Delhi District Court
State vs . Mukesh Vats Etc. Judgement Dt. ... on 16 January, 2019
State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
IN THE COURT OF ADDITIONAL SESSIONS JUDGE05
(NORTH) ROHINI COURTS, DELHI
SC No. 58265/2016
FIR No. 946/2004
PS Shalimar Bagh
U/s 302/365/364/201/34 IPC
State Vs. 1. Mukesh Vats
S/o Sh. Ramesh Chand
R/o H. No. 52, Vill. Shakur Pur, Delhi.
2. Sharif
S/o Sh. Hodil Khan
R/o Tikari Kalan (Panchgawon)
Distt. Mahamaya Nagar,
PS Sikandrarau, (UP).
3. Kamlesh Kumar (Proclaimed Offender)
S/o Sh. Subhash Chand
R/o Vill. Chandni Din Purva, P.S. Gusai Ganj,
Distt. Barabanki (UP).
(declared proclaimed offender on 16.1.2017)
Date of institution : 17.5.2005
Date of conclusion of final arguments : 22.12.2018
Date of judgement : 16.1.2019
JUDGEMENT
1. The prosecution case in brief is that on 31.10.2004, Ramesh Gupta left his home in his car, telling his family members that SC No.58265/2016, FIR No. 946/2004 Page 1 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 he was going to meet Mukesh Vats (A1) to his house. The accused persons abducted him for ransom and thereafter committed his murder. The accused persons put the dead body of Ramesh Gupta in a gunny bag and threw it in a ganda nala near Village Karala. The FIR was registered. Accused Mukesh Vats was arrested, who got accused Sharif (A2) and Kamlesh (A3) arrested. All of them got the dead body recovered. Accused Mukesh Vats got recovered the car, which was in the name of his father. Police recovered blood stains and hair from the said car, which matched with the blood group and hair of the deceased. At the instance of accused Sharif, the knife used for committing murder, was recovered.
2. The prosecution could not prove the motive for commission of the murder. There is no eye witness of the offence. The place of commission of murder could also not been proved. The prosecution is relying upon the circumstantial evidence of the last spoken words of the deceased that he was going to meet A1, CDRs of mobile phone of the deceased, which show two calls between deceased and A1, recovery of dead body at the instance of the accused persons, recovery of weapon of offence i.e. knife at the instance of A2 and recovery of blood stains and hair of the deceased in the car belonging of the father of A1 at the instance of Mukesh Vats SC No.58265/2016, FIR No. 946/2004 Page 2 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 (A1). As per prosecution, the aforesaid circumstantial evidences squarely connect the accused persons to the present crime. Investigation
3. On 31.10.2004, Sub Inspector K. P. Tomar (PW15) was posted as SI at PS Shalimar Bagh, Delhi. On that day, DD No.26A and 30A Ex.PW10/A and Ex.PW10/B respectively were marked to him for necessary action. The said DDs were regarding missing of Ramesh Gupta R/o BN95, West Shalimar Bagh, Sub Inspector K. P. Tomar tried to trace out Ramesh Gupta and wireless messages were flashed. The telephonic call was made to UIDB, MPS. All the relatives of Ramesh Gupta were also inquired and many other persons related to Ramesh Gupta were also inquired but no clue could be found.
4. On 1.11.2004, in the evening, Jagdish Kumar (PW9), brother of Ramesh Gupta, came to Sub Inspector K. P. Tomar in PS Shalimar Bagh and told him that his brother Ramesh Gupta had been abducted by unknown persons. He also told that Ramesh Gupta had gone to meet Mukesh Vats at his residence bearing No. WZ52, Shakur Basti Village, Delhi. Sub Inspector K. P. Tomar recorded statement of Jagdish Kumar, which is Ex.PW9/A. Sub Inspector K. P. Tomar prepared rukka on the basis of said statement, which is Ex.PW15/C. FIR was got registered under Section 365 IPC and investigation was SC No.58265/2016, FIR No. 946/2004 Page 3 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 handed over to Sub Inspector K. P. Tomar. During the course of Investigation, Sub Inspector K. P. Tomar tried to search Ramesh Gupta but no clue could be found that day.
5. On 2.12.2004, Inspector K. P. Tomar came to know that the car bearing registration no. DL1CH9939 of Ramesh Gupta was found and was deposited at CIA PS Bahadurgarh. Inspector K. P. Tomar reached at CIA, PS Bahadurgarh and met ASI Ramphal Inspector Incharge and made inquiries from him. Sub Inspector K. P. Tomar also made efforts to search Ramesh Gupta and the clues regarding recovery of the said car but no clue could be found regarding Ramesh Gupta.
6. On 3.11.2004, Sub Inspector K. P. Tomar again went to CIA, PS Bahadurgarh and requested the Inspector Incharge for releasing of said car. The car was handed over to him. Sub Inspector K. P. Tomar again interrogated ASI Ramphal, who had brought the car to the police station Bahadurgarh. Therefore, Sub Inspector K. P. Tomar took the said car to PS Shalimar Bagh and deposited the same in Malkhana.
7. On 4.11.2004, the investigation of this case was handed over to Inspector N. K. Meena (PW17). Inspector K. P. Tomar (PW15) and Ct. Naresh Kumar (PW12) joined the investigation with him.
SC No.58265/2016, FIR No. 946/2004 Page 4 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 They went to H. No. H.52, Shakurpur, Rani Bagh i.e. the house of accused Mukesh Vats, and arrested the accused Mukesh Vats vide arrest memo Ex.PW12/A. The personal search of accused Mukesh Vats was conducted vide memo Ex.PW12/B. Accused Mukesh Vats was interrogated and he made disclosure statement Ex.PW12/G. He disclosed that he can get arrested his coaccused Kamlesh and Sharif who were involved in the abduction and murder of Ramesh Gupta. Thereafter, at about 3:00 pm, they all along with accused Mukesh Vats reached at Village Karala, Anand Dham Road and they parked their vehicle there and from 1520 paces from that place, accused Mukesh Vats pointed towards accused Kamlesh and Sharif who were at that time were vacating the room. They apprehended both accused Kamlesh and Sharif. Both the accused Kamlesh and Sharif were arrested vide memo Ex.PW12/C and Ex.PW12/D respective. Their personal search was conducted vide memos Ex.PW12/E and Ex.PW12/F respectively. Both the accused Kamlesh and Sharif were interrogated and during interrogation, they made disclosure statements. The disclosure statement of accused Kamlesh is Ex.PW12/H and disclosure statement of Sharif is Ex.PW12/J. Thereafter, all the three accused persons Mukesh, Sharif and Kamlesh pointed out one by one to the Ganda Nala where they threw the dead SC No.58265/2016, FIR No. 946/2004 Page 5 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 body of Ramesh Gupta by putting the same in a bora. The pointing out memos were prepared by IO, which are Ex.PW12/K, L and M. The bora containing dead body was recovered from Sukhi Nahar, Ganda Nala. IO called the crime team at the spot.
8. Thereafter, the Crime Team came at the spot and with their help the gunny bag was taken out from said Ganda Nala and on its opening it was found to be the dead body of Ramesh Gupta and the photographs were taken by the Crime Team and inspected the scene of crime. Inspector Nand Kishore Meena prepared the inquest papers Ex.PW7/B. Inspector Nand Kishore Meena prepared the brief facts vide Ex.PW17/A. Ct. Naresh Kumar took the dead body of Ramesh Gupta in TATA 407 to Sanjay Gandhi Memorial Hospital mortuary for preserving the dead body. Ct. Naresh Kumar got the dead body of Ramesh Gupta preserved in the mortuary, Sanjay Gandhi Memorial Hospital.
9. ACP Nand Kishore Meena recorded the statements of Naresh Kumar and Mukesh Kumar about the identification of the dead body vide already Ex.PW2/A and Ex.PW1/A respectively. Inspector Nand Kishore Meena had made request for the postmortem examination vide his application already Ex.PW7/C and vide already Ex.PW7/D. SC No.58265/2016, FIR No. 946/2004 Page 6 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
10. After postmortem examination, dead body was handed over to the relatives of deceased Ramesh Gupta vide Ex.PW4/A. After postmortem examination, hospital authorities handed over two sealed envelope and one sealed box, in sealed condition along with the sample seal to IO, which were seized by him vide seizure memo Ex.12/R and Inspector Nand Kishore Meena had deposited these articles in the Malkhana. It is necessary to mention here that as per seizure memo Ex.PW12/R, the said box contained viscera, one envelope contained hairs and another envelope contained blood sample gauze piece of the deceased.
11. The car bearing registration no. DL1CH9939 was later on released on superdari vide superdginama Ex.PW15/D.
12. On 5.11.2004 accused persons were produced before the court and police custody remand was obtained. Thereafter, they along with the accused reached at the house of Mukesh Vats at Village Shakurpur, One Maruti Car, 800, bearing number DL8CB0341 was recovered near the house of the accused Mukesh at the instance of accused Mukesh Vats and he disclosed that the above said car was used for taking the dead body of the Ramesh Gupta to the place of recovery from the Anand Dham Colony. The said car was seized by Inspector Nand Kishore Meena vide memo Ex.PW12/P. Car was SC No.58265/2016, FIR No. 946/2004 Page 7 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 taken to the PS Shalimar Bagh. Crime Team officials were called there and they inspected the said car. The blood and the hairs were found in the dickey of the car, blood stained carpet was cut and thereafter was kept in a cloth pullanda and sealed the same with the seal of KP and the hair was kept in a match box and thereafter, same was also sealed with the seal of KP. Inspector Nand Kishore Meena seized the same vide seizure memo Ex.PW12/Q. Inspector Nand Kishore Meena deposited the seized articles in the Malkhana.
13. Thereafter, at the instance of accused Sharif, police reached at the Ganda Nala, Sukhi Nehar, Karala Village. At the instance of accused, one knife (Ex.P1) and one small container of spray on which "U R SAFE" was recovered from the bushes near Ganda Nala. Inspector Nand Kishore Meena prepared the sketch of the knife after taking measurements, same is Ex.PW12/N. Inspector Nand Kishore Meena kept the knife and the spray bottle in the separate cloth pullanda and sealed the same with the seal of KP and seized both the pulandas vide seizure memo Ex.PW12/Q. Inspector Nand Kishore Meena depsited the seized articles in the Malkhana and the accused persons were lodged before lock up.
