Delhi District Court
Fir No.07/09 State vs . Bhagirath And Deepak Nanda on 6 January, 2014
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
IN THE COURT OF DR. VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE 02: DWARKA COURTS
NEW DELHI
SC No. 55/11
FIR No. 07/09
Police Station Bindapur
U/Section 302/397/34 IPC
Received on assignment 02.07.2009
Reserved for orders on 17.12.2013
Judgment announced on 06.01.2014
State Vs 1. Bhagirath S/o Sh. Raja Ram R/o
H.No.313/82 E, Tulsi Nagar, Inder
Lok, New Delhi.
2. Deepak Nanda s/o Shri Gopal
Kishan Nanda R/o H. No.313/83,
Tulsi Nagar, Inder Lok, Delhi
J U D G M E N T
1. The accused persons are sent for trial for the offences punishable under Section 302/397/34 IPC.
2. The brief facts of the prosecution case are that on 09.01.2009, at about 10.49pm, DD No. 31A, PS, Bindapura was received on the basis of a PCR Call from the mobile phone number 9871838600 to this effect that two boys and one lady have been found murdered at B42, School Road, Near Post Office Uttam Nagar, Delhi. The call was assigned to ASI Lakh Ram for taking action, who alongwith constable Vishram left for the spot. The St Vs. Bhagirath and Deepak Nanda 1/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda SHO was also informed by phone who also reached the place of incident. The police staff was also directed to reach at the spot through wireless message. ASI Lakh Ram alongwith Constable Vishram reached the place of incident i.e first floor. A lady aged about 33 years was lying dead on the floor and two children aged 7years and 4years were found lying dead on the spot. They have been injured seriously by inflicting injuries on their neck and faces. Their names were disclosed as Seema (W/o Hem Chand), Kunal aged 7 years and Nishant aged 4 years sons of Hem Chand. ASI Lakh Ram summoned Crime Team and prepared the rukka and sent through constable Vishram to Police Station Bindapur for registration of FIR. No witness was found at the spot. ASI Khajan Singh, Incharge Crime team also reached the spot and inspected the spot. The case was registered and the copy of the FIR was given to Ct. Vishram who reached at spot.
3. Inspector/SHO Hoshiyar Singh alongwith staff reached the spot and found three dead bodies, one of the lady and two of her children I/C Crime Team inspected the spot of incident and took its photographs, fingerprint impressions and also took photographs of tea cups and glasses. The finger prints were also lifted from the dressing table alongwith other articles. IO inspected the spot of incident. Hem Chand, husband of the deceased lady had told that these cups were always used for taking tea and it appeared that some one/some guest/known person has come to his house. Statement of Hem Chand under section 161 Cr.PC was recorded. The dead bodies were sent to Mortuary, DDU hospital under the supervision of Ct. Vishram. I.O lifted the blood stained bed St Vs. Bhagirath and Deepak Nanda 2/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda sheet, blood stained quilt cover. He also lifted blood from the dressing table and floor. The blood stained piece of the floor and sample blood were seized and sealed. Apart from this, IO also lifted blood stains found on the jewellery box, two glasses and two cups were also seized. Dressing table lying at the spot was also seized. Sh. Moti Lal, father of the deceased was interrogated whose statement under section 161 Cr.PC was recorded. However, I.O recorded the statement of Satish Kumar, his wife Kanchan and his two sons Sumit Kumar and Amit Kumar, who were residing at ground floor. I.O had suspicion on the husband of deceased. IO after locking the said house i.e place of incident went to police station and got deposited all the seized articles with the MHC(M). He also recorded the statement of ASI Lakh Ram and Const. Vishram and thereafter, husband of deceased Hem Chand was also interrogated. IO/SHO went to DDU hospital and conducted the inquest proceedings. The postmortem of three dead bodies was conducted and after postmortem the dead bodies were handed over to Moti Lal, the father of the deceased Seema. The sealed parcels were deposited with the MHC(M). Smt. Madhavi, sister of the deceased was also interrogated and her statement under section 161 Cr.PC was recorded. IO had also recorded the statement u/s 161Cr.P.C. of I/C Crime Team and photographer Ct. Praveen Kumar.
4. I.O had suspicion on Hem Chand (husband of deceased) therefore, IO again interrogated him and went to Laxmi Book Mart , Gurgaon (the factory in which Hem Chand was working ) and interrogated the owner of the factory and workers present there and recorded their statements u/s 161Cr.P.C. On 12.01.2009 the case file was handed over to Inspector St Vs. Bhagirath and Deepak Nanda 3/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Digvijay Singh for further investigation and thereafter he tried got permission from the Court for Narco Test of Hem Chand i.e husband of deceased but said permission was declined and second IO recorded statements u/s 161Cr.P.C. separately, witnesses stated that some jewellery articles are also missing from the almirah of deceased Seema upon which section 397IPC was added. On 03.02.2009 at 5:30 pm on the basis of secret information, two boys namely Deepak Nanda and Bhagirath were arrested near Dhaula Kuan Bus Stop. They were interrogated who accepted their guilt. Their disclosure statements were recorded. They took police party to vacant plot at K Block, Mohan Garden, Uttam Nagar, opposite Garima Tailor pointing out memo was prepared. Two blood stained Ustaras (Razor) which were used as weapon of offence in the incident were recovered. Sketch of both the Ustaras on white sheets prepared . Both the razors were kept in cloth pulinda and sealed and taken in to possession. One jewellery purse containing stolen jewellery of deceased Seema was recovered from the locker of almirah at the first floor of house No. E313/83, Tulsi Nagar, Delhi at the instance of accused Deepak and same was taken into possession. On 06.02.2009, IO went to the house of Bhagirath i.e. 313/82E, Ground Floor, Tulsi Nagar, Delhi and at his instance, IO got recovered a golden necklace from iron trunk and the same was kept in cloth pulinda and the sealed by the IO and taken into possession on the same day. IO at the instance of accused Deepak, got recovered jewelery articles including a motorcycle of make Yamaha bearing registration number DL4SA0745 and the same were also taken into possession. IO came back to the police station and deposited the recovered jewellery articles in the malkhana. IO recorded the statements St Vs. Bhagirath and Deepak Nanda 4/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda u/s 161Cr.P.C. of ASI Tej Singh and HC Naresh Kumar. On 07.02.2009, supplementary disclosure statements of both the accused were recorded who were produced before the Court and two days PC remand was taken. On 08.02.2009, accused Deepak got recovered his T shirt from the bushes of Hathora Ram Park, Lawrence Road, Delhi, which he was wearing at the time of commission of offence. He also got recovered his pant, socks, shoes, helmet of black colour and sweater from his residential house which were taken into possession. Further, on the same day, accused Bhagirath got recovered his T shirt from Hathora Ram Park, Lawrence Road. He also got recovered his leather jacket, one pant/jeans, sport shoes which were kept in a white polythene (which he wore at the time of commission of offence from his house) and the same were taken into possession. He also got recovered one helmet from Hathora Ram Park, Lawrence Road which was also seized and sealed in a pullanda. IO deposited all the recovered articles in the malkhana and recorded statements u/s 161Cr.P.C. of ASI Tej Singh and HC Naresh Kumar. On 09.02.2009, both the accused persons were produced in the Court and sent to JC as per Court's order. After investigation, charge sheet was filed before the Court concerned.
5. To substantiate this case, prosecution has allegedly examined 36 witnesses but by sheer inadvertence after examining PW26, PW30 constable Praveen should have been mentioned as PW27 and, therefore, no witness has been examined as PW27, PW28 and PW29. As such only 33 witnesses have been examined. They have supported the case of the prosecution.
St Vs. Bhagirath and Deepak Nanda 5/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
6. The particulars of the witnesses examined by the prosecution and documents proved by them respectively are as under: LIST OF WITNESSES Witness no. Name of the witness examined PW1 Sumit Kumar PW2 Sh. Amit Kumar PW3 Sh. Moti Lal PW4 HC Ramphal PW5 SI Mahesh Kumar PW6 Dr. B.N.Mishra PW7 Const. Devender PW8 ASI Khajan Singh PW9 Sh. Sumedh Kumar Sethi, Ld. MM, Dwarka Courts PW10 SI Shanti Prakash PW11 HC Ashok Kumar PW12 Smt. Kanchan PW13 Sh. Satish Kumar PW14 Sh. Rajiv PW15 Sh. Vijay Pratap Singh PW16 Dr. Komal Singh PW17 Sh. Neeraj Bidani PW18 HC Vishram Singh PW19 ASI Lakh Ram PW20 HC Vikram PW21 Const. Ravinder Kumar St Vs. Bhagirath and Deepak Nanda 6/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda PW22 ASI Tej Singh PW23 HC Naresh Kumar PW24 Hem Chand PW25 Dr. Adesh Kumar PW26 Sh. A.K.Shrivastava PW30 Const. Praveen Kumar PW31 Inspector Digvijay Singh PW32 Naresh Kumar PW33 Inspector Hoshiyar Singh PW34 Retd. ASI/Tech Devender Kumar PW35 SI Gyanender Singh PW36 HC Rakesh DETAILS OF DOCUMENTS EXHIBITED BY THE WITNESSES Exhibit No. Date of Details of exhibited documents.
Statement PW1 : Sumit Kumar No Exhibits PW2: Amit Kumar No exhibits PW3: Moti Lal Ex.PW3/A 29.03.2010 Statement of the witness regarding identification of dead bodies of the deceased Seema, Nishant and Kunal.
Ex.PW3/B to 29.03.2010 Receipts of dead bodies namely Seema,
PW3/D Nishant and Kunal.
Ex. PW3/E 29.03.2010 Signature of the witness on the TIP
proceedings.
St Vs. Bhagirath and Deepak Nanda 7/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
Ex. P1 29.03.2010 Articles (including two silver bangles (kara),
one pair of golden jhumkas, one pair of
golden earrings (bali), three silver pajebs and one ring of gold ) were identified by witness in TIP proceedings.
Ex.P2 29.03.2010 Gold necklace of deceased Seema which was identified by witness in TIP proceeding.
PW4: HC Ramphal
PW4/A 06.05.2010 Entries in register No.19 regarding deposition
of pullandas
PW5: SI Mahesh Kumar
PW5/A 06.05.2010 Preparation of scaled site
plan
PW6: Dr. B.N.Mishra
Ex.PW6/A 06.05.2010 Details of postmortem report of deceased
Seema with external and internal injuries.
PW6/B 06.05.2010 Subsequent opinion regarding injury no.1
PW7: Const. Devender
Ex.PW7/A 07.05.2010 Report regarding lifting of chance prints from
a glass, cup of tea and dressing table.
PW8 : ASI Khajan Singh
Ex.PW8/A 07.05.2010 Detailed report of inspection of site plan.
PW9: Sh. Sumedh Kumar Sethi, Ld. MM, Dwarka Courts Ex.PW9/A 07.05.2010 Copy of proceedings was allowed to the IO on his application.
Ex.PW9/B 07.05.2010 Application for Test Identification
Proceedings
PW10 : SI Shanti Prakash
Ex.PW10/A 22.07.2010 Copy of DD No. 31A which is handed over by
St Vs. Bhagirath and Deepak Nanda 8/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
this witness to ASI Lakh Ram.
Ex.PW10/B 22.07.2010 Handing over of rukka and copy of FIR to
Const. Vishram.
Ex. PW10/C 22.07.2010 Copy of FIR
PW11: HC Ashok Kumar
No Exhibits
PW12: Smt. Kanchan
No Exhibits
PW13 Sh. Satish Kumar
No exhibits
PW14: Sh. Rajiv
No Exhibits
PW15 : Sh. Vijay Pratap Singh
No Exhibits
PW16: Dr. Komal Singh
Ex.PW16/A & 01.09.2010 The detailed postmortem report of deceased
PW16/B Nishant, aged about 4 years and deceased
Kunal, aged about 7 years in which injuries
are mentioned.
Ex.P3 and P4 01.09.2010 Ustras which were shown to the witness and
who opined that the cut throat injuries
mentioned in postmortem reports in both
cases could be possible by these weapons.
PW17: Sh. Neeraj Bidani
Ex.PW17/A 04.10.2010 Furnishing of computerized information
regarding vehicle No. DL 4SA 0745
PW18 : HC Vishram Singh
Ex.PW18/A 23.11.2010 Seizure memo of blood which was lying on
the floor.
Ex. PW18/B 23.11.2010 Seizure memo of bed sheet and sweater of a
St Vs. Bhagirath and Deepak Nanda 9/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
child, which was lying on the bed with a
blood stains.
Ex.PW18/C to 23.11.2010 Seizure memo of quilt cover, dressing table
PW18/E cloth and jewellery box.
Ex.PW18/F & 23.11.2010 Seizure memo of earth control i.e floor of the
PW19/G room without blood and with blood
Ex.PW18/H 23.11.2010 Seizure memo of two glasses which were lying
in front of the room.
Ex.PW18/J 23.11.2010 Seizure memo of dressing table
Ex.PW18/K 23.11.2010 Seizure memo of two tea cups.
Ex.PW18/L 23.11.2010 Seizure memo of viscera, blood gauze and
sample seal of deceased Nishant.
Ex.PW18/M 23.11.2010 Seizure memo of viscera, blood gauze and
sample seal of deceased Kunal.
Ex.PW18/N 23.11.2010 Seizure memo of viscera, blood gauze and
sample seal of deceased Seema.
Ex.P5 23.11.2010 Jewellery box which was seized from the spot.
Ex.P6 & P7 23.11.2010 Bed sheet and sweater which were seized
from the spot
Ex.P8 23.11.2010 Curtain, which was seized from the spot.
Ex.P9 23.11.2010 Quilt, which was seized from the spot.
Ex.P10 23.11.2010 Two glasses, which were seized from the spot.
