclusion of accused being the culprit, inconsistent or incompatible with the innocence of the accused. It has been seen herein before that prosecution has failed to prove many of the chain of circumstances on the basis of which prosecution was calling upon the Court to draw the inference of guilt of the accused persons, hence such requirement has not arisen in this case as "last seen evidence" is weak kind of evidence and conviction cannot be based solely on "last seen evidence" particularly when there is huge time gap between the "last seen evidence" and time of death.
156. Further, deceased went into the company of accused Gulla at about 10:05 AM and was murdered as per prosecution at about 10:00 PM on the same day that means there was a gap of almost 12 hours. CDR of accused Kaushak @ Gulla shows that his phone was active and calls were maturing to and from his mobile phone and he had been moving around in west and north Delhi area but investigating agency did not try to find out where was he during the day time so as to ensure that deceased also was or was not with him through out.
157. Nevertheless, defense examined DW1 Harish Kumar and as per him deceased Ankur and accused Gulla had come over to him at about 11:00 - 12:00 AM in Indica Car driven by the deceased Ankur and after dropping Gulla deceased Ankur went away in the car. He also deposed that he was picked up by police on 30.03.2013 and was let off after three days detention. In cross examination though a suggestion FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 82 of 90 was given to him that accused Kaushal did not come to him on 23.03.2013 but no suggestion was given to him that he had not seen the deceased on that day going away alone in the car. No suggestion was given to him that deceased did not know how to drive car and therefore he could not have seen deceased driving away the car. Further, DW1 categorically deposed that he dropped the accused Gulla to his house at 7:30 PM on 23.03.2013 and this fact was not controverted by the prosecution even by giving contrary suggestion to him.
158. DW1 Harish Kumar was within the range of interrogation is corroborated by the testimony of PW27 IO Mahender Singh when he deposed in cross examination that he did not remember if had interrogated Harish Kumar or not but he did visit his house some where near Peeragarhi and met his mother and sister. Fading memory of PW27 qua interrogation of DW1 with specific assertion of DW1 that he was picked by the police on 30.03.2013 and detained in PS for three days, entreat this court to accept the version of DW1 as probable. The contention that after release from detention DW1 did not make any complaint to higher authorities about his illegal detention lacks recognition of the hard realities of life in India that if DW1 had dared to complaint about the IO about his illegal detention in the present case then he would have also been facing the present charge of murder with current accused persons. After being let off by police ordinary common man thanks Almighty and never looks back towards the police station for any mistreatment met out in the legal/illegal detention. Hence, no adverse inference could be drawn against Harish Kumar for his failure to make complaint about his illegal detention for three days.
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159. In view of the above and on the basis of preponderance of probabilities it can be held that defense though in the above circumstance was not required to but has been able to show that accused Kaushal @ Gulla parted with the deceased at 11:00 AM - 12:00 Noon on 23.03.2013 and at that time deceased was alive, hale and hearty and went away driving Indica car whose number as per DW1 was 26_ _ .
160. There is one interesting aspect which has also not gone down well so far as investigation is concerned. It has been claimed by PW5 Meena wife of deceased that deceased had left his mobile phone in his house. Investigating agency also relied upon the same and prosecution also based its case on the same but the said mobile phone of the deceased was not seized by the investigating agency so as to show/prove that deceased had left his mobile phone in his house. CDR Ex PW15/A of the said mobile phone having consumer No. 8506037115 has been placed on record which shows that certain call to and from the said mobile phone had matured between the period deceased was called by the accused persons with them and he was allegedly murdered. Who talked from this phone? If some body had called the deceased and some family member responded to those call then the said caller must have been told that deceased was with the accused and if they wanted to talk to the deceased urgently then they could talk to him on the mobile phone of the accused Gulla, if at all deceased was him.
161. Further, perusal of the CDR Ex PW15/A of 8506037115 shows that phone No. 8506037115 had received calls four times from FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 84 of 90 mobile phone No. 9818198580 at 11:23 AM, 11:36 AM, 11:45 AM and 11:53 AM on 23.03.2013. The conversation period was 56, 26, 21 and 260 seconds respectively. PW5 Meena was not able to tell whose phone number 9818198580 was. Said CDR further shows that a call was made from 8506037115 to mobile No. 9818198580 at 7:09 PM on the same day and talking period was 62 seconds. Who called from this number at 7:09 PM ?
162. Perusal of CDR Ex PW5/B of mobile phone No. 9911612632 belonging to PW5 Meena shows that not a single outgoing call or out going message has been made from this mobile phone between the period 01.03.2013 to 31.03.2013. This necessarily means that PW5 Meena may not be knowing how to make calls/send message or may not have felt any necessity ever to make any call during the said period. Now if she does not know how to make call then who made the call from mobile No. 8506037115 to mobile No. 9818198580 at 07:09 PM on 23.03.2013, if mobile phone was left at house?
163. Further, if pattern of calls in the CDR Ex PW15/A is followed i.e. four times call from the caller 9818198580 and not attended by Ankur and attended by his wife or else one then certainly evening call must have been made by the Ankur in response to four call not attended by him or all the call must have been attended/made by Ankur himself contrary to the claim that phone was left at house. Prosecution should have either got produced the said mobile phone of the accused with SIM or should have examined the holder of mobile phone No. 9818198580 to know about the factual situation and clear the cloud of doubt as to who FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 85 of 90 talked on this number.