14. During investigation, exhibits of this case were sent to CFSL Kolkata through a constable. Inspector Nand Kishore Meena SC No.58265/2016, FIR No. 946/2004 Page 8 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 collected the postmortem report and photographs and also collected CFSL reports, which are Ex.PW17/B, Ex.PW17/C and Ex.PW17/D.
15. Inspector Nand Kishore Meena prepared the site plan on 4.11.2004 of the room of Anand Dham Colony, which is Ex.PW17/E. During his investigation, scaled site plans Ex.PW6/A & Ex.PW6/B were got prepared of the places of the room at Anand Dham Colony and the place from where the dead body was recovered.
16. The first charge sheet was filed by Nand Kishore Meena, the then Additional SHO in the court.
17. Further investigation was assigned to Inspector Rajnish Kumar Panwar (PW16), who was posted as Additional SHO, PS Shalimar Bagh. During investigation, Inspector Rajnish Kumar Panwar collected call details of mobile phone number 9312210698 of deceased on 31.10.2004 and proof of ownership of land line numbers 27485771 and 27187882 to check the last call made by deceased at his residence. As per the report and analysis,the last call was made by deceased from mobile no. 9312210698 on telephone no. 27485771 on 31.10.2004 and the location of mobile was pole no. 68 located at 301, Prahladpur Delhi. The land line number 27485771 belonged to Jagdish Chand (PW9) Gupta installed at BN95, Shalimar Bagh. As per report, two calls were made on land line number 27187882 on SC No.58265/2016, FIR No. 946/2004 Page 9 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 31.10.2004, belonged to accused Mukesh Vats. The call details and other particulars are Ex.P3. The documents pertaining to ownership of mobile phone is Ex.P4.
18. As per charge sheet, the postmortem of the dead body was conducted and the postmortem doctor opined the cause of death to be shock and asphyxia as a result of cut throat injury. Two accused namely Sipahi Lal and Raju @ Rajesh Kumar were got declared proclaimed offenders during investigation. Charge sheet was filed in the court of Ld. Metropolitan Magistrate. Thereafter, case committed to the Sessions Court.
Charge
19. After hearing arguments, a charge under Section 364/34 IPC, 365/34 IPC, 302/34 IPC, 201/34 IPC was framed against all the accused persons, who pleaded not guilty and claimed trial. Proclaimed Offenders
20. It is pertinent to note that the accused persons were admitted to bail on different dates. Prosecution had examined 21 prosecution witnesses and vide order sheet dated 3.8.2013, the prosecution evidence was closed. Statements under Section 313 CrPC were recorded. Accused persons did not lead evidence in defence and therefore, case was fixed for final arguments. Final arguments had SC No.58265/2016, FIR No. 946/2004 Page 10 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 started but accused Kamlesh absented on 23.3.2016. His non bailable warrants had to be issued. Since accused Kamlesh had Kamlesh absconded, after following the proper procedure, accused Kamlesh was declared proclaimed offender vide order sheet dated 16.1.2017.
21. I have already mentioned that accused Sipahi Lal and Raju @ Rajesh Kumar were declared proclaimed offender during investigation.
Prosecution evidence
22. Prosecution examined following witnesses :
PW1 Mukesh Kumar identified the dead body of Ramesh Chand on 5.11.2004.
PW2 Naresh Kumar identified the dead body of Ramesh Chand on 5.11.2004.
PW3 Om Parkash Bansal is a property dealer. He testified that if anyone comes to get a house on rent, they get verification from the concerned party. He testified that he neither knows any Gopal Verma, nor he knows Mukesh Vats. This witness did not support the prosecution case. He denied the prosecution case that all the three accused persons were brought by police to him.
PW4 Subhash Garg, the brother in law of the deceased, received dead body of the deceased on 5.11.2004.SC No.58265/2016, FIR No. 946/2004 Page 11 of 69
State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 PW5 Ct. Rajesh testified that on 23.11.2004 he was posted at PS Shalimar Bagh, Delhi. On that day, he obtained seven sealed parcels and deposited the same at CFSL laboratory, Kolkata vide RC No.187/21 on 27.11.2004.
PW6 SI Manohar Lal testified that on 15.12.2004, at the direction of IO Inspector Nand Kishore Meena, he visited the spot at Anand Pur Colony near Gurudwara, Village Karala, Delhi and prepared site plan Ex.PW6/A. Thereafter, he reached the second spot, where dead body was recovered. He prepared its site plan, which is Ex.PW6/B. PW7 Dr. V. K. Jha, SJM Hospital conducted postmortem of the dead body. He testified that the dead body was received in mortuary on 4.11.2004. The body was packed in a jute bag. There were two clothes, underwear and shirt on the body. He proved the postmortem report as Ex.PW7/A. He also signed all the nine inquest papers. He handed over the sealed parcels containing viscera, blood gauze & hair of deceased to police officers along with the sample seal. He opined that the cause of death was due to the cut throat injury.
PW8 HC Sukhvir Singh was duty officer, who recorded FIR on 1.11.2004 at about 10:10 pm on a rukka handed over to him by SI K. P. Tomar. FIR was proved as Ex.PW8/A. He wrote an SC No.58265/2016, FIR No. 946/2004 Page 12 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 endorsement Ex.PW8/B on the rukka and handed it over to SI K. P. Tomar along with copy of FIR.
PW9 Jagdish Kumar testified that Ramesh Chand was his real brother. On 31.10.2004 he along with his family members were sitting at their residence at about 10:00 am. His brother Ramesh Chand started from the residence telling them that he was going to Mr. Mukesh Vats at WZ52, Village Shakur Basti, Delhi. At that time Ramesh was having a mobile phone no. 31010698 and 9312210698 and went in a Santro Car bearing no. DL1CH9939. Ramesh told him that he would come back within 1½ and 2 hours because it was Karwachowth festival and that they used to take meals together. He testified that when his brother Ramesh Chand did not return for about two hours, he made a telephonic call from his land line phone no. 27485771 on the mobile phone of Ramesh, who told that he was with Mukesh Vats and he would return back after about 1½ hours. Ramesh did not return for about two hours. Therefore, PW9 again telephoned him on his mobile phone. But there was no response on mobile phone of Ramesh. Thereafter, he telephoned at the residence of Mukesh Vats at telephone no. 27187882 but nobody picked the said phone. He testified that he and his relatives traced Ramesh till late night but he did not return. They also traced him at their relatives' house. Some of SC No.58265/2016, FIR No. 946/2004 Page 13 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 his relative made a report with PCR. Next day he went to PS Shalimar Bagh and lodged a report Ex.PW9/A at 10:00 pm on 1.11.2004.
PW10 HC Mehender Singh was posted as duty officer on 31.10.2004. He testified that at abut 8:51 pm an information was given by wireless operator, which was recorded by him vide DD No.26A Ex.PW10/A. At about 10:50 pm, a DD entry no. 30A Ex.PW10/B was also recorded informing the PCR regarding the description of missing person namely Ramesh.
PW11 Inspector Mukesh Kumar was posted as Incharge Crime Team, North West District, Delhi on 5.11.2004. He received an information from Control Room and he along with Crime Team reached at police station Shalimar Bagh, where he inspected Car No. DL8CB0341 and found blood stains on the back of the rear seat of the car. Some hair were also found lying under the back seat. The photographer took photographs as per his instructions.
PW12 Ct. Naresh Kumar joined investigation with Inspector N. K. Meena and SI K. P. Tomar.
PW13 Ashok Kumar SDE MTNL testified that on the request of police, he supplied them the particulars of name and address regarding where the telephone no. 27485771 was installed. The document supplied by him is Ex.PW13/A, which shows that the SC No.58265/2016, FIR No. 946/2004 Page 14 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 same is installed in the house of Jagdish Kumar Gupta. It is pertinent to note that due to some inadvertent mistake the exhibit number was not mentioned on the relevant document and same has been marked by me in red pen during dictation of the judgement. This shows that aforesaid land line is installed at the residence of Sh. Jagdish Kumar Gupta.
PW14 Raj Kumar Assistant Nodal officer Reliance brought the record of location of pole no. 68 LWDLHI 268, which is Prahlad Puri. The record is Ex.PW14/A. In testimony of PW14, this exhibition was objected to and therefore it appears that Ex.PW14/A was not put on any document. PW14 proved the reply of Reliance Company to the email of ACP Kumar Gyanesh to Reliance Company and the same is marked as Ex.P2, vide which the record of the ownership of phone no. 9312210689 was asked and Reliance Company informed the ownership of the mobile phone belonged to Ramesh Gupta. He also proved the call details record of mobile phone no. 9312210698 of deceased as Ex.P3.
PW15 Inspector K. P. Tomar is the initial Investigating Officer.
PW16 Inspector Rajnish Kumar Pawar carried out the investigation from November 2006.
SC No.58265/2016, FIR No. 946/2004 Page 15 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 PW17 ACP Nand Kishore Meena is the main Investigating Officer.
PW18 A. S. Data testified that 30.9.2005 he was posted as Senior Scientific Assistant, CFSL, Kolkata. He proved his report Ex.PW18/A. PW19 M. K. Majumdar Senior Scientific Officer, CFSL, Kolkata proved his report Ex.PW17/C and Ex.PW17/D. PW20 HC Vijay Kumar is MHC(M).
PW21 ASI Sajjan Kumar was part of the Crime Mobile Team. He proved the register made by Mobile Crime Team and proved entry Ex.PW20/A. He testified that on 4.11.2004 he was working as Head Constable in Crime Mobile Team, North West District as a photographer. He went to the spot near drain on the road going towards Chandpur road side. A dead body was lying inside the drain. Outside the drain, a pair of slipper was lying. He took photographs of the dead body and spot from different angles. The photographs are Ex.PW21/B1 to Ex.PW21/B13.
Statements of accused persons under Section 313 CrPC
23. In statement under Section 313 CrPC, accused persons denied allegations. However, they did not prefer to lead evidence in defence.
SC No.58265/2016, FIR No. 946/2004 Page 16 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
24. As already stated that after this stage, accused Kamlesh absconded and was declared proclaimed offender.
25. Now I take up the arguments of Ld. Defence Counsels as under :
Recovery of knife
26. Sh. S. C. Buttan, Advocate for accused Mukesh Vats (A1) submits that the recovery of knife at the instance of coaccused Sharif has not been linked with the commission of offence as the same was not shown to the doctor concerned, who had conducted the postmortem, for confirming it to be weapon of offence. Therefore this evidence is missing.