Ex.P11 23.11.2010 Two tea cups, which were seized from the
spot.
Ex.P12 23.11.2010 Dressing table, which was seized from the
spot.
PW19: ASI Lakh Ram
Ex.PW19/A 23.11.2010 Rukka, which was prepared upon DD No. 31A.
PW20: HC Vikram
Ex.PW20/A 24.11.2010 Computerized PCR Form
St Vs. Bhagirath and Deepak Nanda 10/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
PW21 : Const. Ravinder Kumar
Ex. PW21/A & 25.11.2010 Verification reports of accused Bhagirath and
PW21/B Deepak Nanda.
PW22: ASI Tej Singh
Ex.PW22/A 15.01.2011 Disclosure statement of accused
Deepak.
Ex.PW22/B 15.01.2011 Disclosure statement of accused
Bhagirath.
Ex.PW22/C 15.01.2011 Arrest memos of accused Bhagirath & PW22/D and Deepak Nanda.
Ex. PW22/E 15.01.2011 Personal search memos of accused & PW22/F Bhagirath and Deepak Nanda.
Ex.PW22/G 15.01.2011 Pointing out memo of accused Bhagirath.
Ex.PW22/H 15.01.2011 Pointing out memo of accused Deepak Nanda.
Ex.PW22/J 15.01.2011 Sketch of Ustra, which is got recovered by accused Bhagirath.
Ex.PW22/K 15.01.2011 Seizure memo of ustra, which is got recovered by accused Bhagirath.
Ex.PW22/L 15.01.2011 Sketch of Ustra, which is got recovered by accused Deepak Nanda.
Ex.PW22/M 15.01.2011 Seizure memo of ustra, which is got recovered by accused Deepak Nanda.
Ex.PW22/N 15.01.2011 Seizure memo of gold/golden colour necklace, which is got recovered on the disclosure statement of accused St Vs. Bhagirath and Deepak Nanda 11/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Bhagirath.
Ex.PW22/P 15.01.2011 Seizure memo of one jewelery purse of red colour containing one pair of gold ear tops, one pair of golden colour ear rings, one golden colour finger ring, three pairs of pajeb of silver colour and two silver colour bangles of small children, which are got recovered on the disclosure statement of accused Deepak Nanda.
Ex.PW22/Q 15.01.2011 Seizure memo of motorcycle, which is got recovered on the disclosure statement of accused Deepak Nanda.
Ex.PW22/R 15.01.2011 Supplementary statement of accused Bhagirath.
Ex.PW22/S 15.01.2011 Supplementary statement of accused Deepak.
Ex.PW22/T 15.01.2011 Seizure memo of one blood stained Tshirt, which is got recovered by accused Bhagirath.
Ex.PW22/U 15.01.2011 Seizure memo of helmet, which is also got recovered by accused Bhagirath.
Ex.PW22/V 15.01.2011 Seizure memo of one white colour blood stained Tshirt, which is got recovered by accused Deepak Nanda.
St Vs. Bhagirath and Deepak Nanda 12/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
Ex.PW22/W 15.01.2011 Seizure memo of one leather jacket of black colour, one grey colour pant an a pair of shoes of red and black colour, which are got recovered on the disclosure statement of accused Bhagirath.
Ex.PW22/X 15.01.2011 Seizure memo of one sweater of dark blue colour, one black colour pant and a pair of shoes of sports shoes and socks, which are got recovered on the disclosure statement of accused Deepak Nanda.
Ex.PW22/Y 15.01.2011 Seizure memo of helmet, which is got recovered by the accused Deepak Nanda.
Ex.P3 15.01.2011 PW22 identified the ustra, which is got recovered by accused Bhagirath.
Ex.P4 15.01.2011 PW22 identified the ustra, which is got recovered by accused Deepak.
Ex.P13 15.01.2011 PW22 identified the one Tshirt which is got recovered by accused Deepak.
Ex.P14 15.01.2011 PW22 identified one black pant, full
sleeves sweater, pair of sports shoes,
one hand bag and one pair of socks,
which are got recovered by accused
St Vs. Bhagirath and Deepak Nanda 13/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
Deepak.
Ex.P15 15.01.2011 PW22 identified the helmet, which is
got recovered by the accused Deepak
Nanda.
Ex.P16 15.01.2011 PW22 identified the Tshirt, which is
got recovered by accused Bhagirath.
Ex.P17 15.01.2011 PW22 identified one jacket, jeans
(colly) pant and pair of shoes, which are got
recovered by accused Bhagirath.
P18 15.01.2011 PW22 identified the helmet, which is
got recovered by accused Bhagirath.
Ex.P19 15.01.2011 PW22 identified the one golden
colour necklace, which is got
recovered by accused Bhagirath.
Ex.P20 15.01.2011 PW22 identified the jewlery purse
(Colly) containing pair of ear tops of golden
colour, pair of golden colour ear
rings, one small finger ring, three
pajebs of silver colour and two small
bangles of small children, which are
got recovered by accused Deepak.
Ex.P21 15.01.2011 PW22 identified the motorcycle
bearing registration No. DL 4S A
0745, which is got recovered by
accused Deepak Nanda.
St Vs. Bhagirath and Deepak Nanda 14/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
PW23 : HC Naresh Kumar
Exhibits same as PW22
PW24: Hem Chand
Ex.PW24/A 11.05.2011 Seizure memo of marriage card of Kishore
and bill of mobile phone of Hem Chand.
Ex.PW24/B 11.05.2011 Seizure memo of bill of mobile phone of Hem
Chand.
Ex.PW24/C 11.05.2011 Seizure memo of marriage card of Kishore
and Kanchan.
Ex.P22 11.05.2011 PW24 identified the articles i.e one shawl,
one full sleeve sweater, one blouse, one
brassiere, one woolen pajama, one peticot
and one sari, which were born by the
deceased at the time of incident.
Ex.P23 11.05.2011 PW24 identified one full sleeve Tshirt,
Baniyan, full sleeve sweater, half sleeve
sweater, pajama and underwear, which was
worn by the deceased son at the time of
incident.
Ex.P24 11.05.2011 PW24 identified one shirt, Tshirt, Baniyan,
sweater, half sleeve sweater, pajama and
underwear, which was worn by the another
deceased son at the time of incident.
Mark PW24/DA 06.07.2011 Intimation regarding death of the deceased
Seema, Kunal and Nishant to the inlaws of
PW24 by PW24.
PW24/DA1 06.07.2011 Confronting statement of PW24 where word
locker is not so recorded.
PW25: Dr. Adesh Kumar
Ex.PW25/A 09.08.2011 Report regarding examination of parcels
marked as B11, B21 and B31.
St Vs. Bhagirath and Deepak Nanda 15/105
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PW26: Sh. A.K.Shrivastava
Ex. PW26/A 09.08.2011 Report regarding
examination of 21
parcels.
Ex. PW26/B 09.08.2011 Report regarding
serological examination.
Inadvertently PW27, PW28, PW29 have not been examined.
PW30: Constable Praveen Kumar
Mark PW30/A1 07.07.2011 Photographs of deceased Seema and her
A32 deceased two sons namely Kunal and
Nishant.
Ex. PW30/BB32 08.08.2011 Negatives of the photographs of deceased
Seema and her deceased two sons namely
Kunal and Nishant.
PW31: Inspector Digvijay Singh
Ex.PW31/DA 08.08.2011 Confronted statement
of PW31 where he
stated that he did not
know who and when his
statement was recorded.
PW32: Naresh Kumar
No Exhibits
PW33: Inspector Hoshiyar Singh
Ex.PW33/A 24.02.2012 Site plan of the courtyard where two used
cups and two glasses were kept.
Ex.PW33/B1 to 24.02.2012 Inquest papers for conducting postmortem
PW33/B26 of deceased Seema, Nishant and Kunal.
Ex.PW33/DX 28.03.2012 Report before Hon'ble High Court in
respect of a letter which is already marked
St Vs. Bhagirath and Deepak Nanda 16/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
PW3/C.
Ex.PW33/DX1 28.03.2012 Confronted statement of PW33 with ASI
Khajan Singh where name of constable
Devender is not mentioned.
Ex. PW33/DX2 28.03.2012 Letter containing photocopies of
fingerprints sent to the Director, Finger
Print Bureau.
Ex.PW33/DX3 & 28.03.2012 Statements of Moti Lal.
Ex.PW33/DX4
Ex.PW33/DX5 28.03.2012 Statement of Madhavi.
Ex.PW33/DX6 and 28.04.2012 Letters through which exhibits were sent to
Ex.PW33/DX7 FSL Rohini.
PW34: Shri Retd. ASI/Tech Devender Kumar
Ex.PW34/A 28.04.2012 Report regarding mechanical inspection of
one red coloured Yamaha Motorcycle bearing
No.DL 4SA 0745.
PW35 SI Gyandender Singh
Ex.PW35/A 22.05.2012 Report regarding examination of chance print
Mark Q1 to Q7.
Ex.PW35/B1 to 22.05.2012 Enlarged photographs and description of
Ex.PW35/B3 identical points in respect of examination of
Bhagirath.
Ex.PW35/C1 to 22.05.2012 Enlarged photographs and description of
PW35/C3 identical points in respect of examination of
Deepak @ Deepu.
Ex.PW35/DA 22.05.2012 Copy of search slip.
PW36 HC Rakesh
Ex.PW36/A 18.07.2012 Seizure memo of copy of ration card and
voter I card of accused Bhagirath.
St Vs. Bhagirath and Deepak Nanda 17/105
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Ex.PW36/B 18.07.2012 Seizure memo of copy of ration card and
voter I card of accused Deepak Nanda as well
as of death certificate of Sh. Durga Dass
Nanda, granfather of accused Deepak Nanda
7. PW1 Sh. Sumit Kumar deposed that in the year 2009, he alongwith his family was residing at B42, Ground Floor, School Road, Uttam Nagar, New Delhi. Sh. Hem Chand alongwith his family comprising of his two sons and wife was residing at the first floor of the house. On 9.1.2009, he was present at his house. At about 1.45 PM, when he was going to bath room, he saw one person wearing black colour pant at the first floor, he thought that he might be Hem Chand and thereafter, he went to bathroom. At about 10.30 PM someone pushed door bell of his back side door, his father asked his brother Amit Kumar to open the door who opened the door. Hem Chand came inside and went to his portion at first floor. Hem Chand started crying upon which his father went on the first floor. His father came back and told him that the wife and children of Hem Chand are lying dead.
8. PW2 is Sh. Amit Kumar, who had stated that on 9.1.2009, he had seen deceased Smt. Seema while washing the utensils at first floor. During cross examination he deposed that he has never visited the house of Hem Chand after the incident.
9. PW3 Sh. Moti Lal is father of the deceased Seema. He deposed that deceased Seema was his daughter who was married with Sh. Hem Chand St Vs. Bhagirath and Deepak Nanda 18/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda in the year 2000. After marriage she was blessed with two sons namely Kunal and Nishant. In the year 2009, she was residing with her husband, two sons at B42, First floor, School Road, Uttam Nagar, New Delhi. On 9.1.2009 at about 10:1510:30 pm, Hem Chand informed him on telephone that his daughter Seema and both the children have been murdered at his house by slitting their throats. He alongwith his family members immediately reached at the spot. Police and many public persons were found there. In the same night, the dead bodies of his daughter and her children were shown to him in DDU Hospital. He identified their dead bodies before the police. His statement Ex. PW3/A was recorded. On 10.01.2009, the dead bodies were handed over to him by the police after postmortem vide receipts Ex.PW3/B to D. Initially he has doubted his son in law but subsequently he thought that someone from the family might have committed this crime. He was satisfied with the investigation carried out by the police. On 1.2.2009, he joined the investigation with the police and during investigation, Hem Chand in his presence told to the police that the items i.e. one gold necklace, gold jhumke (balies), one gold ring, one pair paajeb (silver) of Seema and two bangles (karas) of the child, were missing from his house. Hem Chand checked the aforesaid articles in his presence. On 3.3.2009, he was called at Dwarka Courts for TIP of the case property, where he identified the same. He identified his signatures on TIP proceedings as Ex.PW3/E. He has identified two silver bangles (kara), one pair of golden Jhumkas, one pair of golden ear rings (bali), three silver pajebs and one ring of gold which belong to his daughter except the silver bangles (karas) which were belonging to Kunal and were identified by him in TIP and proved the St Vs. Bhagirath and Deepak Nanda 19/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda same collectively as Ex.P1. A necklace of gold Ex.P2 was shown to the witness who correctly identified the same belonging to his daughter and identified by him in TIP.
10.PW4 HC Ram Phal deposed that on 10.1.2009, 6.2.2009 and 8.2.2009 he was working as MHC( M) at PS Binda Pur. On those dates, the pulandas deposited in this case were transacted and the relevant entries are Ex.PW4/A (collectively) containing the copies of road certificates vide which the pulandas were sent to FSL and the receipt thereof. The sames were taken by HC Naresh Kumar. Till the samples were transacted in his presence, the same were not tampered with.
11.PW5 SI Mahesh Kumar, draftsman from Crime Branch, PHQ, New Delhi deposed that on 27.1.2009 he alongwith Inspector Digvijay Singh visited the place of occurrence at first floor of house No. B42, School Road, Uttam Nagar, New Delhi. He took the measurements of the spot and prepared rough notes at the instance of Inspector Digvijay Singh. He prepared scaled site plan Ex.PW5/A on 19.2.2009.