164. As noted earlier PW4 father of the deceased claimed in his testimony that on 24.03.2013 he received a call from the employer of the deceased that deceased had not come to duty on 23.03.2013 and then he went to his house asked from daughterinlaw as to why his son had not gone to duty. PW5 Meena deposed that on the evening of 24.03.2013 her fatherinlaw enquired about her husband to which she replied that her husband had not returned whole night and he perhaps had gone Safdarjang Hospital for night shift on which her fatherinlaw called the Contractor under which her husband was employed and he told her fatherinlaw that her husband had not come on that day. Thus in the testimony of both PW4 and PW5 there is contradiction. Further intriguing is the fact fact that IO collected attendance chart Ex PW27/DA of the deceased from the employer which shows that deceased had not been going for his duties since 22.02.2013, therefore it is not possible that PW4 would have received call from office of his son about his not attending duty on 23.03.2013 but IO did not make enquiry from the father of the deceased that when his son was not attending duties since 22.02.2013 then how he could have been called by employer for alleged one day absent.
165. In the circumstances as noted above, all it go to show that investigating agency built up story to nail down the accused persons and in the process tutored these witness to depose the way they want and not the way things happened as, it seems, investigating agency were clueless about the real culprit and found it easy to embroil accused FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 86 of 90 persons not due to any enmity with the accused persons but with a view to have credit of solving the blind murder case. As noted above three of the prosecution witnesses who were member of investigating agency, in pursuance of solving the case, went on to fabricate and give false evidence and also committed perjury by knowingly deposing falsely as noted above.
166. Time has come that investigating agency better own failure than to implicate innocent persons that too in offenses involving punishment of 10 years or more/death. Further, if they themselves are not sure of the culprit and have doubt on particular person, they should place the matter as it is before the court of course alongwith material which may help accused prove his innocence. They must keep in mind that they are supposed to be impartial and therefore whatever is collected by them be fairly placed on record irrespective of consideration that same would go in favour of prosecution or in favour accused. Officials of investigating agency should not be overzealous so much as to fabricate false evidence as has been noted in the present case. Investigating agency must realize that period spent in the custody and the loss sustained thereby by persons in custody cannot be restored or made up even by compensation.
167. In view of the above discussion and reasoning both accused persons are acquitted of the offences under Section 364/302/34 IPC in respect of which they faced trial in this case. Both acquitted persons are in custody since their arrest, hence, they be released immediately, if not required in any other case.
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168. In terms of Section 437A CrPC acquitted persons should also furnish bond of Rs 10,000/ each with one surety each of like amount. Needless to say that such bond shall remain in operation till next six months.
169. It has been noted above that police officials i.e. IO Inspector Mahender Singh (Retd.), SI Vasant Kumar and HC Raj Singh in conspiracy with each other had fabricated and given false evidence in this case as defined under Section 191 and 192 IPC and have thus committed offence under Section 193, 194 and 196 read with Section 34 IPC. They being the police officials were under duty to collect evidence and not fabricate evidence. Further, they were under legal obligation to speak truth and truth only but they knowingly deposed falsely. Hence, it is expedient in the interest of justice that they be tried and punished, however, since cognizance of such offences are required to be taken by CMM or the concerned Magistrate upon written complaint, accordingly this Court authorises Reader of the Court i.e. Sh. Rakesh Kumar, to file a complaint against IO Inspector Mahender Singh (Retd.), SI Vasant Kumar and HC Raj Singh, on behalf of this Court for offences punishable under Section 193, 194 and 196 read with 34 of IPC. The said complaint be filed in the Court of Ld. Chief Metropolitan Magistrate, North West, Rohini, Delhi within two weeks from the date of judgement.
170. Copy of this judgement be also sent to Commissioner of Police, Delhi, through concerned DCP, for his immediate action under the law/rules governing Delhi Police against the erring police officials FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 88 of 90 i.e. IO Inspector Mahender Singh (Retd.), SI Vasant Kumar and HC Raj Singh.
171. Before parting with the judgement it must be noted with pain that but for false and fabricated evidence accused person would not have languished in judicial custody. Such way of investigation has also caused great disrespect and injustice to the family of the deceased. Further, such judicial custody deprived the accused persons not only of their personal liberty but also of their future prospect. Accused persons and their family members can never be put back where they would have been if accused persons had not been in custody or had been granted bail. Accused persons can not be made to face further rigmarole of trial to seek compensation in respect of their custody which happened on the basis of false and fabricated evidence arranged by Investigating Agency led by IO.
172. However, power to grant compensation to the accused is not specifically provided in CrPC except under Section 250 and Section 237 CrPC in appropriate case but that too is limited to only Rs 1000/. Victim Compensation Scheme under Section 357A CrPC is in place but that does not cover the case of accused persons who have spent little more than six precious years in custody. Time has come that State shall also have scheme for compensation to the such accused persons who are found to have been lodged in custody on the basis of fabricated/forged evidence arranged by its agency. Therefore, State being a welfare State, in the meantime, should on its own compensate both accused persons at least at the rate of minimum wages paid to unskilled labour.
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173. With the acquittal of the accused persons by present judgement this case has come to an end before this Court, hence file be consigned to Record Room after necessary compliance.
Digitally signed by HARISH HARISH KUMAR
KUMAR Date:
2019.07.01
16:17:23 +0530
(Harish Kumar)
Additional Session Judge 03
Announced in the Open Court. North - West, Rohini,
(Judgement contains 90 pages) Delhi/ 01.07.2019
FIR No. 130/13 State vs. Kaushal @ Gulla etc. Page No. 90 of 90