27. I agree with this submission. However, even if the opinion of the doctor on the knife was not taken, the fact that the knife was recovered near the place of recovery of dead body behind the bushes at the instance of Sharif is enough to prove that the cut causing throat injury was caused with this knife.
Non joining of witnesses.
28. Ld. Defence Counsel submits that non compliance of Section 100 CrPC i.e. non joining of any public witness at the time of recovery of the dead body. Neither it is complied at the time of recovery of car or its protection.
SC No.58265/2016, FIR No. 946/2004 Page 17 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
29. No evidence to the effect that accused Mukesh pointed the place from where the other accused were arrested. The place is thickly populated but no corroborative evidence. It is further submitted that PW3 does not support the prosecution and his statement is not denied by the prosecution.
30. I have considered the submissions. It is a well known fact that hardly any public person cooperates the police in investigation against the criminals. Therefore, the investigation cannot be thrown away on this very ground only.
Evidence regarding car of deceased
31. It is submitted by Ld. Defence Counsel that there is no evidence as to how the car of the deceased in which he was travelling reached near Bahadur Garh and this shows that prosecution is withholding the important evidence to surface the truth.
32. In my opinion there is no withholding of any evidence. The car was found in the area of Bahadurgarh and the same was seized by the local police.
The place where murder was committed
33. It is argued that the prosecution failed to bring on record as to whether murder was committed either at near Bahadur Garh or at near Karala. It is submitted that the only recovery of dead body is SC No.58265/2016, FIR No. 946/2004 Page 18 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 not the proof of commission of murder at the place of recovery.
34. It is submitted that as per the case of the prosecution the dead body was found near Sukha Nala near Karala where many persons pass through. Accused Kamlesh is the person, who has pointed out the place of recovery of the dead body on the public way and that this cannot raise a presumption that the murder must had been caused at that place or by the person who points out as he may be having the knowledge as a passerby.
35. I have considered the defence submission. If the prosecution has not been able to fix the place of murder. It does not disprove that murder of Ramesh Gupta had actually taken place.
36. I disagree with the defence submission that the accused may be in the knowledge of the dead body as a passerby. It is pertinent to note that dead body was inside a gunny bag. Moreover, the gunny bag was lying in the ganda nala and no part of dead body is seen coming out of the gunny bag in the photograph Ex.PW21/B2 & B4. These photographs show the drain and the bushes in which the said gunny bag was lying. Therefore, it cannot be said that accused persons might be having the knowledge of presence of dead body in the drain simply being passersby. Ld. Additional Public Prosecutor submits that the photograph Ex.PW21/B6 not only shows the SC No.58265/2016, FIR No. 946/2004 Page 19 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 photograph of police officials but also of the accused Mukesh Vats in the bushes around the drain. There is no road along the length of the drain and there is a lush vegetation on both sides of the drain. Therefore, it is not possible for a passerby to be in the knowledge of the presence of dead body at that spot.
Non preparation of a memo of recovery of dead body and non production of the gunny bag in the court.
37. Ld. Defence Counsel further submits that the prosecution also failed to explain about the non recovery of gunny bag as the same has not been mentioned through any memo or also the alleged spray. Moreover, no recovery memo of dead body was prepared by I.O.
38. I disagree with this submission. The pointing out memos Ex.PW12/K, Ex.PW14/L and Ex.PW14/M of A1, A2 and A3 respectively clearly mention that the dead body was lying in a gunny bag. It is further necessary to mention that the photographs of the dead body Ex.PW21/B7, B8, B9, B12, B13 taken at the spot clearly show the dead body in the gunny bag. Therefore, non preparation of a memo regarding recovery of dead body in a gunny bag is of no consequence. It is also true that gunny bag was not produced before the court. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW7 Dr. V. K. Jha, who had SC No.58265/2016, FIR No. 946/2004 Page 20 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 stated that the body was packed in a jute bag and the clothes, jute bag, blood and viscera were sealed with the seal of SGM.
39. In view of the above mentioned photographs and testimony of PW7 Dr. V. K. Jha, it stands proved that dead body was packed in a gunny bag. If the same is not produced during trial and if no recovery memo of dead body was prepared, the same does not discredit the prosecution case regarding recovery of dead body in a gunny bag.
No witness made at the time of recovery of car no. DL8CB0341 and no measures were taken to protect the car after its recovery and before inspection by Crime Branch.
40. Ld. Defence Counsels submit that the recovery memo of alleged recovery of car from road near to the house of the alleged accused Mukesh Vats, which belong to his father, has not been witnessed by any of the neighbour. It is further submitted that non protection to the car even at the time of recovery or thereafter before the inspection by the Crime Branch creates suspicion about any evidence allegedly collected from the car and the plantation cannot be ruled out.
41. Ld. Defence Counsels have drawn my attention to the testimony of PW12 Ct. Naresh, who had testified that the aforesaid car SC No.58265/2016, FIR No. 946/2004 Page 21 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 was recovered vide recovery memo Ex.PW12/P. In cross examination PW12 has admitted that crime team was not called at the place from where the car was recovered. Ld. Defence Counsels submit that this supports the contention of the accused that plantation of blood and hair had been effected in the said car.
42. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW17 Inspector Nand Kishore Meena, who testified that the aforesaid Maruti car was recovered near the house of accused Mukesh at his instance and he disclosed that the aforesaid car was used for taking the dead body of Ramesh Gupta from Anand Dham Colony to the place of recovery. The said car was seized by him vide recovery memo Ex.PW12/P and the car was taken to PS Shalimar Bagh. Crime Team officials were called there and they inspected the car. Ld. Additional Public Prosecutor submits that in cross examination PW17 has stated that he himself driven the car to police station after recovery and the crime team inspected the car at about 4:00 pm in the police station and car was deposited in Malkhana after inspection by the crime team. It is argued that when the Investigating Officer himself had taken the car in his possession and had driven the same to the police station, this itself is sufficient protection. Ld. Additional Public Prosecutor submits that it was not safe for the IO to SC No.58265/2016, FIR No. 946/2004 Page 22 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 leave the car at that very place and to wait for the crime team to reach the spot.
43. I have given a thoughtful consideration through this aspect. I am of the opinion that the ideal situation would have been that the Investigating Officer should have locked the car and would have sealed it and would have got it towed by a towing van to the police station. But calling a towing van would also have consumed precious time of the Investigating Officer because the accused persons were on police remand at that time. In such situation, the Investigating Officer took a practical decision to drive the car to the police station. So far as question of possibility of plantation of blood and hair in the car is concerned, it must be shown by the defence that Investigating Agency was somehow biased against accused Mukesh Vats and was bent upon falsely implicating him. The prosecution case shows that the name of Mukesh Vats was with the police on 1.11.2004, when brother of the deceased made a complaint Ex.PW9/A. Still police did not arrest him till 4.11.2004. As per defence itself, he was arrested when public made a demonstration and has brought to my notice DD entry no. 25 Ex.PW8/DC in which there is a reference of traffic jam due to demonstration of public. It is pertinent to note that the FIR was registered on 1.11.2004 and the SC No.58265/2016, FIR No. 946/2004 Page 23 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 name of accused Mukesh Vats was very much in the knowledge of police, still the Investigating Officer did not arrest him till 4.11.2004, which shows that the police was not biased against accused Mukesh Vats and therefore it cannot be presumed that Investigating Officer would plant crucial evidence of blood and hair in the car, which would serve as a strong evidence against accused Mukesh Vats. So far as non joining of public witness at the time of recovery is concerned, I am of the opinion that the seizure of vehicle by police is not in dispute. Moreover, independent public witnesses hardly agree to participate in investigation. In cross examination dated 7.8.2012 by Sh. S. C. Bhuttan, Advocate for accused Mukesh Vats (A1), PW17 had testified regarding the recovery of this car that public persons were asked to join investigation but they refused. It is pertinent to note that soon after the recovery, the car was taken to the police station and after a short time it was inspected by the crime team and exhibits were taken out of it. I find no substance in the submission of Ld. Defence Counsels that the hair and blood were planted in the car under the pressure of political leaders.
Mobile phone of deceased
44. Ld. Defence Counsels submit that the telephone number in possession of the deceased, has not been tried to be traced out nor any SC No.58265/2016, FIR No. 946/2004 Page 24 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 CDR of that telephone has at all been proved legally, therefore, the very important circumstance has been withheld by the prosecution. Even the location of the deceased or the accused could have been located from that phone but non production of this evidence dents the case of the prosecution. It is further submitted that the evidence that the deceased has lastly talked to Mukesh Vats on his land line number shows that Mukesh Vats was not present with the deceased at that time and therefore, Mukesh presence with deceased is not possible and case of the prosecution thus falls.
45. Ld. Additional Public Prosecutor argues that even if the mobile phone of deceased could not be recovered, the CDRs clearly show communication between the mobile phone of the deceased and land line of accused Mukesh Vats twice at about 9:28 am and 12:17 pm (noon) on 31.10.2004. This is a clear evidence that deceased was in contact with accused Mukesh Vats soon before he was murdered. Ld. Defence Counsel submits that these phone calls show that deceased and accused Mukesh Vats were at different places at that time. In my opinion, even if at the time of making calls, Mukesh Vats was at his residence where the aforesaid land line was installed, the same does not disprove that they did not meet soon thereafter.
SC No.58265/2016, FIR No. 946/2004 Page 25 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Certificate U/s 65B of Indian Evidence Act
46. Ld. Defence Counsels submit that non production of certificate under Section 65B regarding CDR of the phones vanishes the evidence.
47. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW16 Inspector Rajnish Kumar Panwar, who stated that call details and other particulars are Ex.P3 (six pages) and document pertaining to ownership of mobile phone is Ex.P4. Ld. Additional Public Prosecutor has drawn my attention to para 37 of Sonu @ Amar Vs. State of Haryana 2017 (8) Supreme Court Cases 570 in which Hon'ble Supreme Court of India held as under :
"37. The interpretation of Section65B(4) by this Court by a judgment dated 4.8.2005 in Navjot Sandhu held the field till it was overruled on 18.9.2014 in Anvar case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of Section 65B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records. A large number of trials have been held during the period between 4.8.2005 and 18.9.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anvar case has to be retrospective in operation unless the judicial too of "prospective overruling" is applied. However, retrospective application of the judgment is not in the interest of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic SC No.58265/2016, FIR No. 946/2004 Page 26 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final."