12.PW6 Dr. B.N.Mishra, Medical Officer, Department of Forensic Medicine, DDU Hospital, Delhi has deposed that on 10.1.2009 he conducted the postmortem on the dead body of deceased Seema, aged 33 years. He proved his detailed postmortem report Ex.PW6/A. The cause of death, in his opinion, was asphyxia caused by cutting of trachea and large blood vessels of neck by sharp edge weapon like knife. Manner of death was homicidal. The injuries were sufficient to cause death in ordinary course St Vs. Bhagirath and Deepak Nanda 20/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda of nature. Time since death was one day prior to postmortem examination. The clothes, viscera and blood of deceased were sealed and handed over to the IO in sealed condition with the seal of hospital alongwith sample seal. On 31.3.2009, the IO moved an application for seeking subsequent opinion and the opinion given by him regarding injury No.1 is Ex.PW6/B.
13.PW7 Ct. Devender, member of Crime Team has deposed that on 9.1.2009, on the requisition of local police, he alongwith Incharge Crime Team ASI Khajan Singh, Praveen Kumar, a Photographer and Driver HC Ishwar Singh reached the spot i.e at first floor H.No. B42, School Road, Uttam Naar, New Delhi. At the spot, dead body of a lady and two children were lying in the pool of blood. The scene of crime was inspected by the crime team. He lifted two chance prints from a glass, two chance prints from cup of tea and three chance prints from dressing table glass and prepared his report Ex.PW7/A.
14. PW8 ASI Khajan Singh is Incharge of Mobile Crime team who has corroborated the version of PW7 Ct. Devinder. He further proved his detailed death report Ex.PW8/A.
15.PW9 Sh. Sumedh Kumar Sethi, MM, Dwarka Courts, New Delhi, who has deposed that on 30.3.2009 he has conducted the Test Identification Parade proceedings in respect of case property on the application Ex. PW9/B of the IO which was marked to him by the Ld. Link MM. The Test Identification Parade proceedings are ExPW3/A which bears his St Vs. Bhagirath and Deepak Nanda 21/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda signature at point B on each page. IO filed an application Ex. PW9/A for collecting the copy of proceedings. The copy of proceedings were given to him.
16.PW10 SI Shanti Prakash has deposed that on 9.1.2009 he was posted as duty officer at PS Bindapur from 5.00 PM to 1.30 AM. On that day at about10.49 PM on receipt of wireless message from Control Room he recorded DD No.31A (Ex.PW10/A) which was handed over to ASI Lakh Ram for inquiry. On the same day at about 12.45 AM night, he recorded FIR No. 07/09 ( Ex.PW10/C) U/s. 302 IPC on the basis of rukka sent by ASI Lakh Ram through Const. Vishram and handed over the rukka and copy of FIR to said constable. He also put his endorsement at point A on Ex.PW10/B. He also handed over the special report to messenger for being transmitted to higher officers.
17.PW11 HC Ashok Kumar has deposed that on the intervening night of 9/10.1.2009 at about 1.30 AM duty officer handed over SI Shanti Prakash handed over him three envelopes containing special report to be delivered at the residences of Illaka MM, DCP (South West) and Joint CP (Southern Range) and accordingly delivered the same on government motorcycle bearing registration No. DL 1SN 5581.
18.PW12 Smt. Kanchan wife of Sh. Satish Kumar has deposed that in the year 2009, she alongwith her family was residing at B42, Ground Floor, School Road, Uttam Nagar, Delhi and one Hem Chand alongwith his two sons aged about 7 and 4 years and his wife, Seema was residing on the St Vs. Bhagirath and Deepak Nanda 22/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda first floor as a tenant. On 9.1.2009 she was present at her home. She saw that deceased Seema brought her both the said sons from school at around 1.00 PM. After about an hour, when she was in her kitchen, she heard some noise of falling of an object in the portion of Seema and also noticed that the said object after falling down 23 steps in the stair case was lifted by someone and she heard that noise. Thereafter, she slept and woke up at around 4/5.00 PM and saw that the rear door of Seema's house was opened. She bolted the same. At about 10.30 PM, Sh. Hem Chand returned and he repeatedly rang the bell but no one opened the door. Thereafter, her husband asked her son Amit to go and open the door. Thereafter, he saw that the husband of deceased cried and then her husband alongwith her son went to see what happened. They informed the police. They got watter supply at 6.00 PM. Seema alongwith her used to fill water at that time. Hem Chand used to park scooter outside on the road tied with a chain. On the date of occurrence, she did not hear any sound of taking away that scooter, which she usually used to hear whenever he used to remove scooter from there.
19.PW13 Sh. Satish Kumar is husband of PW12 Smt. Kanchan who has deposed on the lines of PW12 Smt. Kanchan.
20.PW14 Sh. Rajiv has deposed that he run a factory of Stationary items at 1413/1A, Laxman Vihar, PhaseI, Gurgaon. He knows Hem Chand for the last one and two years, prior to the occurrence as he was working with the concern from which they were getting their patent printing work done. They used to call Hem Chand whenever they had worked for him.
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On 08.01.2009, they had called Hem Chand for the next day and he came the next day between 1.30 PM - 2.00 PM. On that day, they had talked to him in the morning also. Vijay Pratap Singh was employee of their factory. On 09.01.2009, Hem Chand remained with them upto 8.00 PM - 8.15 PM. He did not leave in between.
21.PW15 Sh. Vijay Pratap Singh has deposed that in the month of January 2009, he was working in the factory of Sh. Rajiv i.e PW14 at Laxman Vihar, Gurgaon. He knows Hem Chand who used to visit their factory to do the job work. On 9.1.2009 at 1:30 pm, Hem Chand came to their factory and remained there upto 8.00 PM. He did not leave anywhere in between. He was also present there throughout. Sh. Rajiv came to the factory at about 5.00 PM. Hemchand left with one Vijay in a car for railway station on that day at about 8.00 PM.
22.PW16 Dr. Komal Singh, HOD, Forensic Medicines, DDU Hospital,New Delhi deposed that on 10.1.2009 she has conducted the postmortem of the dead bodies of deceased Nishant male, aged about 4 years and deceased Kunal, aged about 7 years. She has proved the postmortem reports Ex.PW16/A and Ex.PW16/B respectively. In case of deceased Nishant, the cause of death was hemorrhagic shock subsequent to cut throat and this injury was sufficient to cause death in ordinary course of nature. In case of deceased Kunal, the cause of death was hemorrhagic shock subsequent to cut throat and this injury was sufficient to cause death in ordinary course of nature. Both Ustra (razor) were shown to the witness who opined that the cut throat injuries mentioned in St Vs. Bhagirath and Deepak Nanda 24/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda postmortem report in both cases could be possible by these weapons like ustras Ex.P3 and P4.
23.PW17 Sh. Neeraj Bidani, UDC from Women and Child Development, 1 Canning Road Kasturba Gandhi Marg, New Delhi has deposed that on 21.4.2009 he was posted as UDC, Janakpuri Transport Authority. On that day on request of IO he has furnished the computerized information contained in Ex.PW1/7A as per record.
24.PW18 Head. Ct. Vishram Singh has deposed that on 9.1.2009, on receipt of DD No.31A, he alongwith ASI Lakh Singh went to B42, School Road, Uttam Nagar. They reached the first floor of the above said house. They saw a dead body of one lady lying on the floor of the room in a pool of blood. On the bed, two dead bodies of boys aged about four years and seven years were also lying in a pool of blood. One person Hem Chand was also present there, who disclosed that he is the husband of deceased Seema and the names of his sons are Kunal and Nishant. PW19 ASI Lakh Ram called the Crime team and prepared the rukka on the basis of DD No.31A and handed over to him for the registration of the case. He went to PS Bindapur and got the case registered and returned back to the spot with a copy of FIR and original rukka and same were handed over to Inspector Hoshiyar Singh, SHO, PS, Bindapur. Crime Team also reached at the spot and inspected the spot. Photographs were taken. The dead bodies were kept in a separate dead body bag. The blood which was lying on the floor was lifted with the help of gauze piece and kept in a small plastic box and sealed with the seal of 'LR' and taken into possession St Vs. Bhagirath and Deepak Nanda 25/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda vide seizure memo Ex. PW18/A. Bed sheet and sweater of a child, which were lying on the bed with blood stains, were kept in a white polythene and sealed with the seal of 'LR' and taken into possession vide seizure memo Ex.PW18/B. The blood stained dressing table cloth, quilt cover, one small jewellery box which was also blood stained, were seized and sealed with the seal of 'LR'. Ouilt cover, dressing table cloth, jewellery box were taken into possession vide seizure memos Ex.PW18/C and Ex.PW 18/D and Ex. PW18/E respectively. The earth control i.e. floor of the room without blood and with blood were also lifted and seized and taken into possession vide memos Ex.PW18/F and Ex.PW18/G respectively. Two glasses which were lying in front of the room were also kept in a pullanda and sealed with the seal of LR and taken into possession vide seizure memo Ex.PW18/H. The dressing table was also seized vide seizure memo Ex.PW18/J. The two tea cups which were also lying in front of the room was also kept in a pulanda and sealed with the seal of LR and was taken into possession vide seizure memo Ex.PW18/K. All the three dead bodies were taken to DDU Hospital by him for conducting the postmortem and he remained in the Mortuary till 10.00 AM of the next morning for the protection of dead bodies. Thereafter IO also reached in the DDU Hospital where dead bodies of Kunal, Seema and Nishant were identified and IO conducted the inquest proceedings and got conducted the postmortems on the dead bodies of above said deceased persons.
25.The dead bodies of Kunal, Seema and Nishant were handed over to Sh. Moti Lal, the father of deceased after postmortem. Doctor handed over the viscera, blood gauze and sample seal, of deceased Nishant, Kunal and St Vs. Bhagirath and Deepak Nanda 26/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Seema and same were taken into possession vide seizure memo Ex.PW18/L, PW18/M and PW18/N respectively. They came back to Police station alongwith exhibits and same were deposited with MHC(M). His statement was recorded by the IO. He has identified the case property lifted from the spot i.e. jewellery box, bedsheet, sweater, curtain, quilt, two glasses, two tea cups and dressing table and proved all the articles as Ex.P5 to Ex.P12 respectively.
26. In cross examination, PW18 has stated that he was present with PW19, ASI, Lakh Ram in the police station when DD No.31 A was received and he alongwith ASI Lakh Ram on his two wheeler/ bike went to the spot. Hem Chand was standing outside the room when he reached there and clothes of Hem Chand were not stained with blood and he went to the police station for registration of the case on scooter of ASI Lakh Ram and official of crime team had arrived before he took the rukka and no inquiry was made in his presence from PW24 Hem Chand. He did not remember as to where was Hem Chand when ASI Lakh Ram was recording rukka. The lady residing at the first floor of the said house might have come at the first floor i.e scene of crime when the rukka was written but he did not remember whether any inquiry was made from the said lady by the I.O. He did not know whether IO had recorded statement of Crime team official or not but all the seizure memos were written by IO Inspector Hoshiyar Singh in his presence and the exhibits were sealed by ASI Lakh Ram. He is not sure as to whether Ex.PW18/C and Ex.PW18/K were prepared by the same person. He did not remember what proceedings were conducted by St Vs. Bhagirath and Deepak Nanda 27/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda the IO/SHO Hoshiyar Singh after his coming from the police station with rukka. ASI Lakh Ram did not conduct any proceedings in his presence after his return from Police Station but SHO/IO was preparing site plan when he came back from the police station. IO did not record any statement of the witness in his presence and his statement was recorded by the SHO in the police station in the evening.
27.PW19, ASI, Lakh Ram had accompanied the spot with PW18 Ct. Vishram on receipt of DD No.31A, hence he deposed on the same lines to that of PW18 Ct. Vishram and, inter alia, proved the rukka as Ex.PW19/A. Crime team reached the spot and inspected the same. Photographs were taken. Fingers prints were lifted from inside the room and outside the room and Ct. Vishram went to PS Bindapur for registration of FIR, in the meanwhile SHO Inspr. Hoshiyar Singh alongwith his staff reached the spot, while crime team was inspecting the spot. SHO enquired from Hem Chand and asked him whether any belongings, which were not belonging to him may be traced out, accordingly, Hem Chand told the SHO that helmet, which was kept on the table did not belong to him. On seeing the cups, Hem Chand also informed that tea might have been prepared two times, as usually his family used to take tea in steel glasses and the cups were used to serve the tea for guests only. In the meanwhile, Ct Vishram came at the spot alongwith copy of FIR and original rukka and same were handed over to IO/Inspector Hoshiyar Singh. When senior officers reached the spot, the almirah was got opened and it was found blood stained from inside and Hem Chand told them that he would disclose the articles later on, as he was in shocked condition at that time. On St Vs. Bhagirath and Deepak Nanda 28/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda seeing the shocked condition of Hem Chand, he did not record his statement for the registration of FIR that is why he made endorsement on the DD entry for registration of FIR. He proved the documents already exhibited as Ex.PW18/A to Ex.PW18/N. On the next morning, he alongwith IO, reached DDU Hospital where dead bodies of Kunal, Seema and Nishant were identified and IO conducted the inquest proceedings and got conducted the postmortems on the dead bodies of above said deceased persons. After postmortem the dead bodies of Kunal, Seema and Nishant were handed over to Sh. Moti Lal, father of deceased Seema vide receipts Ex.PW3/B to Ex.PW3/D. He also identified the case property i.e. jewellery box, bed sheet, sweater, curtain, quilt, two glasses, two tea cups and dressing table and proved all the articles as Ex.P5 to Ex.P12 respectively.
28. In cross examination, he has stated that his statement was recorded by the IO on 10.1.2009 and on 9.4.09 and FIR was not registered on the statement of Hem Chand as Hem Chand was a suspect in that case. He admitted that he had mentioned in his statement dt. 9.4.09 before IO that it appeared from the spot that Hem Chand is involved in the Crime. He made inquiry from the persons, residing at ground floor and then proceeded to the first floor and no public person met them at first floor when they reached there and he summoned the crime team by using his mobile phone. However, IO did the writing work but he cannot tell the nature of writing work done by the IO during that period and all the seizures and seizure memos were prepared by the SHO after arrival of Constable Vishram with FIR. IO /SHO made St Vs. Bhagirath and Deepak Nanda 29/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda inquiry from Hem Chand. He did not remember whether statement of Hem Chand was recorded by the I.O or not but statement of residents of ground floor were recorded. He left the spot after removal of dead bodies but he did not remember the time. The room at the spot of incident, where dead bodies were recovered, was locked after completion of investigation by the IO and keys of the lock were kept by the IO. He did not remember whether the keys were seized or not. He did not remember whether IO recorded statements of crime team officials or not . Crime team Incharge had handed over his report to the IO. Report was prepared by Incharge Crime team only . The cups and glasses were lying outside the room in an open courtyard and some cups were lying in the bowl (patila) and some cups were lying on the ground and the residue of tea was present in the bowl (patila). Photographs of the cups were taken by the crime team. IO had taken those cups in his possession but did not seal those cups. He did not remember as to how those cups and glasses were taken from the spot by the IO but the same were deposited in malkhana after preparing memo. He cannot identify the handwriting on Ex.PW18/K as well as on other memos. Ex. PW18/A was prepared by the IO. All the seizure memos were prepared by the IO in his presence but he cannot identify the handwriting of IO and he is not sure who had written Ex.PW18/K or Ex. PW18/G and other documents. He further denied the suggestion that he is unable to identify the handwriting on Ex.PW18/K and Ex. PW18/G as the same were not prepared in his presence. The cups and glasses were not sealed when they were deposited in mal khana and they were in open condition. The almirah in the room might have been opened by St Vs. Bhagirath and Deepak Nanda 30/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda the Crime Team on night intervening on 9/10.1.2009. He further stated that he did not remember whether the almirah was got opened with the key or without key and the exhibits were firstly sealed and thereafter, its seizure memos were prepared and he signed the same alongwith Constable Vishram.
29.PW20 H. Ct. Vikram has deposed that on 9.1.2009 he was posted at PCR Control Room, on that day at about 10.35 PM he received a message from phone No. 9871833600 regarding the murder of one lady and two children at House No. B42, School Road, near Post office, Uttam Nagar. Accordingly, he sent the message to PS Uttam Nagar and concerned officers. He proved the computerized PCR form as Ex.PW20/A.
30.PW21 Ct. Ravinder Kumar has deposed that in the month of Feburary of year 2009, SHO handed over him parcha 12 information sheet of accused Bhagirath and accused Deepak Nanda to get it verified and he went to the houses of both accused persons at E313/82, Tulsi Nagar, Inder Lok, Delhi and H.No. 313/83, Tulsi Nagar, Inder Lok, Delhi and handed over his report to MHC ( R) PS Sarai Rohilla. He proved his report as Ex.PW21/A and Ex.PW21/B.
31.PW22 ASI Tej Singh has deposed that on 6.2.2009 at about 4.15 PM, SHO, PS, Binda Pur, Insp. Hoshyar Singh told them that he received an information through secret informer that the wanted person in this case namely Bhagirath and his associate Deepak would leave Delhi for St Vs. Bhagirath and Deepak Nanda 31/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Rajasthan from Dhaula Kaun Bus Stand, if raided, they can be apprehended. This information was reduced into writing by SHO vide DD no.25A. Thereafter, he alongwith Inspr. Hoshiyar Singh, driver Rajender, Operator Ct. Basant and HC Naresh left the PS in a Government vehicle and reached Dhaula kaun alongwith secret informer. IO briefed them and they took the position. Thereafter, at about 5.30 PM on the pointing out of secret informer, two persons who were standing on the pavement at Dhaula Kaun were apprehended and they disclosed their names as Bhagirath and Deepak. PW22 identified them in court correctly. Both the accused were interrogated separately and they confessed their guilt/involvement in the incident at B42, School Road, Uttam Nagar on 9.1.2009. Thereafter the IO recorded the disclosure statements of both the accused persons. The disclosure statement of accused Deepak has been proved as Ex.PW22/A and the disclosure statement of accused Bhagirath has been proved as Ex.PW22/B. Accused Bhagirath and Deepak were arrested vide arrest memo Ex.PW22/C and Ex.PW22/D respectively. Their personal search were conducted vide memos Ex.PW22/E and Ex.PW22/F respectively and as per the disclosure statements of accused persons, they left Dhaula Kaun and proceeded further for further investigation and reached at B42, First Floor, School Road, Uttam Nagar where both the accused separately pointed out the place of occurrence and on their pointing out, pointing out memos of place of occurrence were prepared at the instance of accused Bhagirath and Deepak as Ex.PW22/G and Ex.PW22/H respectively.
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32. Thereafter, as per their disclosure statement both the accused persons led the police party to an open park at KBlock, Mohan Garden. They pointed out one open plot and told them that the 'Ustras' (razor) which were used in the commission of the offence had been thrown in the said open plot and they can get recovered the said weapons. Accordingly, the accused persons started searching weapon of offence. Accused Bhagirath got recovered one 'Ustra' towards the south side wall, 10ft. ahead from garbage. The IO prepared the sketch of 'Ustra' (Ex. PW22/J). The 'ustra' was having blood stains. The same was kept in a white colour cloth and pulanda was prepared and sealed with the seal of TS. The pulanda was taken into possession vide seizure memo Ex.PW22/K. Accused Deepak also got recovered one 'ustra' towards the South side wall from garbage. The IO prepared the sketch of the said Ustra (Ex. PW22/L). The 'Ustra' was having the blood stains and same was seized vide seizure memo Ex.PW22/M. Thereafter, as per the disclosure statement accused Bhagirath led the investigating party to his house at 313/83, Tulsi Nagar, Jakhira, Delhi. They entered into the first floor of the house where accused opened one iron box and took out one gold/golden colour necklace and he told them that he received the said necklace alongwith a sum of Rs. 1500/ as his share from the looted articles on the day of incident. The necklace was kept in a white colour cloth, prepared pullanda and sealed with the seal of TS and the pullanda was taken into possession vide seizure memo Ex.PW22/N. Accused was also interrogated for the recovery of clothes but he could not produce the said clothes.
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33.Thereafter accused Deepak led police party to his house at 313/82, Tulsi Nagar, Jakhira, Delhi. He led them to the first floor of the house where one Godrej Almira was lying just entering to the room and he opened the same and he took out one jewellery purse of red colour and from the said purse, he took out one pair of gold ear tops, one pair of golden colour ear rings, one golden colour finger ring, three pajeb of silver colour and two silver colour bangles of small children. All the articles alongwith jewellery purse were seized vide seizure memo Ex.PW22/P. Accused Deepak was interrogated regarding the recovery of clothes which he had worn at the time of incident but all in vain as accused told them that he had thrown the said clothes in Ganda Nala, Ram Pura. After coming out from the house of accused Deepak on the ground floor, accused pointed out towards one motorcycle bearing No. 0745 and told them that both the accused had gone to the house of deceased on the day of incident on the said motorcycle and came back on the same motorcycle after the commission of offence. The said motorcycle was taken into possession vide seizure memo Ex.PW22/Q. Thereafter all of them alongwith accused persons came at PS and after medical examination of the accused persons, accused persons were sent to lock up and case property was deposited with MHC (M) and thereafter IO recorded his statement in this regard.
34. PW22 on 7.2.2009 alongwith PW23, HC Naresh again joined the investigation with IO in the present case and, thereafter, accused persons were taken out from Lockup. They were again separately interrogated for the recovery of clothes. They disclosed that yesterday St Vs. Bhagirath and Deepak Nanda 34/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda they did not disclose the same due to fear. Thereafter, both the accused again made supplementary disclosure statements and told them that they can got recovered the clothes which they had worn on the day of incident. IO recorded the supplementary disclosure statements of accused persons as Ex.PW22/R and Ex.PW22/S respectively. thereafter both the accused persons were produced before the concerned court and both the accused were remanded for two days PC remand. Thereafter they came back at PS and accused persons were sent to lock up and his statement was recorded by the IO in this regard.
35.On 8.2.2009 PW22 alongwith HC Naresh again joined the investigation of the present case with IO/Insp. Hoshiyar Singh. Thereafter, accused persons were taken out from the lockup and they left the PS in a government vehicle. Accused Deepak and Bhagirath led them to Hathora Ram Park, Lawrence Road and as per the supplementary disclosure of accused Bhagirath, he got recovered one blood stained Tshirt, which he had worn at the time of incident which was seized vide seizure memo Ex.PW22/T. Accused Bhagirath also got recovered one black colour helmet from the same park, which belonged to PW24 Hem Chand, which he had taken from the house on the day of incident. The said helmet was also seized vide seizure memo Ex.PW22/U. Thereafter accused Deepak got recovered one white colour blood stained Tshirt from the bushes near the wall which he had worn at the time of incident. The said T shirt was seized vide seizure memo Ex.PW22/V. Thereafter as per the disclosure of accused persons, accused Bhagirath again led them to his house on the ground floor where from one big iron box he took out St Vs. Bhagirath and Deepak Nanda 35/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda one polythene. The same was checked and found containing one leather jacket of black colour and one grey colour pant and a pair of shoes of red and black colour. The said clothes and shoes were checked and found blood stains on them and same were seized vide seizure memo Ex.PW22/W. Thereafter as per his disclosure, accused Deepak again led them to his house on the second floor where from one bed, he got recovered one plastic polythene/bag. The same was checked and found containing one blood stained sweater of dark blue colour and one blood stained black colour pant and a pair of sports shoes and socks which were sealed with the seal of TS and seized vide seizure memo Ex.PW22/X. Accused Deepak also got recovered one helmet from his house which he had worn on the day of incident and same was taken into possession vide seizure memo Ex.PW22/Y. He correctly identified the case property shown to him.
36. In cross examination, PW22 ASI Tej Singh has stated that on 8.2.2009 at about 12 noon they reached Hathora Park and found present 2530 public persons there. He cannot tell distance between Hathora Park and police station Keshav Puram as he was never posted in North West District. Police party went inside the park from Eastern side gate which is middle of the park. He further denied the suggestion that there is a shopping mall in front of the gate of the Hathora park and there was a boundary wall in the park and fencing was there on the wall around the park. He could not tell whether any person can enter in the park without passing through the gates. He admitted that some gardeners and gate keepers were there who were roaming in the park but police St Vs. Bhagirath and Deepak Nanda 36/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda party did not make any entry on the note book of the gatekeeper. The accused persons also went inside the park when T shirt was got recovered by accused Deepak, it was in a polythene. He cannot tell whether I.O called any gardener or security guard as they were not called in his presence. T shirt of accused Deepak was having blood stains from the front side. Said T shirt was of white colour having half sleeve and pullanda of T Shirt was stitched by HC Naresh and seal was with HC Naresh Kumar during whole proceeding. His statement was recorded by H C Naresh on the dictation of IO and statement of H C Naresh was written by himself on the dictation of I.O. Ex.PW22/V is in handwriting of PW23 HC Naresh and IO had signed the same. IO did not record any other statement in his presence apart from his statement and statement of HC Naresh in the handwriting of PW23 HC Naresh.
37. The house of accused Deepak in Tulsi Nagar was built up to four storied. There are houses on both the sides adjacent to the house of accused Deepa. Some public persons were gathered at the house of accused Deepak and police did not note down names and addresses of any person. His incomplete statement was recorded at Hathora Ram Park, which was completed in the house of accused Deepak by HC Naresh. They had gone to the second floor of the house of accused. IO did not obtain the signatures of wife of accused and other members on any document nor recorded any statement. The sweater got recovered by accused Deepak was of full sleeves. One pant was also got recovered by accused Deepak. The sweater was having blood stains just below the chest of the sweater and was having blood stains on both the sleeves.
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FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
All pullandas were stitched by HC Naresh and seizure memos were
prepared and PW22 put his seal on the pullandas and handed over the same to PW23, HC Naresh and case property was deposited with MHC(M) by the IO at about 34 p.m .
38. Regarding the investigation conducted on 6.2.2009, PW22 has stated that police party reached Dhaula Kuan in Government gypsy at 5.30 p.m and the place from where the accused persons were arrested, there was no shop but 5060 people were standing there. The disclosure statement of accused was recorded there by PW33, Inspector, Hoshiyar Singh Yadav while sitting in the gypsy. Police party reached Uttam Nagar after about one hour. The key of the room was with the police party and no body was there in the house / spot of incident except I.O. Pointing out memos of accused was prepared either by PW22 or PW23, HC Naresh. PW23 did not prepare any site plan of any place in this case. Police party reached Mohan Garden inside the lane connected to main road and people were passing through the said road. The razor was located at a distance of 810 ft. away from the place where gypsy was parked by the police party. Blood was found present on the handle of the razor as well as on the blade. Both the razors were identical except some variations in their seize. PW23 prepared sketch of the razors while using bonnet of the gypsy whereas, PW22 put seal and memos were prepared either by him ( PW22) or PW23 H C Naresh. PW23 H C Naresh prepared Ex.PW22/D at Dhaula Kuan and from Mohan garden the police party proceeded towards the house of accused persons . The almirah was opened by wife of accused Deepak St Vs. Bhagirath and Deepak Nanda 38/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda and 45 persons were collected there. Recovery memos were prepared on 6.2.009 at the house of accused persons either by PW22 or by H C Naresh and he could not say whether jewellery and purse were stained with blood or not. The second disclosure was recorded in the morning of 7.2.09 by SHO between 910 a.m in police station and on that day, they had not gone to effect any recovery.