48. Ld. Defence Counsels on the other hand have referred to para 40 of this judgement, which is reproduced as under :
"40. This Court did not apply the principle of prospective overruling in Anvar case. The dilemma is whether we should. This Court in K. Madhava Reddy v. State of A.P. held that an earlier judgment would be prospective taking note of the ramifications of its retrospective operation. It if the judgment in Anvar is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar case was decided by a threeJudge Bench, propriety demands what we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a threeJudge Bench. In any event, this question is not germane for adjudication of the present dispute in view of the adjudication of the other issues against the accused."
49. Ld. Defence Counsels, while relying upon para 40 of the judgement, have argued that the judgements cited by Ld. Additional Public Prosecutor does not hold that effect of judgement in Anvar P. V. Vs. P. K. Basheer would be retrospective and therefore, the judgement of Hon'ble Supreme Court in Sonu Vs. State of Haryana does not rescue the prosecution from its liability to prove the SC No.58265/2016, FIR No. 946/2004 Page 27 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 electronic evidence in accordance with Section 65B of Indian Evidence Act.
50. I have considered the rival submissions. Though Hon'ble Supreme Court of India in Sonu Vs. State of Haryana has not specifically held that the judgement in Anvar P. V. would be effective from retrospective date, it is difficult to ignore that when the evidence in the present case was recorded, State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11 SCC 600 pronounced by Hon'ble Supreme Court of India was the law of the land. Hon'ble Supreme Court of India in Sonu Vs. State of Haryana has very aptly explained this aspect in para 37 of the judgement, which has already been reproduced. The judgement of Anvar P. V. Vs. P. K. Bashir (2014) 10 SCC 473 was decided on 18.9.2014. The prosecution evidence in the present case had been concluded on 3.8.2013 i.e. before the aforesaid judgement. It is necessary to mention here that prosecution had moved an application under Section 311 CrPC vide order sheet dated 20.12.2018 praying that prosecution should be permitted to further examine PW14 Raj Kumar the concerned Nodal Officer so that he may also furnish a certificate under Section 65B of Indian Evidence Act. This application was dismissed by me vide order sheet dated 20.12.2018 on account of the reason that substantial final arguments had been SC No.58265/2016, FIR No. 946/2004 Page 28 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 addressed in the present more than ten years old case, which is also the oldest case pending in this court. However, by moving the application, the prosecution had shown its bonafides and it cannot be said that it has deliberately withheld a certificate under Section 65B of Indian Evidence Act. Therefore, I have no option but to accept the evidence of PW14 Raj Kumar, the Nodal Officer of Reliance Mobile Phones, who proved the relevant electronic record. I would like to reproduced the testimony of PW14 Raj Kumar as under :
"I have been deputed to depose on behalf of Sh. Rakesh Dabasm, who was Nodal Officer at Reliance Mobile Phones, 12th Floor, Vijaya Building, Barakhamba Road, New Delhi, on 10/11/2006. Today, I have brought the record about location of Pole No. 68 LWDLHI 268 which is in Prahlad Puri at H. No. 301, Delhi42. The said record is Ex.PW14/A. (objected to by learned defence counsel on the mode of proof). I have seen the mail placed on judicial file, which is addressed to Rakesh Dabas at the mail I.D. of our office. The said email is Ex.P2. (objected to by learned defence counsel on the mode of proof).
I have also seen the call details record of Phone No. 9312210698 already placed on the judicial file. The said call detail record is supplied by our office. The call detail record containing six pages is collectively Ex.P3. XXXXX by Sh. S. C. Buttan, counsel for accused Mukesh Vats.
It is correct that in the year 2004, I was not working in this office. Mr. Rakesh Dabas had left the office in the year 2009. It is correct that the record Ex.P3 containing six pages is neither attested nor verified. It is also correct that Ex.P1 is also not verified.SC No.58265/2016, FIR No. 946/2004 Page 29 of 69
State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 However, only one stamp of our company is put over there, which means that it is verified. It is also correct that email Ex.P2 is neither verified nor attested. It is correct that I have brought the certificate from the office, which is signed by me and it mentions that CDR is not available in the office pertaining to telephone no. 9312210698. Therefore, this CDR cannot be verified. The document is Ex.PW14/DA. It is correct that I have no personal knowledge about the above mentioned documents. It is also correct that since the record is not available, therefore, I cannot verify the same. It is correct that I have not brought the record pertaining to this telephone number."
51. Now I reproduce the testimony of PW16 Inspector Rajnish Kumar Panwar, who had analyzed the CDRs. His testimony is as under :
"In November 2006, I was posted as Addl. SHO PS Shalimar Bagh, Delhi. The further investigation of this case was marked to me. During investigation, I collected call details of mobile phone number 93122210698 of deceased of 31.10.2004 and ownership of landline numbers 27485771 and 27187882 to check the last call made by deceased at his residence. As per the report and analysis, the last call was made by deceased from mobile no. 93122210698 on telephone no. 27485771 on 31.10.2004 and the location of mobile was pole no. 68 located at 301. Prahladpur, Delhi. The landline number 27485771 belonged to Jagdish Chand Gupta installed at BN95, Shalimar Bagh. As per report, two calls were made on landline number 27187882 on 31.10.2004, belonged to accused Mukesh Vats. The call details and other particulars are Ex.P3 (6 pages). The document pertaining to ownership of mobile phone is Ex.P4."SC No.58265/2016, FIR No. 946/2004 Page 30 of 69
State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
52. In cross examination he testified that the land line no. 27187882 is in the name of the father of accused Mukesh Vats. This fact is not disputed by defence.
53. In view of the above legal proposition, it is clear that non production of certificate under Section 65B of Indian Evidence Act is not fatal to the prosecution case. There is some mistake in analysis of CDR by PW16. The word "IN" in the CDR reflects the incoming calls to mobile phone no. 98122210698 and relevant calls are not outgoing calls. The CDRs show two calls were received by the deceased on his mobile phone no. 98122210698 from land line no. 27187882 (installed at the residence of A1 in the name of his father) at 09:28:50 am and 12:17 pm (noon). Deceased also received a telephonic call from a landline no. 27485771 belonging to Jagdish Chand Gupta (PW9), the brother of the deceased at about 12:04 as reflected in Ex.P3 on 31.10.2004. This is a corroboration in the testimony of PW9 Jagdish Chand Gupta that he made a call from his landline telephone no. 27485771 to his deceased brother Ramesh and that he told him that he was with Mukesh Vats.
54. Ld. Defence Counsels have pointed out that if deceased received a phone call at 12:17 pm from Mukesh Vats from his land SC No.58265/2016, FIR No. 946/2004 Page 31 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 line, how deceased could have been present with Mukesh Vats at 12:04 pm. I am of the opinion that speech is inefficient instrument to express the exact state of affairs. It appears to me that when deceased told PW9 that he was with Mukesh Vats, in fact he must have intended that he was going to meet Mukesh Vats.
Whether testimony of PW9 is unworthy of credence
55. It is submitted by Ld. Defence Counsel that as per the version of the prosecution case, the DD entry call was received in which it was stated that Ramesh had gone in Santro Car from the house but did not return back, but there is nowhere mentioned in the DD entry information that Ramesh had gone to meet Mukesh Vats. It is further submitted by Ld. Defence Counsel that if Ramesh Gupta had told the family members that the was going to meet Mukesh Vats, then this information would have been disclosed in the first information itself but this fact was nowhere mentioned. It is further submitted that even notwithstanding the facts of the statement of brother of the deceased Ramesh, the deceased Ramesh told him that he would come within 1 or 1½ hours, but it is to be noted that even at that time, the deceased Ramesh has not disclosed that where was he at that time, when the call was made by Jagdish Kumar, at about 12/12:15 PM. It is further submitted by Ld. Defence Counsel that if the deceased had SC No.58265/2016, FIR No. 946/2004 Page 32 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 told the family members that he was going to meet Mukesh Vats, then his family members must have visited at the house of Mukesh Vats, because they have mentioned the address of Mukesh Vats in the second complaint by Jagdish Kumar. But nobody visited at the house of Mukesh Vats to know whereabouts or ask for Ramesh at any point of time.
56. Ld. Additional Public Prosecutor on the other hand has pointed out that DD no. 26A Ex.PW10/A was received at 8:51 pm on 31.10.2004 mentioning that an information was received from telephone no. 2797622 about the missing of Ramesh. Another DD no. 30A was lodged on 10:50 pm on 31.10.2004 giving the hulia of the deceased that he had not returned back but it is not mentioned as to who is the informant. After perusing these DDs, it cannot be said as to who was the informant. It is necessary to point out that the landline number of PW9 Jagdish Kumar, the brother of the deceased, is 27485771. PW9 in cross examination has testified that he did not lodge the said DDs.
57. Ld. Defence Counsels have expressed surprise that if the deceased had stated to PW9 that he was going to meet Mukesh Vats, what was the reason that the relatives of the deceased searched him every where, in hospitals, police stations and at other places but did SC No.58265/2016, FIR No. 946/2004 Page 33 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 not go to the house of Mukesh Vats.
58. I have perused the testimony of PW9. In cross examination he had testified that after lodging the FIR on 1.11.2004, he tried to trace his brother Ramesh in hospitals, police stations and other places and met SHO Mr. Meena on 2.11.2004 and 3.11.2004. He told Mr. Meena on 2.11.2004 that his brother Ramesh was abducted by Mukesh Vats. I am of the opinion that when on 1.11.2004, PW9 has mentioned the name of Mukesh Vats in this complaint to the police, he would have left the police to deal with Mukesh Vats whereas he himself did the work of search at other places.
Whether dead body was recovered before arrest of accused persons?
59. Ld. Defence Counsel has pointed out that demonstration had taken place in Shalimar Bagh on 4.11.2004, after the recovery of dead body of Ramesh. Ld. Defence Counsel has submitted that it means that dead body had already been recovered before arrest of accused Mukesh Vats. I have perused the arrest memo Ex.PW12/A of accused Mukesh Vats. It shows that he was arrested at 1:00 pm on 4.11.2004. At his instance accused Kamlesh Kumar and Sharif were arrested at 4:00 pm vide arrest memo Ex.PW12/C and Ex.PW12/D. These accused persons got the dead body recovered. Therefore, it SC No.58265/2016, FIR No. 946/2004 Page 34 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 cannot be said that the dead body was recovered before arrest of the accused persons.
No motive
60. It is argued by Ld. Defence Counsel that there are neither any business relations in between Mukesh Vats and Ramesh, nor there is any enmity in between of them. There is already matter of record that there was no demand of ransom from the family members of the deceased. Ld. Defence Counsel submits that for the purpose of murder, there are requirements of enmity, last seen together, purpose, planning, intention but in the present case, nothing goes against the Mukesh Vats. I agree with the submission of Ld. Defence Counsel to some extent. As per prosecution, the deceased was abducted for the purpose of ransom but as already stated, this has not been proved by the prosecution. However, I may point out that it is not always necessary for the prosecution to prove the motive. In case of conspiracies, which are hatched in darkness, it is sometime difficult to prove the motive. This aspect is counter balanced by the fact that PW9 had mentioned the name of accused Mukesh Vats (A1), even though he had no enmity or motive to name him in statement Ex.PW9/A, upon which the FIR was registered.
SC No.58265/2016, FIR No. 946/2004 Page 35 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Why neck was chopped
61. It is further argued by Ld. Defence Counsel that in charge sheet, it has been alleged that after death of the deceased Ramesh, his neck was chopped with the help of knife, but when the deceased Ramesh was already died, so why his neck will be chopped. The prosecution has failed to give any explanation in this regard. I am of the opinion that at the stage of final arguments, the court would focus its mind only to the facts, which have been proved on record. PW7 Dr. V. K. Jha has proved the postmortem report Ex.PW7/A and has testified that the cause of death is shock and asphyxia as a result of cut throat injury. He testified that injury no.3 is sufficient to cause death in ordinary course of nature. I may point out that injury no.3 in postmortem report Ex.PW7/A is described as under :
"3. Cut throat injury with margins everted transversely in front and middle of the neck. Above border of adams apple length 14cm and width 2cm. It has cut at skin fascia latisma muscles and the laryngel box. On the side, it has cut the carotid artery and juglar vein. Cut throat injury is gaping mark on left side with telling phenomenon on the left side."
62. This opinion of the postmortem doctor has not been disputed in cross examination. Therefore, it cannot be said that deceased had died before the cut throat injury.
SC No.58265/2016, FIR No. 946/2004 Page 36 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Pointing out of dead body
63. Ld. Defence Counsel further submits that in charge sheet, it has been alleged by the prosecution that Mukesh Vats, Kamlesh and Sharif have pointed out towards the Bori in the Nala and got recovered the dead body of Ramesh Gupta, whereas, the PW12, Constable Naresh Kumar said that all these three accused persons were taken to the place of spot one by one where the dead body was recovered. So there is contradiction in the statement of PW12 and the version of the charge sheet by the police. I have considered this submission. In the charge sheet a course of investigation is summed up but in examination before the court the witnesses testify in detail. PW12 Ct. Naresh Kumar is a very important witness because he assisted investigation almost through out. Therefore, testimony of PW12 Ct. Naresh Kumar is of immense importance. PW17 ACP Meena has also testified in cross examination that the accused persons pointed out one by one. Therefore, this evidence of PW12 and PW17 is worthy of credence.
PW3 does not support prosecution
64. Ld. Defence Counsel submits that the PW3 Om Prakash, who is the owner of the rented house as per the prosecution case, he stated in his chief examination that no statement of him was recorded SC No.58265/2016, FIR No. 946/2004 Page 37 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 by the police on 16.11.2004 and this witness also refused to identify the Mukesh Vats, Sharif and Kamlesh that he has not given the property on rent to any of these three persons. I agree with this submission. The witness turned hostile. Therefore, the testimony of PW3 Om Prakash Bansal does not support the prosecution. Presence of SI K. P. Tomar (PW15) and SI Manohar Lal (PW6) at the time of recovery of dead body
65. Ld. Defence Counsel submits that, PW6 SI Manohar Lal stated in his chief examination that on 15.12.2004, he was called by the IO Inspector N. K. Meena and on that day, he had visited at the spot at Ananddham Colony, Village Karala, Delhi for preparing the site plan of the place of occurrence, whereas, the I.O. N. K. Meena stated in his chief examination that the site plan of the place of occurrence was prepared by him on dated 04.11.2004.
66. Ld. Defence Counsel submits that if this statement is relied upon, that only IO & SI Manohar Lal was present at the spot of occurrence and SI K. P. Tomar was not present at the time of recovery of the dead body. Ld. Defence Counsels have drawn my attention to the testimony of PW17 in cross examination, who stated that SI K. P. Tomar was with him at the time of recovery but he could not explain as to why the signatures of SI K. P. Tomar were not present at the SC No.58265/2016, FIR No. 946/2004 Page 38 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 relevant documents.
67. I have perused the statement of PW6 SI Manohar Lal, who has testified that on 15.12.2004 he was called by IO Inspector Nand Kishore Meena and after visiting the spot at Anandpur Colony near Gurudwara, he prepared site plan Ex.PW6/A. Thereafter, he reached the spot, where the dead body was recovered. There he took rough notes and on the basis of the same, he prepared the site plan Ex.PW6/B. PW17 Inspector Nand Kishore Meena testified that he prepared site plan on 4.11.2004 of the room of Anand Dham Colony, which is Ex.PW17/E. This site plan is only a rough site plan. PW17 further testified that during his investigation, scaled site plans were got prepared of the places of the room at Anand Dham Colony and the place from where the dead body was recovered. Therefore, from the testimony of PW17 also, it is clear that the scaled site plan was prepared later on. PW6 had made clear that he prepared the site plan on 15.12.2004. I may mention here that in the scaled site plan Ex.PW6/A and Ex.PW6/B, it is clearly mentioned at point 4 & 5 under the heading "NOTES" that date of visiting the places in question was 15.12.2004 and date of preparing the drawing was 16.12.2004. Therefore, as per prosecution case itself, SI Manohar Lal (PW6) was not present when the dead body was recovered.
SC No.58265/2016, FIR No. 946/2004 Page 39 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
68. I may point out that it is clearly mention in these site plans that these site plans were prepared on the pointing out by Inspector N. K. Meena, Additional SHO. I may further point out that signature of Ct. Naresh are not present on the site plans Ex.PW6/A & Ex.PW6/B.
69. It is true that PW17 ACP Nand Kishore Meena has testified in cross examination that when dead body was first seen by him, Ct. Naresh and SI K. P. Tomar were with him. He also admitted that SI K. P. Tomar had not signed any document prepared by him on 4.11.2004. PW15 Inspector K. P. Tomar has also admitted in cross examination that he was not present at the time of recovery of dead body in the last line of his cross examination dated 11.1.2012. It appears that it is so because although Inspector K. P. Tomar had accompanied the Investigating Officer but the area from where the dead body was recovered is large. Therefore, Inspector K. P. Tomar might not have been present with the Investigating Officer when the accused persons pointed out the dead body. It is necessary to mention here that in cross examination PW15 testified "I came to know about the recovery of dead body at about 8:00 or 9:00 pm on 4.11.2004. I may be present near the spot of recovery of dead body". Therefore, PW15 was not present at the time of recovery of dead body and his signatures were not available on the relevant documents, SC No.58265/2016, FIR No. 946/2004 Page 40 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 though he may be present near the spot of recovery. Examination in chief of PW15 would also show that he has not testified that the dead body was recovered in his presence.
70. I would like to elaborate this aspect further. PW15 in his examination in chief has clearly testified that the recovery of vegetable knife at the instance of Sharif and pepper spray bottle. Perusal of sketch of knife Ex.PW12/N and recovery memo Ex.PW12/O show the signatures of SI K. P. Tomar at point X. However, he has not testified that dead body was recovered in his presence. Even the pointing out memos Ex.PW12/A, Ex.PW12/L and Ex.PW12/M do not bear the signatures of PW15 SI K. P. Tomar. PW17 Inspector Nand Kishore Meena, although had testified that when the accused persons apprehended, he was accompanied by SI K. P. Tomar but he did not specifically mention that when the accused persons were interrogated and their disclosure statements were recorded and when dead body was recovered, SI K. P. Tomar was present with him. Even SI K. P. Tomar has not testified that the disclosure statement was recorded in his presence or the dead body was recovered in his presence. Therefore, PW15 SI K. P. Tomar is only a witness to recovery of knife and spray bottle. Therefore, his signatures are available on sketch of knife Ex.PW12/N and recovery memo Ex.PW12/O pertaining to SC No.58265/2016, FIR No. 946/2004 Page 41 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 recovery of knife and spray bottle. It is in this background that PW15 SI K. P. Tomar in the last line of his cross examination dated 11.1.2012 has testified that he was not present at the time of recovery of dead body and therefore, he could not tell as to whether any other thing was recovered except the dead body or not. This reply of PW15 should be seen in respect of any other article, if recovered along with the dead body. This reply does not mean that he was not a witness of recovery of knife and the spray bottle.
Who received exhibits from hospital
71. It is argued by Ld. Defence Counsel that there is absolute contradictions in the statement of both these witnesses PW12 and PW17 and each Pws has testified that he had collected the sealed envelopes after postmortem and they both have admitted about having same deposited in the police station. So, either one of these witnesses have stated falsely or both these witnesses are deposing falsely and such contradiction statements & version of prosecution case should be relied upon.
72. I have considered the submissions and to resolve this issue, it is necessary to refer to the testimony of PW20 HC Vijay Kumar, who has testified that during the period in question, he was working as MHC(M). He testified that on 5.11.2004 Inspector N. K. Meena had SC No.58265/2016, FIR No. 946/2004 Page 42 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 deposited the pulandas along with the sample seals of SGMH Mortuary, Mangol Puri and he made an entry to that effect at serial no.2894A. Inspector N. K. Meena (PW17) also deposited sealed pulandas sealed with the seal of KP and the same were entered in the aforesaid serial no. 2894A of register no.19. The photo copy of the above entry was proved as Ex.PW20/B. Therefore, it is clear that the pulandas were received from the hospital by Inspector N. K. Meena. The testimony of PW12 Ct. Naresh to that effect is on account of the reason that he was assisting Inspector N. K. Meena in investigation at that time. Moreover, PW17 ACP Nand Kishore Meena has explained in his cross examination dated 7.8.2012 that doctor had handed over the blood sample and hair sample after conducting the postmortem to Ct. Naresh, which he handed over to him and that he seized the same.