39.PW23 HC Naresh Kumar being the member of the investigation team alongwith PW22 ASI Tej Singh and IO/Inspector, Hoshiyar Singh, hence he deposed on the same lines to that of PW22 ASI Tej Singh and, inter alia, he has stated that on the pointing out of secret informer, two persons who were standing on the pavement were apprehended who disclosed their names as Bhagirath and Deepak . Both the accused were interrogated and confessed their guilt in the incident on 9.1.2009. Thereafter, IO recorded disclosure statement of the accused persons and they also pointed out place of occurrence. The accused led the police party at K Block, Mohan Garden and pointed out one open plot and got recovered the said weapons. Thereafter, accused Bhagirath led the investigating party to his house at Tulsi Nagar, Jakhira and from first floor of the house, accused Bhagirath opened one iron box and took out one gold/ golden colour necklace alongwith Rs. 1500/ which he had looted from the house of victim. Thereafter, accused Deepak led the police party to his house and got recovered one pair of gold ear tops, one pair of golden colour ear ring, one golden colour finger ring, three pajeb (anklets) of silver colour and two silver colour bangles from one Godrej almirah. Accused persons made supplementary disclosure St Vs. Bhagirath and Deepak Nanda 39/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda statements on 08.2.09, he alongwith ASI Tej Singh again joined investigation with IO/PW33 and accused persons led the police party to Hathora Ram Park and accused Bhagirath got recovered blood stained T shirt from bushes of the park also got recovered one black colour helmet. Thereafter, accused Deepak also got recovered one white colour T shirt. Both accused, thereafter, got recovered blood stained clothes from their respective houses.
40. In cross, he stated that the accused persons were in police custody of H C Yad Ram and one Constable when they reached at Hathora Ram Park on 08.02.2009 at about 12 noon and on one side of Hathora Ram Park, there is residential area. He has admitted that there was a shopping mall near the park. The park was having a boundary wall of about 34 ft and there was an iron grill over the wall. He cannot say whether any person can enter in the park without passing through the gate. No public persons came near the police party during their stay at the park. IO asked the public persons to join the investigation but none agreed. Public persons were closed to him. SHO prepared the arrest memo Ex.PW22/D and all the signatures were put at the spot. Both razors were recovered from open plot with boundary. Memos were prepared by the IO and he cannot say apart from the IO, any other person recorded the statement or prepared any memo. He did not remember who prepared sketch of the razors, got recovered at the instance of accused persons. The pullandas were stitched by him but he did not remember who prepared recovery memos. He did not remember who sealed the pullandas and he did not remember who St Vs. Bhagirath and Deepak Nanda 40/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda prepared the memos. The sweater recovered at the instance of accused Deepak was of full sleeves and seal after use was given to him. He did not remember who stitched the parcel. No statement was recorded of any witness in the park . Seizure memo was prepared in Hathora Ram Park . PW22 ASI Tej Singh prepared the seizure memo but clarified that he prepared those memos on the direction of IO and he did not remember whether IO prepared any document in the park or not.
41.He further stated that except seizure memo, he did not remember whether he had prepared any other document or not in the park . Pullanda was sealed on the directions of the IO in the park. PW23 also prepared the seizure memo while sitting on the chair. Ex.PW22/C and Ex.PW22/D are not in the handwriting of PW23 and Ex.PW22/V, Ex.PW22/X and Ex. PW22/Y are in his handwriting. He could not tell in whose handwriting Ex.PW22/A was prepared. ASI Tej Singh prepared sketch Ex.PW22/J. The disclosure statement was recorded at a bench available there. He did not remember whether Inspector Hoshiyar Singh prepared any document in his presence during the aforesaid dates of investigation. He could not identify the handwriting of Inspector Hoshiyar Singh . Ex.PW18/F was not prepared in the handwriting of SHO / PW33 and he cannot say about Ex.PW18/K that in whose handwriting the said document was prepared.
42. He further admitted that at Dhaula Kuan on 6.2.09 about 30 passengers were present at the spot and he has not asked any public persons regarding their names and addresses. However, IO requested St Vs. Bhagirath and Deepak Nanda 41/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda public persons to join the investigation. On 6.2.09 police party went to the spot of incident alongwith accused and IO inquired from the inhabitant of the ground floor of the said house but he cannot tell whether IO recorded their statement or not. The gate of the stair case of the first floor of the house where murders were committed was found locked but he did not remember who had opened the door but it was opened with the keys of the lock. He did not remember whether public persons were called at the first floor or not. The pointing out memo was prepared by PW23 on the dictation of I.O on the spot of incident on 6.2.09. The plot from where Ustras were got recovered was open plot and there was no construction and no security guard was present there. The gate was not got opened as it was locked from inside and writing work was done outside the plot in the light of gypsy while sitting on a bench outside the school.
43.He did not remember whether any public witness from the said houses were called to join the investigation or not. Seal was put by ASI Tej Singh on the seizure memo and after use seal was handed over to him which he had returned to ASI Tej Singh after proceedings was over. He had gone alongwith IO to deposit the case property with MHC(M) in the evening time when the case property was deposited in malkhana, seal was with him and seal was not deposited.
44. He further stated that he did not remember whether ASI Tej Singh prepared any such document in his presence. He did not record statement of anyone at the house of accused Deepak and motorcycle St Vs. Bhagirath and Deepak Nanda 42/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda seized in this case was also deposited with MHC(M) but he did not remember who had taken the same from house of accused to PS. He did not remember as to who had lifted the said motorcycle from the house of accused to police station.
45.PW24, Hem Chand husband of deceased Seema and father of both his minor deceased sons has deposed that in the year 2009 he was residing at B42, School Road, New Delhi alongwith his wife Seema and his two sons viz. Kunal and Nishant. On 9.1.2009 at about 10:1510:30 am, he left his house by leaving behind his wife as his sons had already gone to school. He went to Gurgaon. He was working as a Computer Designer. On that day at about 10.30 PM when he came back to his house, he rang the doorbell 34 times of his house from ground floor but his wife did not come down. He knocked the bolt of the ground floor and, thereafter, the son of the landlord, who was residing on the ground floor, had opened the main gate. He went up stairs and saw the main door of his house is lying open and the door of inside room was bolted from outside. He opened the bolt and saw his wife was lying on the floor of room, in front of Almirah, in a pool of blood and his sons were also lying on bed in a pool of blood. All the three were having deep sharp injuries on their necks and other parts of body. He raised an alarm and started weeping. On hearing his noise Satish Kumar, who was also residing in the ground floor came to his room. He told him to call a police at 100 number as his condition was not stable after seeing the dead bodies of his wife and children. Satish Kumar made a call at 100 number from his phone whose number was 9871833600.
St Vs. Bhagirath and Deepak Nanda 43/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
46.Police reached the spot and inquired from the public and also made inquiries from him and asked to check the article in his house. He was not feeling well due to aforesaid incidents so did not check the articles but found that the helmet which was kept on the table was missing as on that day he had not taken his scooter to Gurgaon. He checked the court yard (Angaan) and found lying the utensils used for preparation of tea and he found tea was prepared two times as used tea cups were lying there and cups were taken out only for guest. He had taken tea in the glass in the morning. Besides the said two cups there were two glasses of glass. Since he was shocked the other things in the house he checked only on 1.2.2009. On the next day of occurrence he was called in DDU hospital where the dead body of his wife and his children were got identified. After the postmortem the dead bodies were handed over to his fatherin law, Sh. Moti Lal. On 1.2.2009 he received a telephonic call from Inspector Dig Vijay Singh from PS Binda Pur. He was called at PS and he went to police station and from there they came back to his house at B42, School Road, Uttam Nagar alongwith his father inlaw. Second I.O/ PW31 Inspector Dig Vijay Singh asked him to check the house. Accordingly, he checked the house and, thereafter, checked the Almirah as well as locker which was inside the said Almirah and found the jewellery of his wife i.e one golden neckless (Haar), one pair of golden ear rings, one pair of golden Jhumka, one small golden finger ring, one pair of Pajeb of Silver, Two silver Kara of his son and a sum of RS 5000/, which he had given to his wife for 45 days prior to the incidents missing and thereafter police recorded his statement in this regard.
St Vs. Bhagirath and Deepak Nanda 44/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
47.On 31.3.2009, he had again join the investigation in this case. On that day, IO asked him to bring mobile phone bill and the marriage card of Kishore, his cousin. The two persons arrested by the police in this case viz. Bhagirath and Deepak were known to him. Accused Bhagirath was the son of his real uncle viz. Rajaram. He correctly identified the accused Bhagirath in the court. Accused Bhagirath was having a visiting terms in their house as accused Bhagirath alongwith his father Rajaram came to their house in between 1520 November 2008 and handed over him marriage card of Kishore. He handed over the said marriage card and bill of mobile phone to IO which was taken into possession vide seizure memo Ex. PW24/A. The said mobile bill is also proved as Exl.PW24/B. The marriage card is proved as Ex.PW24/C and thereafter his statement was recorded in that regard.
48.He correctly identified the case property produced in the court i.e. two silver bangles (Kara), one pair of golden jhumkas, one pair of golden ear rings (bali), three silver pajebs and one ring of gold belonging to his wife which were looted on the day of incident as Ex.P1. He further identified the necklace as Ex.P2, bed sheet and sweater as Ex.P6 and P7. He further identified the curtain as P8, quilt cover as Ex. P9, one glass and one broken glass collectively as Ex. P10, two tea cups which were lying in the court yard (varandah) as Ex.P11, dressing table as Ex.P12, one shaul, one full sleep sweater, one blouse, one brassiere, one woolen pajame, one peticote and one sari worn by his wife at the time of incident collectively as Ex.P22, full sleeve Tshirt, banian, full sleeve sweater half sleeve St Vs. Bhagirath and Deepak Nanda 45/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda sweater and pajame and underwear worn by his deceased son at the time of incident collectively Ex.P23 and one shirt, Tshirt, sweater, half sleeve sweater, banian and pajame and underwear worn by his another deceased son at the time of incident collectively as Ex.P24.
49.PW25, Dr Adesh Kumar, Senior Scientific Officer (Chemistry) FSL, Rohini, Delhi has deposed that on 27.2.2009 three sealed parcels marked as b11, B21 and B31 were received in their office. The seals were intact and tallied with the specimen seals. The same had been marked to him for examination. After examining them, he made report Ex.PW25/A. The remnants of the exhibits had been sealed with the seal of AY FSL DELHI.
50.PW26, Sh. A.K.Shrivasatava, Assistant Director (Biology), FSL Rohini, Delhi has deposed that on 27.2.2009 21 parcels sealed with the seal as per forwarding letter of SHO in connection with the FIR No. 07/2009 were received in the office of Director FSL, Rohini for chemical analysis. He had examined all the parcels and gave his detailed report vide Ex.PW26/A. The aforesaid exhibits had also been subjected to serological examination using various serological techniques. The detailed report in this respect is Ex.PW26/B.
51.PW30 is Ct. Praveen Kumar. He deposed that he was posted at Mobile Crime Team, South West Distt. On that day he alongwith IC Crime Team ASI Khajan Singh and finger print proficient went to PS Bindapur on request of IO and, thereafter, reached the spot; where he took 32 photographs of dead bodies of one lady and two children in the room at St Vs. Bhagirath and Deepak Nanda 46/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda first floor from different angles. After developing the same he handed over the same alongwith its negatives to the Inspr. Dig Vijay Singh on 14.2.2009 and proved the same collectively as Mark PW30/A1A32.
52.PW31, Inspr. Dig Vijay Singh has deposed that on 13.1.2009 he was posted at PS Binda Pur as Inspector Investigation. On that day the present case was handed over to him for further investigation. On receiving the case file he had gone through the same. Thereafter, he inspected the spot at the instance of ASI Lakh Ram. During investigation he interrogated husband, father in law of deceased and some neighbours of deceased. During that time, the husband of deceased namely Hem Chand was suspected in this case, he tried to get permission for Narco analysis test of Hem Chand but permission was not granted. On 27.1.2009 draftsman was called at the spot, where he took the measurements and rough notes at his instance and thereafter he prepared the scaled site plan and handed over to him. On 1.2.2009 he called Moti Lal father of deceased Seema and Hem Chand, husband of deceased to PS. Thereafter, they went to the spot and got checked all the articles in the almirah. They had told him that the ornaments i.e golden necklace, golden earings and tops, and silver paajeb and silver bangles of children and a sum of Rs. 5000/ were found missing from the almirah. Thereafter, he prepared rough list and then they came back to the PS after locking the premises. He recorded their statements U/s. 161 CrPC. Thereafter, he added Section 397 IPC in the present case. On 4.2.2009, the further investigation was handed over to the SHO Inspector Hoshiyar Singh. During the course of investigation he had received negatives in the St Vs. Bhagirath and Deepak Nanda 47/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda present case. After thorough checking of his files the envelope containing negatives was recovered. Thereafter, he handed over the same to Ct. Praveen on 4.8.2011. He proved the said negatives as Ex.PW30/B1 to B32.
53.PW32 Sh. Naresh Kumar son of Sh Ram Phal has deposed that in the year 2009 he was residing at House No. 313/82E, Tulsi Nagar, Inder Lok, Delhi in his parental house. There were two portions in the house. In one portion of the house his family was residing and in the other portion of the house family of his uncle Sh. Raja Ram was residing. He correctly identified the accused Bhagirath in the court. Bhagirath, accused in this case, for murder of wife of his brother and her sons, was also residing in that house. There was a common entrance in the house. Accused Bharigath was a drunkard and he used to live with one Deepak Nanda who was residing at the distance of 5060 meters from his house. At that time accused Bhagirath and Deepak were not doing anything.
54.PW33, Inspector, Hoshyar Singh was the SHO of PS, Binda Pur at the time of incident and IO of the present case. He conducted the investigation of this case alongwith PW19, ASI, Lakh Ram, PW18, Ct. Vishram, PW22, ASI, Tej Singh and PW23 HC Naresh and in addition to their deposition, inter alia, he deposed that he prepared the site plan Ex.PW33/A. At about 10.00 AM, on 10.1.2009 he alongwith ASI Lakh Ram went to DDU hospital and he got the postmortem of deceased Seema, Kunal and Nishant conducted in DDU Hospital through inquest papers Ex.PW33/B1 to Ex.PW33/B26. During investigation he recorded the statement of witnesses. On 3.3.3009 the TIP of recovered jewellery was St Vs. Bhagirath and Deepak Nanda 48/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda got conducted before Ld. MM and PW3 Moti Ram had correctly identified the jewellery. On 27.2.2009 he sent the exhibit to FSL for depositing the same there for analysis. On said date he sent the dossier of both accused persons to finger print bureau through HC Chander Pal. He also collected the postmortem report in respect of all three deceased, collected the proof of ownership of said motorcycle. The said motorcycle was found registered in the name of one family member of accused Deepak. During the course of investigation, he came to know about the involvement of accused Bhagirath in a case of robbery of PS, Sarai Rohilla. He completed the investigation and after completion of investigation he filed the chargesheet in the court. During trial FSL report and finger print expert report was filed in the court. He further identified the case property and on 27.2.09 he sent the exhibits to FSL for depositing the same for analysis and on the same day, he sent the dossier of both the accused to finger print bureau through HC Chander Pal and collected proof of residence .
55. In cross, he stated that seal of TS was belonging to ASI Tej Singh and he used two seals of Tej Singh . One was used on 6.2.09 and another was used on 8.2.09 and after using the seal, he handed over the same to PW23, HC Naresh. He did not remember the date when the said seals was returned to him by HC Naresh. He did not record the statement of ASI Tej Singh regarding handing over seal to him. He did not remember whether driver had filled the log book of the vehicle on 01.2.2009. He conducted inquest proceeding on 10.1.2009 in terms of Ex.PW33/ B1 to B26. The fact about missing of jewellery had come on St Vs. Bhagirath and Deepak Nanda 49/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda record during investigation was conducted by Inspector Dig Vijay Singh and he came to know about this fact from the investigation done by Inspector Dig Vijay Singh on 1.2.2009. He did not record statement of any family members about missing of jewellery as same had already been recorded. He admitted that PW3 Moti Lal had sent letter to Hon'ble High Court of Delhi for transfer of investigation from local police to other agency. He did not remember whether he had mentioned about opening of almirah in his proceedings or not and further admitted that disclosure statement of the accused were recorded separately in same room one by one. The disclosure statements are in his hand writing. Place of recovery of razor was an open plot and seizure memos were prepared at the spot. No public witness had joined the investigation however, he requested to join. The door of house of accused Bhagirath was found opened when accused took them to his house as his family members were present in the house. He had requested to join the public persons but none had come forward. The necklace was got recovered by accused Bhagirath from an iron box and box was not locked from outside but only its lid was closed by some clamp. The blood stained Tshirt of accused was kept in folded condition by concealing in the garbage which was got recovered on 8.2.09 from Hathora Ram Park. He did not remember the places from where the T shirt was blood stained. He further admitted that he had not prepared seizure memo of helmet which was got recovered at the instance of accused Bhagirath belonging to PW24 Hem Chand. He further admitted that he filed his report Ex.PW33/DX in response to letter sent by PW3 Moti Lal in High Court when he reached at spot on St Vs. Bhagirath and Deepak Nanda 50/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda 09.1.2009, ASI Lakh Ram and members of Crime team were there. He cannot tell the time when Ct. Vishram returned to the spot with rukka and copy of FIR. Hem Chand was present on the first floor and 10 to 15 persons were present outside the house of the deceased. He recorded statement of the witnesses at the spot including Hem Chand and resident of ground floor i.e Satish and his two sons and his wife.
56. He further stated that crime team was consisting of three persons i.e Incharge ASI Khajan Singh, Photographer Ct. Praveen and finger print expert, Ct. Devender apart from driver. He did not remember whether he had mentioned the name of driver in case diary or not. He further denied the suggestion that he has not mentioned name of Ct. Devinder in the case diary deliberately. He admitted that in document Ex. PW8/A name of Ct. Devender was not mentioned by ASI Khazan Singh however, PW7 Ct. Devender, finger print expert had submitted his separate report Ex.PW7/A at the same time. He denied the suggestion that PW7 Ct. Devender never went to the spot or report Ex. PW7/A has been manipulated. He further admitted that in document Ex. PW8/A, there is no mention of finger print expert but finger print expert used to come with the crime team and submits his report separately. He had recorded statement of Ct. Devender in P.S on 31.3.2009.
57.He further stated that he did not remember whether any raid was conducted by CBI official on 24.2.2009. But raid was conducted and ASI Tej Singh was apprehended. He further admitted that he is witness in that CBI case. He further denied the suggestion that crime team St Vs. Bhagirath and Deepak Nanda 51/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda members were present at PS at the time when CBI conducted raid. He did not remember whether he conducted any investigation on 24.2.2009. The site plan Ex. PW33/A was prepared by ASI Lakh Ram at his instruction. There is no mention of tea cups and glasses in that site plan. He did not remember how many documents were prepared on 9/10.1.2009 but ASI Lakh Ram had prepared most of the documents but he did not remember whether any document was prepared by any other police official on that day. Ex. PW18/H is in his handwriting. Ex.PW18/J, Ex.PW18/K, Ex.PW18/L, Ex.PW18/M and Ex.PW18/N are not in his handwriting but same were prepared on his instructions and each bears his signatures. Ex.PW18/K (seizure memo of tea cups) was prepared at the spot by one of his staff member but he did not remember his name and he did not know scribe of document Ex. PW18/K. He further denied the suggestion that document Ex. PW18/K has been manipulated by him.
58.He further admitted that in statement of ASI Khazan Singh , name of ct. Devender is not mentioned, however, this fact is mentioned that two empty tea cups and two glasses were inspected and finger prints were lifted and said statement is Ex. PW33/DX1. When they reached at the spot, photographs were being taken by Ct. Parveen on his instructions. He did not remember whether he had specifically directed the crime team photographer to take the photographs of tea cups and glasses. He did not remember whether Ct. Praveen Kumar took the photographs of cups and glasses but the said tea cups and glasses were kept outside veranda where the utensils were washed. He did not remember how St Vs. Bhagirath and Deepak Nanda 52/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda many utensils were kept alongwith the said cups and glasses. The said cups and tea glasses were sealed in a pullanda on the the spot and he deposited the case property with MHC(M) in the morning of 10.1.2009 but he did not remember the exact time. He did not deposit the seal in malkhana. The photographer had taken photographs of the scene of crime. One scissor was lying in the corner at scene of crime. He did not remember whether it was blood stained or not. He did not specifically mentioned in Ex.PW33/B regarding finger prints taken from the spot on tea cups and in Ex. PW33/B, the fact about submission of crime team report to him is not mentioned. On 7.2.09 both the accused persons were sent to dossier cell and the dossiers were prepared. He did not remember whether he has mentioned this fact in case or not. He did not remember the name of the police official who took the accused persons to dossier cell of South West District but on his directions, H C Chander Pal had collected the dossier from dossier cell and had taken the same to finger print bureau for the purpose of comparison. Copies of finger print were sent to the Director of finger print Bureau vide his letter Ex. PW33/DX2.
59. He stated that accused Deepak had moved an application stating that during his custody his finger prints were taken by the police. The case property received from the hospital was deposited with MHC(M) in the evening of 10.1.2009. Scene of occurrence was locked from outside and keys were handed over to PW23, Hem Chand. He did not remember that Hem Chand had accompanied him or he was relieved from the spot. Keys of the lock of the place of occurrence remained with Hem St Vs. Bhagirath and Deepak Nanda 53/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Chand and as and when it was required to open the lock, he used to take the key from PW23, Hem Chand for the aforesaid purpose. On 6.2.09, PW23 alongwith police party apprehended the accused from near Dhaula Kuan. He recorded disclosure statement of the accused while sitting on a bench lying nearby. ASI of his staff had prepared the arrest memo. No family member of accused Deepak was there and one of the family member of accused Deepak was informed who came at the spot. He had put his signature on the arrest memo and he did not know whether production of accused by brother of accused Deepak Nanda was published in the newspaper "Sandhya Times" on 6.2.2009. He had instructed the police official to intimate Hem Chand to remain present at the scene of incident on 6.2.09 in the evening and pointing out memo of the scene of crime was prepared on his instruction but he did not know the name of the person who prepared the said memo.
60.He further stated that so far as he recollected PW23 HC Naresh had prepared the said pointing out memo. No statement of any person was recorded at the spot on 6.2.09. Thereafter, the police party had gone to Mohan Garden from where in a vacant plot, which was surrounded by houses, accused persons had got recovered razors/ weapon of offence. There was a boundary wall of 3 ft height over the said plot from where the razors was got recovered by the accused persons. No site plan of the said place was prepared at the spot. Recovery memo as well as sketch of razors / weapon of offence were prepared at the spot. Statement of ASI Tej Singh and Ct. Naresh was partly recorded at the place of recovery.
St Vs. Bhagirath and Deepak Nanda 54/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
He did not remember who had recorded statement of ASI Tej Singh and H C Naresh and prepared the recovery memo and sketch of razors. The documents were prepared on his dictation and even sketch of razors was prepared while placing the paper on the bonnet of gypsy and he admitted that he has not marked the place in the sketch of razor which was smeared with mud or blood.
61. He further stated that thereafter, the police party went to the house of accused Deepak Nanda. He did not remember whether any family member of accused Deepak was called at that time. No public person had came at the house of accused Deepak after seeing the police party. Accused Deepak Nanda got recovered the jewellery after opening lock of almirah in his house and his family members were asked to join the investigation but they refused to join the investigation. Seizure memo of the purse, which was recovered at the instance of accused Deepak Nanda, was prepared by HC Naresh. He did not remember who had prepared the seizure memo. He did not remember whether he had recorded statement of any witness at the place of recovery of purse. No site plan was prepared of the place of recovery of purse. The police party had gone firstly to the house of accused Bhagirath and then to the house of accused Deepak. On 6.2.09, accused persons took the police party to Ganda Nala for recovery of clothes and police party searched for the clothes but nothing could be recovered . No document was prepared at Ram Pura Ganda Nala . Statement of ASI Tej Singh and H C Naresh were recorded on his dictation but he did not remember who had recorded their statement. Motorcycle was brought from the house of St Vs. Bhagirath and Deepak Nanda 55/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda accused Deepak Nanda by one of his staff member by riding but he did not remember his name.
62. On 7.2.09, PW33 alongwith his staff interrogated the accused persons. They made supplementary disclosure statements which were recorded by PW33. On 8.2.09 PW33 alongwith PW22 ASI Tej Singh, PW23 H C Naresh and H C Yad Ram and accused persons reached Hathora Ram Park at about 1112 noon from police station. Some people gathered in Hathora Ram Park. After arrest of accused Bhagirath and Deepak Nanda, their dossier were got prepared in dossier cell and copies of the same were got prepared through HC Chander Pal and sent directly to finger print bureau and he did not remember whether H C Chander had brought any document and handed over the same to him or not. He recorded statement of H C Chander Pal.
63. So far as TIP of robbed articles is concerned, he has stated that on the day of recovery of articles, PW3 Moti Lal had reached the court as he was instructed by the court. MHC(M) had produced the recovered articles before the Court alongwith similar articles, collected from some jewellery shop which were to be mixed with the recovered articles but he did not remember details of the articles and those articles were not sealed. On 8.2.09 they reached at the house of accused Deepak Nanda in the afternoon. Some passers by were present there. So far as, he recollected no statement of any person was recorded by PW33 on 8.2.09. He got prepared seizure memo of the articles through HC Naresh. The same were sealed by HC Naresh with seal of TS and seal St Vs. Bhagirath and Deepak Nanda 56/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda was handed over to HC Naresh. During the course of investigation of this case, he was not having any mobile phone on 6, 7,8 and 9.2.2009 as no phone was allotted to police and he did not remember his personal mobile phone number which he was using those days. He further denied the suggestion that the key of the house of Hem Chand remained with the police during investigation.
64.PW35 is SI Gyanender Singh, from Finger Print Bureau, Kamla Market, New Delhi. He deposed that on 31.7.2009 he was posted as above and on that day Chance print Mark Q1 to Q7 alongwith negatives, finger print slips of Bhagirath and Deepak were marked to him for comparison. He thoroughly examined the developed chance print Mark Q1 to Q7 and found chance print Marked Q3 was identical with specimen right thumb impression Mark S1 on the finger impression slip of Deepak @ Deepu, son of Sh. Gopal Krishan. Chance print marked Q4 and Q7 were interse identical and further identical with right thumb impression Marked S2 on the finger impression slips of Bhagirath @ Rinku son of Raja Ram. Chance Print Marked Q1, Q2, Q5 and Q6 were partial and smudged and do not disclose sufficient number of ridge details in their relative position, hence they were unfit for comparison/search. He proved his report as Ex.PW35/A. Enlarged photographs and description of identical points in respect of examination of Bhagirath were proved as Ex.PW35/B1, Ex.PW35/B2 and Ex.PW35/B3. The enlarged photographs and description of identical points in respect of examination of Deepak @ Deepu could not be collected by the IO and he proved the same as St Vs. Bhagirath and Deepak Nanda 57/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Ex.PW35/C1, Ex.PW35/C2 and Ex.PW35/C3.