73. Therefore, this is not a contradiction.
Political pressure
74. Ld. Defence Counsel further submits that the PW8 HC Sukhbir Singh, who has brought the daily Diary Registry of the PS, had stated during cross examination that the DD No. 25A dated 4.11.2004 is in the handwriting of the inspector N. K. Meena, copy of the same is exhibit as Ex.PW8/DB. Ld. Defence Counsel submits that in this DD entry, the time of the accused Mukesh Vats is mentioned as 11:00 PM.
SC No.58265/2016, FIR No. 946/2004 Page 43 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 However, the IO namely N. K. Meena has shown the arrest of the accused Mukesh Vats as 02:00 PM and Kamlesh and Sharif as 04:00 & 04:30 PM respectively.
75. Ld. Defence Counsels further submit that in fact, on 04.11.2004, the demonstration was held at the Chauraha of Shalimar Bagh, in presence of the Sahib Singh Verma, politician leader and the situation for bad law & Order arose. In this regard, one call was also received in the police station at about 09:10 PM regarding such demonstration.
76. Accordingly Ld. Defence Counsel submits that the arrest of accused Mukesh Vats and other accused persons was one done by the police officials under political pressure as well as to satisfy the public at large, who had gathered at the time of demonstration at the above said place i.e. Chauraha of the Shalimar Bagh, Delhi, whereas the dead body was already delivered to the family members of the deceased at about 02:00 PM in day time.
77. I have perused DD entry no.25A dated 4.11.2004 (Ex.PW8/B). It is mentioned in it that at 11:00 pm the police had brought accused persons after arresting them and they have been lodged in the police lock up. It does not mean that accused Mukesh Vats was arrested at 11:00 pm on 4.11.2004. The arrest memo of SC No.58265/2016, FIR No. 946/2004 Page 44 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Mukesh Vats Ex.PW12/A shows his arrest at 1:00 pm (afternoon) on 4.11.2004. The arrest memo Ex.PW12/C and Ex.PW12/B of accused Kamlesh Kumar and Sharif respectively show their arrest at 4:00 pm on 4.11.2004. The DD entry no. 55B dated 4.11.2004 Ex.PW8/DC (proved by defence in cross examination of PW8 HC Sukhbir) mentions that at 9:10 pm information was received back that people had created a traffic jam at red light, shopping complex, PR Block, Shalimar Bagh. Therefore, this DD entry shows that the traffic jam was created by people around 9:00 pm on 4.11.2004 i.e. after many hours from the arrest of accused persons. Therefore, allegation of arrest of the accused persons under political pressure has no substance.
Contradictions of time regarding recovery of car no. DL8CB0341 and hair and blood stains from this car
78. Ld. Defence Counsel submits that PW12 Ct. Naresh Kumar in his chief examination deposed that at about 03:30 PM, he along with IO Inspector N. K. Meena, SI K. P. Tomar, ASI Rambir, Ct. Satish and Ct. Dharmender joined the investigation of this case. Accused Mukesh Vats was taken from lockup and we all along with accused Mukesh Vats reached near the house of the accused Mukesh Vats at Shakurpur Rani Bagh, At Maruti Car 800 CC No. DL8CB0341 was SC No.58265/2016, FIR No. 946/2004 Page 45 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 found parked outside the house of accused Mukesh Vats.
79. PW12 further testified in cross examination "accused Sharif was taken out from lockup at about 03:15 pm on 05.11.2004, I along with SI K. P. Tomar Inspector N. K. Meena Driver and 12 other staff members went to Village Karala in Tata 407 and we reached at Sukhi Nahar at abut 04:00 pm."
80. Ld. Defence Counsel has pointed out that PW17 I.O. Inspector N. K. Meena stated in his cross examination dt. 07.08.2012 "I have made the entry when I had taken out accused Mukesh Vats from the Hawalat of PS for recovery of the car. At this stage, witness pointed out towards the entry no.11A at 11:50 AM on 05.11.2004. He submitted that had made the said entry while taking out of the accused Vats from the Hawalat". Ld. Defence Counsel further referred to the cross examination of PW17, wherein he stated that "the recovery of the car at the instance of the accused Mukesh Vats and other coaccused were made after producing them in the court. I had not made any arrival entry when we returned back to the PS after producing the accused in the court at about 01:30 PM".
81. Ld. Defence Counsel argues that from the perusal of the above said depositions & cross examination by all the above said witnesses, it is very clear that the recoveries of hairs and blood sample SC No.58265/2016, FIR No. 946/2004 Page 46 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 from the said vehicle is planted because the hairs & blood samples of the deceased were already in possession of the police officials, who had brought from the hospital and thereafter the same were planted in the said vehicle. Ld. Defence Counsel submits that the above said witnesses are not even sure about the timing when they have took out the accused persons from the lockup for the recovery of vehicle and these contradictions itself point out that the police officials have falsely & deliberately planted this vehicle.
82. I have considered the submission of Ld. Defence Counsel. The crux of the arguments of Ld. Defence Counsel is that if PW17 had taken out Mukesh Vats from Hawalat at 11:50 am on 5.11.2004 vide DD entry no.11A (Ex.PW17/DA1), how PW12 Ct. Naresh is testifying that they were taken out at 3:30 pm. I agree that this is an anomaly in the testimonies of two witnesses but it is necessary to mention that PW15 has clearly stated that in his presence Inspector N. K. Meena had taken out the accused persons from the lock up and he had made an entry to that effect. I have seen DD entry Ex.PW17/DA1, which corroborates the statement of PW17 that accused persons were taken up from the lock up at 11:15 am on 5.11.2004. In such scenario, it can be said that due to lapse of time, PW12 Ct. Naresh could not tell the correct time as to when the accused persons were taken out.
SC No.58265/2016, FIR No. 946/2004 Page 47 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Therefore, it is not reasonable to draw an inference from the aforesaid contradiction in the time that the car in question had already been recovered and blood and hair had been planted in it.
Dickey of the car no. DL8CB0341
83. Ld. Defence Counsel further points out that PW17 IO N. K. Meena stated in examination in chief that the blood and the hairs were found in the dickey of the car. However, in the Maruti Car there was no dickey in the said car.
84. I disagree with this submission. It is not necessary that every car should have a separate dickey. The photographs of the Maruti Car show the back side of the car which can be termed as dickey.
Non mention of the name of Ct. Naresh (PW12) by Investigating Officer N. K. Meena (PW17) in his testimony
85. Ld. Defence Counsel submits that the PW12 HC Naresh Kumar stated in chief examination on page no.1 that "On 04.11.2004, I was posted at PS: Shalimar Bagh, Delhi. On that day, I had joined the investigation of this case with Inspector N. K. Meena and SI K. P. Tomar and we were in Gov. vehicle. We went to H. No. H52, Shakurpur, Rani Bagh i.e. house of the accused Mukesh Vats present in court today, correctly identified by the witnesses and arrested the SC No.58265/2016, FIR No. 946/2004 Page 48 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 accused Mukesh Vats vide arrest memo Ex.PW12/A same bears my signatures at point A and that of accused Mukesh Vats at point B. The personal search of accused Mukesh Vats was conducted vide memo Ex.PW12/B same bears my signature at point A and that of accused Mukesh at point B. Accused Mukesh Vats interrogated and he made disclosure statement".
86. Whereas, the PW17 IO N. K. Meena stated that on 04.11.2004, he was posted as an Additional SHO PS Shalimar Bagh, on that day, investigation of this case was marked to him on 04.11.2004 and he reached at the house of suspect Mukesh Vats and he was interrogated.
87. Ld. Defence Counsel submits that there is a contradiction in such statement of these two witnesses because the PW17 has nowhere mentioned that PW12 or any other police official was with him.
88. I am of the opinion that this is not a contradiction in any manner. Though, it is a minor omission.
Why the knife was not recovered on 4.11.2004, though the dead body was recovered and accused Sharif had disclosed about the knife
89. Ld. Defence Counsel submits that the PW12 stated on the SC No.58265/2016, FIR No. 946/2004 Page 49 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 page no.3 of the cross examination in line no.22 stated that the second accused (Sharif) has also disclosed that he had thrown the knife used in the commission of offence in the bushes, whereas the PW17 and PW15 have not stated in their examination in chief or the cross examination, confirming such statement of the PW12.
90. Ld. Defence Counsel submits that if the accused has confessed about the knife on 04.11.2004 itself, then why the recovery was not made on that day itself, specially when the dead body is alleged to have been recovered on that day itself. Accordingly Ld. Defence Counsel submits that this story of the police officials creates the doubt and shows that there is no concern of the accused persons with such offence whereas they have been planted.
91. I have considered the submission and I am of the opinion that there is nothing which makes the aforesaid testimony doubtful. There is no fix standard or method of conducting investigation. However, I point out that the recovery of dead body had been effected in the evening of 4.11.2004. Since the winter season had started, the light must have become dim and it would have been difficult to find out a small knife in the bushes. Therefore, the recovery was effected the next day.
SC No.58265/2016, FIR No. 946/2004 Page 50 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Why Ct. Naresh (PW12) did not meet the accused persons in the police station on 5.11.2004
92. Ld. Defence Counsel submits that PW12 deposed in the para no.1 on page no.5 in line no.16 of the cross examination that "I remained in mortuary till 11:00 AM on dated 05.11.2004 till the time the PMR was conducted and thereafter I came back to the police station along with the pulandas handed over to me after the PMR. At that time, I was not aware about the place where the accused persons were kept. The accused persons did not meet me in the police station on 05.11.2004. Vol. But I was aware about their whereabouts in the police station".
93. Ld. Defence Counsel submits that it is to be noted that if this witness i.e. PW12 had not met the accused persons in the police station, how his signature were found/obtained on the recovery memo and moreover, how the spray bottle, knife and car can be recovered on 05.11.2004, so it become very clear that the story of recovery of these things are totally false.
94. I disagree with the submissions of Ld. Defence Counsel.
Ld. Defence Counsel is reading the testimony of PW12 out of context. As per cross examination dated 24.1.2011, PW12 testified that he along with a driver took the dead body to mortuary, Sanjay Gandhi SC No.58265/2016, FIR No. 946/2004 Page 51 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Memorial Hospital and he remained in the hospital that night. He received exhibits from the doctor on 5.11.2004 after 10:00 am. In cross examination quoted above, PW12 has testified that though he was present in the police station after 11:00 am on 5.11.2004 but he had not met the accused persons in the police station, though he was aware of their presence in the police station. This testimony does not disprove the fact that PW12 had participated in the investigation in which accused Sharif (A2) got the knife and spray bottle recovered.
Blood on the knife
95. Ld. Defence Counsel further submits that the prosecution case is that the blood was present on the knife which was recovered by the police on the instance of accused Sharif but the police officials have not sent the said blood to FSL to prove the blood of the deceased or to prove their own version of having blood on the said knife.
96. I disagree with this submission. The FSL report Ex.PW17/D clearly mentions Exhibit 5 knife bearing dark brown stains and test was positive for blood test. The FSL report Ex.PW17/C shows that blood swab gauze from knife contained blood of B group from human origin.
97. It is argued by Ld. Defence Counsel that as per prosecution, the spray bottle was recovered on the instance of the SC No.58265/2016, FIR No. 946/2004 Page 52 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 accused Sharif but the said bottle has never been produced before the court which shows that the said recovery is also planted upon the accused persons only to implicate the accused persons.
98. I disagree with this submission. It is true that the spray bottle was not exhibited but the fact that it was sent to CFSL and PW18 Sh. A. S. Data, Senior Scientific Assistant, CFSL, Kolkata has testified in respect of having examined the exhibit marked as 827/II containing black colour metallic spray container having some liquid inside and the words "U R SAFE PEPPER SPRAY". He also mentioned that the remnants of the exhibits were sent back including the spray bottle. Therefore, non exhibition of the spray bottle does not lead to an inference that the same was a planted article by the police with a view to falsely implicate the accused persons.
Recovery of car no. DL1CH9939 of the deceased
99. Ld. Defence Counsel further submits that the PW15 Inspector K. P. Tomar stated in the chief examination that "on 02.11.2004, I came to know that the car bearing registration no. DL 1CH9939 of Ramesh Gupta was found and deposited at CIA PS Bahadurgarh. I reached CIA PS Bahadurgarh and met with ASI Ramphal and Inspector Incharge and made inquiries from them. On 03.11.2004, I again went to CIA PS Bahadurgarh and requested the SC No.58265/2016, FIR No. 946/2004 Page 53 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Inspector Incharge for releasing of the said car. The car was handed over to me. I again interrogated ASI Ramphal, who has brought the car to the police station Bahadurgarh. Thereafter, I took the said car to PS Shalimar Bagh and deposited the same in Malkhana".
100. Ld. Defence Counsel submits that it is to be noted that the information of recovery of vehicle was already come to know to police on 02.11.2004 and it was come in police station on 02.11.2004 and again on 03.11.2004 but even thereafter no information of any kind was given to the family members of the deceased either recovery of the vehicle or facts.
101. I am of the opinion that the said vehicle no. DL1CH9939 belonging to the deceased does not provide any evidence against the accused persons. Therefore, the aforesaid submission does not dent the prosecution case.
Initially no incriminating evidence was found against accused Mukesh Vats (A1)
102. Ld. Defence Counsel points out that during the cross examination on 24.05.2011, in the line no.9 of page no.1, it was deposed by PW15 Inspector K. P. Tomar that "it is correct that initially there was no incriminating evidence could be found against accused Mukesh Vats from 01.11.2004 to 04.11.2004 during the investigation SC No.58265/2016, FIR No. 946/2004 Page 54 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 of this case".
103. I am of the opinion that it was a case where custodial interrogation of Mukesh Vats was required. The evidence in this case started coming with the change of the Investigating Officer namely PW17 Inspector Nand Kishore Meena. It appears to me that this change of Investigating Officer took place due to lackadaisical approach of the first Investigating Officer namely PW15 Sub Inspector K. P. Tomar.
Whether last known location of deceased was Jind
104. Ld. Defence Counsel has further pointed out the cross examination of PW15 Inspector K. P. Tomar dated 24.5.2011 on page no.2 in the line no.3 that "it is correct that I had come to know during this period that the deceased had told for going to Jind. I had conducted the investigation on this line as well. On 01.11.2004 I had gone to Bhorgarh near Narela or Alipur". After seeing the case diary, the witness further stated that "on 01.11.2004, it had come to my knowledge that the deceased had gone towards the Jind but investigation was not carried out on 01.11.2004 in regard to this aspect".
105. Ld. Defence Counsel hs further pointed out that in the line no.9 of the page no.2 of the cross examination, it is deposed by PW15 SC No.58265/2016, FIR No. 946/2004 Page 55 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 that "I had obtained the location of the telephone of the deceased on 31.10.2004. It is correct that from this telephone number the location of the person having its telephone was found to be of Prahladpur Banbgar Near Karala Village".
106. During the cross examination on 30.08.2011 in the para no.3, PW15 has testified "it is correct that before calling the accused Mukesh Vats at PS I had already come to know through an information that the deceased had gone towards Jind. I do not remember the name of the person, who had informed me about the said fact".
107. Ld. Defence Counsel has further pointed out to the page no.2 in line no.4 of cross examination, where PW15 has testified "I did not got to Jind even after receipt of the said information and again said that I came to know through Naresh and Jagdish, brother of deceased on 01.11.2004 that the deceased could have gone towards Jind. But I do not remember the time".
108. Referring to the aforesaid testimony of PW15 in cross examination, Ld. Defence Cousnel submits that when the police officials were already told by Naresh and Jagdish i.e. brother of the deceased that the deceased had gone towards Jind, then why the investigation was not done towards Jind.
SC No.58265/2016, FIR No. 946/2004 Page 56 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
109. Further it is argued that the last seen place is now Jind, which also creates doubt in the prosecution story, having not been clear about this case but only implicated the innocent accused persons.
110. I have considered the submissions. PW15 has testified that on 1.11.2004 FIR was registered and on 2.11.2004 the car no. DL1CH 9939 of deceased Ramesh Gupta was found deposited in CIA PS Bahadurgarh. Therefore, there was no reason to investigate the aspect of deceased going to Jind. I also disagree with the submission of Ld. Defence Counsel that last place found in respect of deceased was Jind. Contradictions in the time of various events of investigation and the ambiguity as to at what time the accused persons were produced for the first time before Ld. Metropolitan Magistrate
111. Ld. Defence Counsel has further argued that during the cross examination on 07.07.2012 in the para no.1 of the line no.6, PW17 has testified that "the investigations regarding the recovery qua accused Mukesh Vats have not been completed on 04.11.2004. The accused Mukesh Vats was taken out from the lock up for producing before concerned MM for taking PC and for recovery of car". Whereas, on the page no.2 in line no.1, he testified that "after getting the remand we first came to the first P.S. but I do not remember the time arrival entry was made in the Rojnamcha. At this stage, the witness SC No.58265/2016, FIR No. 946/2004 Page 57 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 saw the Rojnamcha DD register no.2 and testified that there is no entry in this Rojnamcha on 05.11.2004.
112. Ld. Defence Counsel has drawn my attention to cross examination dated 7.7.2012 of PW17 on page no.2, line no.10, "After returning to P.S. only proceeded with accused Mukesh Vats, whereas, other two accused persons were left in P.S. but I do not remember whether they were given up in lock up or in the custody of some police official. I do not remember the time when I proceeded with the accused Mukesh Vats for recovery of car, however, it was day time may be I had taken him at about 02 pm (day time) on 05.11.2004. It is incorrect that the accused was produced by me between 02 or 03 pm on that day in the court. I do not remember when I left the court after taking remand."
113. Ld. Defence Counsel has pointed out that during the cross examination dated 07.08.2012, on page no.1 in the line no.1, PW17 testified "I had made the entry when I had taken out the accused Mukesh Vats from the Hawalat of PS for recovery of car. At this stage, witness has pointed out towards the entry no. 11A at 11.50 PM on 05.11.2004." He stated that he had made the said entry while taking out the accused Mukesh Vats from the Hawalat, same is Ex.PW 17/DA1. PW17 admitted in cross examination that the said entry, SC No.58265/2016, FIR No. 946/2004 Page 58 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Ex.PW17DA1, does not mention about the taking out of the accused Mukesh from Hawalat.
114. Ld. Defence Counsel has further pointed out that on page no.2 line no.1 of the cross examination dated 7.8.2012, PW17 has testified that "I had made entry vide DD No. 25A at 11 PM regarding giving up the accused Mukesh Vats in the Hawalat on 04.11.2004. When the entry no. 25A was made, at that time the SHO K. P. Tomar was with me. I do not remember K. P. Tomar was with me or not. I do not remember besides SHO who else amongst police official was with me. I was not aware regarding the entry no.55B dated 04.11.2004 at 09.00 PM, regarding the blockage of traffic in the Shalimar Bagh, which is Ex.PW17/DA2 as the same was not brought into my notice on that day."
115. Ld. Defence Counsel further pointed out that in the para no.2 of page 2 of cross examination dated 7.8.2012, wherein PW17 testified "The recovery of the car on the instance of the accused Mukesh and other coaccused persons were made after producing them in the court I had not made any arrival entry when we returned back to the PS after producing the accused in the court at about 01.30 PM. I do not remember whether the SHO was informed that we are proceeding towards the recovery of car."
SC No.58265/2016, FIR No. 946/2004 Page 59 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
116. Accordingly Ld. Defence Counsel argues that there are serious contradictions in the time of the various events of investigation. Ld. Defence Counsel points out that if accused Mukesh Vats was produced for the first time on 5.11.2004 before Ld. Metropolitan Magistrate after his arrest and police remand was taken, it is highly doubtful that if accused Mukesh Vats remained in investigation for the whole day on 5.11.2004, when he was produced before Ld. Metropolitan Magistrate. It is argued that the car was recovered at the instance of accused persons at about 4:00 pm to 5:00 pm, whereas the accused persons were also taken out from the lock up at abut 4:00/5:00 pm.
117. I have considered the submission. In cross examination, Ld. Defence Counsel did not sought clarification from the witnesses specially from PW17 as to at what time accused persons were produced before Ld. Metropolitan Magistrate. PW17 Inspector Nand Kishore Meena has testified that accused persons were apprehended on 4.11.2004, they got the dead body recovered. Testimony of PW17 and the application for judicial remand (carbon copy, which is part of judicial record) shows that on 5.11.2004 accused persons were produced before the court and three days' PC was obtained. The carbon copy of order of police remand is on back side of this SC No.58265/2016, FIR No. 946/2004 Page 60 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 application. After police remand, the accused persons were produced Ld. Metropolitan Magistrate on 8.11.2004 and thereafter, they were remanded to judicial custody. When the accused persons were in police custody on 5.11.2004, the recovery of Maruti Car No. DL8CB 0341 was effected near the house of accused Mukesh at his instance.