65.PW36 is HC Rakesh. He deposed that on 31.3.2009 he was posted at PS Palam Gaon, New Delhi. He was present in the police station alongwith IO. One Hem Chand came to police station and he handed over one marriage card and one telephone bill of Airtel to Inspector, Hoshiyar Singh, IO of the present case. The IO had seized the same vide seizure memo Ex.PW24/A. The marriage card Ex. PW24/C and mobile bill as Ex.PW24/B. On 21.4.2009 he alongwith IO Inspector Hoshiyar Singh went to the house of accused Bhagirath and he handed over the copy of his ration card and IO seized the voter identity card vide seizure memo Ex.PW36/A. They went to the house of accused Deepak Nanda and the brother of accused Deepak Nanda handed over to the IO, the copy of ration card and photocopy of voter I card as well as the death certificate of Sh. Durga Dass Nanda grandfather of accused which were taken into police possession by the IO vide seizure memo Ex.PW36/B. Thereafter PE was closed. Thereafter, all the accused were examined u/s 313 cr.p.c and opted to lead defence evidence.
66. In the defence, the accused persons examined as many as five Dws.
67. DW1, Sh. Vinod Kumar is Junior Judicial Assistance from Delhi High court who had brought the summoned record i.e letter dt. 5.2.2009 sent by PW3 Moti Lal to the Hon'ble Chief Justice, High Court of Delhi and proved the same as Ex. DW1/A and reply ( Ex. PW 33/DX) of the said letter filed by SHO, PS, Bindapur .
St Vs. Bhagirath and Deepak Nanda 58/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda 68. DW2, HC Chet Ram has deposed that he has brought summoned
record i.e log book pertaining to vehicle no. DL 1CJ 4785 from 2008 to 2009 and proved the photo copy of movement of said vehicle from 6.2.2009 to 09.02.2009 as Ex. DW2/A. During cross , he has admitted that the said vehicle is used by SHO of P S Bindapur and the said vehicle can also be used by both SHO as well as staff. During cross , he also admitted that the entries in log book are done by the driver but he does not know the name of police official who had made the said entry in the log book.
69. DW3, Sh. Puneet Nanda has deposed that accused Deepak Nanda is his younger brother and on 5.2.09 in the evening, two Head constables had come to their house at 313/83, Tulsi Nagar, Inderlok , Delhi and enquired about his brother Deepak and directed him to produce him on the next day in the morning at about 6/6.15 a.m. One head constable took one motorcycle no. DL 4SA 0745, belonging to his late grandfather, which was lying in the house, documents of which were not traceable in a tempo to PS. On 6.2.2009, he produced his brother Deepak in PS at 6.30 a.m where he was made to sit in a separate room and he was also made to sit in another room. Police/IO had told him that they would release his brother after making inquiry but his brother was not released and he came back to his house. He further stated that he also intimated a person working in newspaper "Sandhya Times"
regarding production of his brother Deepak to PS and at about 6.15 p.m , he again went to P S where one police official Tej Singh told him that St Vs. Bhagirath and Deepak Nanda 59/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda he would see as he (DW3) has got published the matter in newspaper.
70. DW4, Sh. Vishal Anand has produced copy of newspaper Sandhya Tiems dt. 6.2.2009 and proved certified copy of the same as Ex. DW4/A.
71. DW5, Sh. B S Yadav, Record clerk from Patiala House courts has produced a case file bearing CC No.16/11 titled as CBI Vs. Tej Singh decided on 21 & 22.08.2012 and sent the same to Hon'ble High court vide Goshwara No. 51/S/12 in respect of criminal appeal No. 1138/12 and made a relevant entry Ex. PW5/A in dispatch register on 03.10.2012. He also proved the final report (DW5/B) in respect of case titled CBI Vs.Tej Singh. He stated that transcription (Ex. PW4/D2) and Ex.DW5/C is not a certified copy of the same. He proved the application for supplying a copy of the chargesheet under section 173 Cr.PC vide Ex. DW5/D and the order dated 04.05.2012 passed by the concerned court as DW5/E. PW33 Inspector Hoshiyar Singh was a witness at serial no.8 in the list of witnesses of chargesheet (Ex. DW5/B).
72. Ld. State counsel contended that accused persons are addicted to various types of material including liquor and PW24 Hem Chand is relative of accused Bhagirath and Deepak Nanda are good friends and they had looted the deceased Seema and killed her as well as her two sons and accused persons were apprehended on the basis of secret informer. They made their disclosure statement and got recovered blood stained razor/weapon of offence as well as blood stained clothes worn by accused persons at the time of commission of offence and robbed St Vs. Bhagirath and Deepak Nanda 60/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda jewellery belonging to deceased Seema and her both sons and apart from this, finger print impression of the accused persons have been found on tea cups found at the spot by the investigating agencies which tallied/matched with their finger print impressions taken by the IO. Therefore, in view of the impeccable testimony of the prosecution witnesses, the chain of circumstantial evidence is complete and accused is the perpetrator of crime deserves to be convicted.
73. Per contra, counsel for the defence had contended that accused persons have been falsely implicated in the present case by the IO. The real culprit has been let off and recovery made at the instance of accused persons makes its highly doubtful and the arrest of the accused persons is also doubtful as same is alleged to have been signed by brother of accused Deepak but said DW in his deposition has deposed that he produced his brother in PS Dabri and news pertaining to such arrest of accused Deepak was also published in Sandhya Newspaper. Therefore, arrest and recovery at the instance of accused persons is doubtful and the finger print impressions of the accused persons have been manipulated by the police after arrest of the accused persons in order to crack the present case as no such mention of tea cups have been found in the investigation conducted on the intervening night of 09/10.01.2009. Therefore, the chain of circumstantial evidence is incomplete as vital links are missing, as such, accused persons deserve the benefit of doubt and they be acquitted of all the charges.
74.I have heard counsels for the parties and with their assistance have gone St Vs. Bhagirath and Deepak Nanda 61/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda through the record.
75. By now, it is evident that the case of the prosecution rests squarely on the circumstantial evidence. There is no direct eye witness to the crime. Experience shows that crime is rarely committed in full public view at a public place. Often, the crimes including murder are accomplished secretly far from public gaze so as to avoid their detection. In such cases, the culprits are tracked either on the basis of last seen together or other circumstances appearing on the scene including motive of crime, from which their guilt is inferred. Such type of evidence is called as 'circumstantial evidence'. In cases based upon circumstantial evidence, burden upon the prosecution is heavier to prove each and every circumstance leading to the death of the deceased, beyond any reasonable doubt. The facts and circumstances so established should lead to only one inference i.e the guilt of the accused and should be complete without any missing link in the same so as not to leave any reasonable ground for a conclusion inconsistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
76. It is settled principle of law that circumstantial evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
(ii) those circumstances should be of such tendency which point towards guilt of the accused.
St Vs. Bhagirath and Deepak Nanda 62/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
(iii) the circumstance, taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanations of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
77. First of all, it may be noted that the deceased Seema, Nishant and Kunal died of homicidal death as opined by the doctors who conducted postmortem on the dead bodies. Therefore, the question arises to who has caused homicide death of the deceased person.
78.The gist of prosecution story is that on receipt of a message from phone no. 9871833600 at about 10.35 p.m by PW20 HC Vikram regarding murder of one lady and two children at house no. B 42, School road, near post office, Uttam Nagar, he sent the message to PS Uttam Nagar and he proved the PCR from Ex.PW20/A in this regard. Thereafter, IO conducted investigation and accused were arrested. Accused confessed their guilt and got recovered blood stained razor (ustra) as well as blood stained clothes worn by them at the time of committing murder and also got recovered booty from their respective houses. Even the chance prints taken from two tea cups at the spot tallied with the finger print impressions of accused persons.
St Vs. Bhagirath and Deepak Nanda 63/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
79. Thereafter, on receipt of this message at 10.49 p.m on 09.01.2009 PW10 SI Shanti Prakash recorded DD no.31 A ( Ex.PW10/A) and handed over the same to PW 19, ASI Lakh Ram who alongwith PW18, Ct. Vishram left for the spot of incident, where no eye witness was found. PW19 prepared rukka and sent to PS through PW18, Ct. Vishram for registration of FIR. PW18, Ct. Vishram came to PS, Uttam Nagar. He handed over rukka to PW10, SI Shanti Prakash at 12.45 a.m on 9/1001.09 who recorded FIR (Ex.PW10/C) and made endorsement Ex.PW10/B on said FIR. PW10 handed over FIR and rukka to PW18, Ct. Vishram who came back to the spot of incident. PW11, HC Ashok Kumar had received three envelopes from SI Shanti Prakash and delivered special reports to the residence of illaqa magistrate , DCP ( S/W) and Joint Commissioner of Police.
80. It may be noted here that PW21 Hem Chand has deposed that he could not make a call to police from his mobile number 9871833600 as he was not in a position to make a call so he requested his landlord PW13, Satish Kumar to make a call at 100 number. PW13 Satish deposed that he made a call to police from the mobile of PW24 Hem Chand. In view of the testimony of PW13 and PW24, I find no force in the contention of defence counsels that PW24 Hem Chand has admitted having made a call at 100 number.
81. I find no force in the contention of defence counsel regarding ante timing of FIR as PW10, SI Shanti Prakash has deposed that he lodged DD St Vs. Bhagirath and Deepak Nanda 64/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda 41 A at 10.49 A.M and haded over the same to PW19, ASI Lakh Ram who prepared rukka and sent PW19 Ct. Vishram for registration of FIR and PW10 SI Shanti Prakash registered FIR at about 1.30 a.m on 9/10.01.2009 and handed over FIR and rukka to Ct. Vishram and sent copy of special report through PW 11 HCt. Ashok Kumar. So, it cannot be stated that FIR is ante timed and I am of the opinion that FIR in question has been lodged promptly.
82. It may be noted here that the alleged contradictions in the testimonies of police witnesses who had visited the place of incident on 9.1.2009 namely PW 18, Ct. Vishram, PW 19, ASI Lakh Ram, PW33, Inspector Hoshiyar Singh are as under: PW 18, Ct Vishram PW 19, ASI Lakh Ram IO, PW33 Inspector Hoshiyar Singh PW 18 stated that PW 19 photograph Case property crime team scene were taken was deposited in and photographs the evening of were taken two 10.01.2009 after glasses were seized coming from hospital scene of occurrence was locked from outside and keys were with Hemchand and taken from Hemchand as and when required.
St Vs. Bhagirath and Deepak Nanda 65/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
PW 18 stated two PW 19 stated finger Photographs
tea cups lying in prints were lifted were taken by
front of room kept from the inside the the
in a pullanda and room and outside the photographer
sealed and not room. when IO went to
stated about finger spot.
print of these cups.
PW 18 stated PW 19 stated In the courtyard
Hemchand was on Hemchand/ PW 24 used two tea
the spot on met him. cups and two
09.01.2009 glasses were
kept
PW 18 stated he had PW 19 stated that I do not
gone for registration almirah were opened remember
of FIR on two after reaching of whether I had
wheeler of PW 19 senior officer those mentioned the
ASI Lakh ram found stained with name of
blood. Devender in
case diary.
PW 18 stated that all PW 19 stated that PW PW 7 submitted
seizure memos 24 Hemchand stated report Ex PW
were written by IO/ that he would 7/A at the spot.
Pw 33 Hoshiyar disclose the missing Statement of PW
Singh articles later on as he 7 recorded on
was in shock 31.03.2009
condition.
PW 18 stated that PW 19 stated that Siteplan
he do not exhibits were prepared by PW
remember what deposited on 19 on the
proceedings were 10.01.2009 before instruction of
conducted by conducting of post IO/PW 33 and
IO/PW 3 at the spot mortem on dead no mention of
after his coming to bodies. tea cups in Ex
St Vs. Bhagirath and Deepak Nanda 66/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
spot with rukka. PW 33/A (site
plan)
83. It may be noted here also that alleged contradiction in the testimonies of police officials namely PW22, ASI Tej Singh, PW23, Ct. Naresh and PW33, Inspector Hoshiyar Singh who have apprehended the accused on 6.2.2009 and after arrest police party got recovered the weapon of offence/razors at the instance of the accused persons and thereafter, got recovered the robbed articles from the house of the accused persons. Subsequently, on 8.2.2009 got recovered the blood stained clothes of the accused persons from Hathora Ram Park as well as from the house of accused persons are as under : PW33 PW22 ASI Inspector Tej Singh PW23 HC Hoshiyar Naresh Kumar Singh PW 22 admitted presence of PW 23 stated MHC (M) public person IO/PW33 produced on 08.02.2009 at prepared arrest jewellery at Hathora Park memo (Ex Pw the time of including 22/D) and TIP, keys not gardner & gate memo of razors. remained keepers with police for the whole period.
PW 22 admitted PW 23 stated
that Tshirt of PW 22 stitched
St Vs. Bhagirath and Deepak Nanda 67/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
half sleeves of
accused were
stained with
blood from pulandas.
front side.
accused
PW 22 stated
that his
statement was
recorded by PW
23 Naresh
further stated PW 23 Naresh
that his stated PW 22
statement was prepared seizure
recovered at meoms in
Hathora Park Hathore Ram
and remaining Park.
statement at
the house of
accused
Deepak
PW 22 stated PW 23 stated
keys of house of disclosure
PW24 statement were
hemchand was recorded at a
with police. bench available
there.
PW 22 stated PW 23 stated he
that disclosure cannot identify
statement was handwriting on
recorded by Ex PW 18/K.
IO/PW 33 while
sitting in gypsy.
St Vs. Bhagirath and Deepak Nanda 68/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
PW 23 stated
writing work at
PW 22 stated
the recovery of
pointing out
razor was done
memo were
outside plot in
prepared either
the light of
by PW 22 or PW
gypsy whole on
23.
a bench.
PW 23 seals
PW 22 admitted
were not
person of blood
deposited in
on razor.
Malkhana.