118. In nutshell, if there is ambiguity in the time of various events of investigation and the production of accused persons before Ld. Metropolitan Magistrate, the same does not affect the prosecution case.
The proved facts
119. Having discussed the contradictions, improvements and deficiencies in the prosecution case as argued by Ld. Defence Counsels and having held that the same do not have the capacity to dent the prosecution case, I will discuss the facts, which have been proved by the prosecution.
120. First fact is that PW9 Jagdish Kumar, the brother of the deceased, has testified that deceased left the house telling that he was going to meet accused Mukesh Vats in his statement/complaint Ex.PW9/A. This version is being challenged as to why he did not mention the name of Mukesh Vats in the DD entries no. 26A (Ex.PW10/A) dated 31.10.2004 at 8:51 pm and DD no. 30A SC No.58265/2016, FIR No. 946/2004 Page 61 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 (Ex.PW10/B) dated 31.10.2004 at 10:50 pm. I have explained in earlier part of the judgement that these informations were not provided to police by PW9. It is necessary to mention here that although deceased told PW9 that he was going to meet Mukesh Vats, there was no reason for PW9 or his family members to think or believe that deceased might have been murdered by Mukesh Vats. It is also a fact that whenever a person is missing, the police leaves the family members to trace out the missing person and it is only when the efforts of family members failed, the police registers the FIR. PW9 and his family members had no enmity with Mukesh Vats and they had no reason to mention his name in the FIR falsely. The testimony of PW9 that deceased left the home telling that he was going to meet Mukesh Vats (A1) is corroborated from the fact that in the CDR (P3) of mobile phone no. 9312210689 belonging to deceased shows calls between this mobile phone and the landline in the name of father of Mukesh Vats installed at the house of Mukesh Vats. It means that deceased was in contact with accused Mukesh Vats at about 12:00 noon on 31.10.2004 after he left his house.
121. It is necessary to mention that police was in no hurry to arrest accused Mukesh Vats for about three days and during this period he was called and interrogated and was released. I have SC No.58265/2016, FIR No. 946/2004 Page 62 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 already discussed that the allegation of the defence that police was biased and worked under the pressure of certain politicians is without any basis. Therefore, it is proved that investigation in the present case was fair.
122. On 4.11.2004 investigation was handed over to Inspector N. K. Meena (PW17), who reached at the house of accused Mukesh Vats. On interrogation, Mukesh Vats confessed about kidnapping and committing murder of Ramesh Gupta. His disclosure statement Ex.PW12/G was recorded.
123. Pursuant to his disclosure statement, accused Mukesh Vats led the police to Village Karala in Anand Dham Colony, where accused Kamlesh and Sharif were apprehended at the instance of accused Mukesh Vats.
124. Accused Sharif and Kamlesh Kumar were interrogated and Kamlesh made disclosure statement Ex.PW12/C and accused Sharif made a disclosure statement Ex.PW12/J.
125. PW17 Nand Kishore Meena has testified that on pointing out of the accused persons, they reached at the place where they had dumped the dead body near the Nahar/Ganda Nala by packing it in a gunny bag. This gunny bag was taken out from the Ganda Nala and on opening the same, dead body of Ramesh Gupta was found in it.
SC No.58265/2016, FIR No. 946/2004 Page 63 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 Situation of gunny bag in Ganda Nala is well depicted in the photographs, which I have already discussed. In cross examination PW17 had explained that the accused persons had pointed out the dead body one by one. I may point out that PW12 Ct. Naresh has also testified in examination in chief that accused persons pointed out one by one the Ganda Nala, where they threw the dead body by putting the same in a bora. In cross examination, PW12 testified that first of all accused Kamlesh led the police party to the place where dead body was thrown by them. Thereafter, accused Sharif led them to the said place and thereafter, accused Mukesh Vats led them to that place. It is argued by Ld. Defence Counsel for accused Mukesh Vats (A1) that discovery of the dead body had already taken place at the instance of accused Kamlesh and Sharif. Therefore, it is argued, the discovery of the gunny bag at the instance of Mukesh Vats, who led the police party to Ganda Nala, is of no consequence. I disagree with this submission. The fact of the gunny bag containing the dead body and the fact that the same was lying in Ganda Nala was discovered by each accused in their disclosure statements. The disclosure statement of accused Mukesh Vats (A1) was recorded by the police first of all at his residence and in this disclosure statement he had not only mentioned the names of the coaccused persons but also the fact that the dead SC No.58265/2016, FIR No. 946/2004 Page 64 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 body was thrown in the drain.
126. Accused Mukesh Vats not only pointed out accused Sharif and Kamlesh but those accused persons one by one pointed out the dead body packed in the gunny bag. I would like to refer Jaffar Hussain Dastagir Vs. State of Maharashtra 1969(2) Supreme Court Cases 872. In this judgement one accused made a statement that he would show the person to whom he had given the stolen diamonds. At his instance, police arrested other accused and the said accused got the stolen diamonds recovered. Hon'ble Supreme Court of India held the disclosure statement of first accused to be admissible in evidence, even though the stolen diamonds were not recovered at the instance of first accused.
127. In the present case also the accused Mukesh Vats disclosed the names of accused Sharif and Kamlesh in his disclosure statement. The dead body in gunny bag was pointed out by accused Sharif and Kamlesh. Therefore, the disclosure statement of Mukesh Vats regarding the names of accused Sharif and Kamlesh is admissible in evidence and has been duly proved by the prosecution as Ex.PW12/G. After pointing out of the dead body by accused Sharif and Kamlesh, accused Mukesh Vats also pointed out the gunny bag containing dead body. Therefore, the chain is complete squarely putting the accused SC No.58265/2016, FIR No. 946/2004 Page 65 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 persons in a situation where the court demands explanation from them as to how the presence of dead body in a gunny bag lying on the bank of a drain, which is a desolate place was in their exclusive knowledge. The accused persons have offered no explanation and therefore, the only inference, which can be drawn, is that it were the accused persons, who committed murder of Ramesh Gupta.
128. PW12 and PW17 have proved that on 5.11.2004 accused Mukesh Vats got recovered car no. DL8CB0341 from near his house and he disclosed that the said car was used for taking the dead body. The car was recovered vide memo Ex.PW12/E. The car was taken to PS Shalimar Bagh, where crime team officials were called. Blood and hair were found in the dickey of the car. Blood stains carpet was cut and thereafter it was kept in a cloth pulanda and sealed with the seal of KP. He seized the same vide seizure memo Ex.PW12/Q. These exhibits were sent to CFSL Kolkata. As per CFSL report Ex.PW17/C, these exhibits found to contain human blood of B group.
129. PW12, PW15 and PW17 have also proved recovery of knife and a spray bottle from the bushes near Ganda Nala at the instance of accused Sharif (A2) vide recovery memo Ex.PW12/O. The said knife and spray bottle were also sent CFSL. The blood on knife also gave positive result for human blood of B group. It is pertinent to note that SC No.58265/2016, FIR No. 946/2004 Page 66 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 PW7 Dr. V. K. Jha, who conducted postmortem, testified that the clothes, jute bag, blood were sealed and sample of hair of the deceased were also sealed with the seal of SGM. As per report Ex.PW17/D (proved by PW19 Sh. M. K. Majumdar, Senior Scientific Assistant) the characteristics of hair strand Ex.2 (taken from hospital vide memo Ex.PW12/R, which mentions a paper envelope containing the hair of deceased at serial no.2) were consisted with the hair strands of Ex.7 (taken from car no. DL8CB0341 by IO vide memo Ex.PW12/Q) and found to be similar with each other. It means that hairs found in the car recovered at the instance of accused Mukesh Vats (A1) had the strands of hair of the deceased. I may make it clear that the CFSL report Ex.PW17/D describes Ex.2 as "one sealed paper packet marked 2 contained some strands of black hair." The recovery memo Ex.PW12/R also shows that in hospital the hair of the deceased were enclosed in a paper envelope and were seized by the IO. Therefore, it is clear that the hair seized in the hospital by IO have been marked as Ex.2 in the CFSL.
130. It is further necessary to mention that as per recovery memo Ex.PW12/Q the hairs were recovered from car no. DL8CB 0341 by enclosing the same in a pulanda. The FSL report Ex.PW17/D shows Ex.7 in sealed packet. Therefore, the hair recovered from car SC No.58265/2016, FIR No. 946/2004 Page 67 of 69 State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019 have been mentioned in the CFSL report as Ex.7.
131. Similarly, blood stains in the car and on the knife were of human origin of B group. The Investigating Officer seized the blood sample gauze of the deceased from the hospital, which is mentioned at serial no.3 of the seizure memo Ex.PW12/R. The FSL report Ex.PW17/D mentions Ex.3 as blood gauze piece, which gave positive result for blood test. As per report Ex.PW17/C, the blood was found to be of human origin on it but group test was inconclusive.
132. Ld. Counsels for accused persons have argued that large number of persons have the blood group of B. Further, prosecution has not proved as to what was the blood group of the deceased. Therefore, the prosecution has been unable to prove that the blood group found in the car or on the knife was same as that of the deceased. I agree with this submission to some extent. However, it cannot be forgotten that at the same time, finding of blood in the dickey of the car is unusual thing. Similarly, why blood should be found on a knife. The car belongs to father of accused and was recovered at the instance of accused Mukesh Vats. The knife was recovered from the bushes at the instance of accused Sharif. These circumstances fully corroborate the prosecution case.
SC No.58265/2016, FIR No. 946/2004 Page 68 of 69State Vs. Mukesh Vats etc. Judgement dt. 16.1.2019
133. Therefore, in my opinion there is complete chain of the circumstances, which leads to the sole conclusion that it were the accused persons, who committed murder of Ramesh Gupta in furtherance of their common intention.
134. However, prosecution has been unable to prove charge under Section 364 IPC, 365 IPC and 201 IPC read with Section 34 IPC against the said accused persons. Therefore, both the accused persons are acquitted under these Sections.
135. However, both the accused persons namely Mukesh Vats (A1) and Sharif (A2) stand convicted under Section 302/34 IPC for committing murder of Ramesh Chand.
Announced in the open court on 16.1.2019. VINOD KUMAR Digitally signed by VINOD KUMAR Date: 2019.01.16 15:17:13 +0530 (Vinod Kumar) Additional Sessions Judge05 (North) Rohini Courts Delhi SC No.58265/2016, FIR No. 946/2004 Page 69 of 69