84.It may be noted here that PW 18 Ct. Vishram ,PW 19 ASI Lakh Ram reached the spot of incident. They found that three dead bodies are lying at the first floor of rented premises. PW19 ASI Lakh Ram has deposed that dead body of one lady Seema was lying in front of almirah in the room in a pool of blood and dead bodies of Nishant and Kunal aged about 7 years and 4 years respectively were lying on the bed and it appeared that they have been murdered by unknown persons by stabbing with sharp edged weapon. PW19 ASI Lakh Ram called Crime team at the spot. The crime team came there and inspected the spot. The crime team took the photographs. Finger prints were lifted from inside and outside the room. PW24 Hem Chand met them, who informed PW19 that he was the tenant of the said premises and dead bodies of his wife and sons were lying there and, therefore, PW19 ASI St Vs. Bhagirath and Deepak Nanda 69/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Lakh Ram prepared rukka Ex. PW19/A and got the FIR registered. In the mean time, SHO / PW33 Inspector Hoshiyar Singh reached at the place of incident when crime team was inspecting the spot. PW33 inquired from PW24, Hem Chand and asked him whether, any belongings, which were not belonging to him, may be traced but PW24 Hem Chand told PW33 that helmet which was kept on the table, did not belong to him. PW24 Hem Chand further informed that tea might have been prepared two times as cups were lying at the spot of incident which are used in his house, in case, any guest happens to visit his house. The almirah was opened. The blood stained were found inside. Hem Chand told police party that he would disclose the articles later on as he was in shock at that time. PW23 did not record the statement of PW24 Hem Chand as at that time as he was a suspect. PW19 ASI Lakh Ram has also deposed that articles including blood stained clothes and earth control were seized and sealed by I.O.
85. In cross examination, PW19 ASI Lakh Ram stated that it appeared from the spot and after making inquiries from neighbourers residing on the ground floor that PW24 Hem Chand is involved in this crime. He was preparing rukka and crime team reached the spot. I.O did writing work but he could not tell the nature of documents prepared by SHO in the absence of Ct. Vishram, but all the seizures memos were prepared by SHO /PW33, Inspector, Hoshiyar Singh after arrival of Ct. Vishram at the spot with FIR. Crime team left the spot after arrival of Ct. Vishram. Thereafter, SHO/PW33 interrogated PW24, Hem Chand but PW19, ASI Lakh Ram did not remember whether statement of PW24, Hem Chand St Vs. Bhagirath and Deepak Nanda 70/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda was recorded by SHO or not. But statements of residents of ground floor were recorded. The room was locked where dead bodies were recovered after completion of investigation by I.O and keys of the lock were kept by I.O. Keys were not deposited with MHC(M) in his presence. There were three officials of Crime team and he did not remember whether IO recorded their statements or not. Incharge Crime team after preparing the report handed over to I.O. Cups and glasses were lying outside the room in an open courtyard. Some cups were lying in patila (bowl) and some were lying on the ground and residue of tea was present in the patila (bowl). Photographs of the cups were taken by Crime team. PW33 Inspector Hoshiyar Singh had taken those cups into possession but did not seal those cups. He did not recollect as to how many cups and glasses were taken from the spot by I.O but the same were deposited with MHC(M). All seizure memos were prepared by PW33 Inspector Hoshiyar Singh but PW19 could not identify the handwriting on Ex.PW18/ K ( Seizure memo of cups) . He was with I.O/PW33 when exhibits were deposited with MHC(M) and cups and glasses were not sealed when deposited in the malkhana and they were in the open condition. The almirah in the room might have been opened by Crime Team but he did not remember whether it was opened with the key or without key. The exhibits were firstly sealed and thereafter, its seizure memos were prepared and PW18 and PW19 Ct. Vishram signed those seizure memos.
86. It may be noted here that in cross, PW18 Ct. Vishram stated that he did not know whether the statements of Crime Team official or any other St Vs. Bhagirath and Deepak Nanda 71/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda person was recorded by I.O or not but all the seizure memos were prepared by PW33 Inspector Hoshiyar Singh in his presence and exhibits were sealed by ASI Lakh Ram. He could not say whether Ex. PW18/C or Ex.PW18/K were prepared by the same person. ASI Lakh Ram did not conduct any proceedings in his presence after his return from PS but SHO/ PW33 prepared site plan after he came back from PS. The other proceedings were already done when he lifted the deceased person from the spot and his signatures were taken at the spot when he returned from the P.S. The almirah was partly opened and it had blood stains.
87. It may be noted here that in cross examination, PW33 stated that when he reached at spot of incident ASI, Lakh Ram and members of Crime Team were present there. PW24 Hem Chand was present at the spot. The statements of witnesses including that of PW24 Hem Chand were recorded at the spot and Crime Team consisted of three persons i.e Incharge PW8, Khazan Singh, PW 30, photographer, Ct. Praveen and PW7, Ct. Devender, finger print expert but he did not remember whether he had mentioned the name of PW7, Devender in case diary or not. He had denied the suggestion that he has not mentioned the said facts regarding PW7, Devender deliberately in his case diary. He admitted that the name of PW7 Devender, finger print expert was not mentioned in Crime Team report (EX. PW8/A) as Ct. Devender had filed his report separately. He recorded the statement of PW7 Devender on 31.3.2009. He further admitted that site plan Ex. PW33/A does not show cups and glass. He does not recollect as to how many documents were prepared St Vs. Bhagirath and Deepak Nanda 72/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda on 9/10.01.2009 in his handwriting but ASI Lakh Ram prepared most of the documents. He does not recollect whether any documents was prepared by any other police official on that day. Document Ex.PW18/H is in his handwriting but documents Ex. PW18/J, Ex.PW18/K, Ex.PW18/L, Ex.PW18/N are not in his handwriting but these documents were prepared on his instructions and Ex.PW18/K is not in the handwriting of PW18 Ct. Vishram and PW19 ASI Lakh Ram and so far as, he recollected, he recorded statement of PW8 Khazan Singh and PW7 Ct. Dvender at the spot. He admitted that in the statement of PW8 Khazan Singh ( Ex.PW33/DX1) name of PW8 Ct. Devender was not mentioned but this fact is mentioned that two empty tea cups and two glasses were inspected and finger prints were lifted from tea cups. He did not remember whether PW7, Ct. Devender had taken the photograph of empty tea cups. The cups and glasses were kept outside the verandah (courtyard). He did not remember as to how many other utensils were kept alongwith the said empty tea cups and glasses. He has sealed the said cups and glasses into separate sealed parcels with seal of PW19, ASI Lakh Ram but he did not remember as to whom he had handed over the seal after use. He has deposited the sealed parcel with MHC(M) in the morning. The photographer had taken the photographs of scene of Crime, one scissor was lying in the corner but he does not remember whether it was blood stained or not. The scissor was not seized. Crime Team report is detailed in Ex.PW33/B.
88. While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring St Vs. Bhagirath and Deepak Nanda 73/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not helpful to discredit said witness.
89.It may be noted here that PW18, Ct. Vishram, PW19, ASI Lakh Ram and PW33, Inspector, Hoshiyar Singh are witnesses to the recoveries of articles from the spot during the intervening night of 9/10.01/2009. These three witnesses have deposed in unequivocal terms that blood stained bed sheet, quilt cover, cloth of dinning table, earth control, blood stained earth control, empty box of jewellery, glasses and two used tea cups etc were recovered from the spot and Crime team member i.e finger prints proficient PW7, Ct. Devender had taken the finger print impression from the spot including that of two used tea cups.
90. As far as the contention of the defence counsel that Hem Chand was suspect as deposed by prosecution witnesses is concerned, it is relevant to mention here that although, prosecution witnesses have deposed that PW24 Hem Chand was a suspect yet he was found innocent during St Vs. Bhagirath and Deepak Nanda 74/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda the course of investigation. PW19 ASI Lakh Ram has deposed that he has not recorded FIR on the statement of PW24 Hem Chand as he was in a state of shock. PW24 Hem Chand has also admitted that police took photograph of his palm of his hand. PW31 Inspector Dig Vijay Singh, the second I.O has also admitted that, during the course of investigation PW24 Hem Chand was interrogated and he sought permission from ld. trial court for conducting narco analysis of PW24, Hem Chand but permission was not granted . Further PW3 Moti Lal , fatherin law of PW24 Hem Chand has admitted that he filed a petition in High Court of Delhi regarding the faulty investigation by police in this case and he had suspicion against his sonin law, PW24 Hem Chand and thereafter, PW33 I.O/ Inspector Hoshiyar Singh has also stated that he interrogated PW24, Hem Chand, PW3 Moti Lal, sister in law of PW24, Hem Chand and he visited office of PW24 Hem Chand at Gurgaon on 12.01.2009 and earlier PW24 Hem Chand was a suspect.
91. But during the course of investigation there may be a number of suspect but a suspect is made accused by investigating agency only when there is clinching evidence to connect the said suspect with the alleged offence. Therefore, merely a person is suspect of a Crime does not lead to the inference that such suspect is the accused. The purpose of investigation is to collect evidence and connect that evidence with the accused and suspect are to be let off . These powers are bestowed on I.O under the provisions of Cr.P.C especially u/s 169 Cr.P.C. So even if the witness PW24 Hem Chand was a suspect earlier, but during the course of investigation PW33/ I.O recorded statement of PW14 Sh.
St Vs. Bhagirath and Deepak Nanda 75/105
FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
Rajiv and PW15 Sh. Vijay Pratap Singh who have stated in their
statements to I.O as well as in court that PW24 Hem Chand was with them in office at Gurgaon up to 8.30 p.m on 09.01.2009 and after conducting investigation I.O found PW24 Hem Chand as innocent. Therefore, I found no substance in the contention of the defence counsel that PW24 Hem Chand was the real culprit and he has been let off by police.
92. As far as the contention of defence counsels that two used tea cups were planted by police after the arrest of the accused persons by taking their finger impressions on such cups is concerned, it may be relevant to observe here that PW30 Ct. Parveen Kumar stated in cross examination that there was no photograph of any cup/ utensils / glass and even PW33 Inspector Hoshiyar Singh, PW18 Head C. Vishram and PW19 ASI Lakh Ram have stated that Crime Team was inspecting the site and photographer was taking the photographs of scene of crime and in the court yard two used tea cups and two glasses were kept which were seized vide Ex. PW18/K but in cross, PW33 Inspector Hoshiyar Singh admitted that site plan Ex.PW33/A does not contain details of tea cups and glasses.
93. It may be noted here that PW30 Ct. Praveen Kumar has stated that he has not taken photographs of tea cups but merely on this statement of PW30, it cannot be doubted that no used tea cups and glasses were lying at the spot. The said cups were lying in the courtyard where utensils were washed and were not placed inside the room, therefore, the St Vs. Bhagirath and Deepak Nanda 76/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda possibility of such used tea cups being not photographed cannot be ruled out but PW7, Ct. Devender has deposed in categoric terms that he had taken finger print impression of two used tea cups on 9.1.2009 at the spot which were lying in open courtyard. PW8 has deposed that he does not recollect where the cups were placed but those cups were having some designs. PW24 Hem Chand has stated that two tea cups in another Patila (bowl) were kept outside the room. PW 18 Ct. Vishram also stated that two tea cups were lying in front of the room. PW19 ASI Lakh Ram also stated that cups and glasses were lying outside the room in an open courtyard and some cups were lying in the Patila and some cups were lying on the ground and residue of tea was present in the bowl (patila).
94.It is worth mentioning here that the contention that name of PW7 Ct. Devender is not mentioned in Ex.PW8/A is immaterial as PW8 has stated that finger print proficient had taken chance print from spot of incident including tea cups, and his statement was recorded at the spot on 1.09.09. Further PW7, Ct. Devender has stated that photographer of Crime Team took photographs of tea cups/ glasses but PW30 Ct. Parveen Kumar has admitted having taken no photograph of tea cups, therefore, even if, photographs of tea cups were not taken by Ct. Praveen/PW30 but PW7 Ct. Devender had lifted the chance print from tea cups and after taking photographs of lifting tape sent the negatives of the same alongwith lifting tape to finger print bureau and such sample / exhibits were found with seals in tact in the bureau. Finger prints, as deposed by PW35, therefore, even, is no photograph of tea St Vs. Bhagirath and Deepak Nanda 77/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda cups were not taken such lapse is not giving to affect the case of prosecution. As such, merely the fact that photographs of these two empty tea cups are not taken cannot create any doubt regarding seizure of these two empty tea cups after taking finger print impression from those cups.
95. The seizure of these two used tea cups is doubted by defence counsel on the ground that police witnesses have made interse contradictory statements as well as intra contradictory statements regarding seizing of these two tea cups and glasses but this doubt is without any substance as PW18, Ct. Vishram, PW19, ASI Lakh Ram, PW33, Inspector, Hoshiyar Singh, PW24, Hem Chand, PW7, Ct. Devender, PW8, ASI Khazan Singh have stated in unequivocal terms that these used two tea cups were lying at the spot. PW18 Ct. Vishram has stated that two tea cups were seized by I.O vide Ex. PW18/K and no question regarding lifting of finger print impression by PW7 Ct. Devender was put to this witness, therefore, it can be inferred that PW18 Ct. Vishram has not denied lifting of chance print from that used tea cups. Similarly, no question has been put to PW19 ASI Lakh Ram, who has deposed in chief that finger prints were lifted from outside and inside the room, that no finger prints were lifted from the used tea cups, therefore, it can be inferred that PW19 has also denied the lifting of chance print by PW7 Ct. Devender. Even no suggestion in this regard was given to PW18, PW19. Similarly, PW19 ASI Lakh Ram has stated in cross that Incharge Crime Team handed over his report to the I. O and report was prepared by Incharge Crime Team only but no question or St Vs. Bhagirath and Deepak Nanda 78/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda suggestion was put to PW19 regarding report of finger print proficient PW7, Devender whereas PW7 Devender has deposed that he handed over his report Ex.PW7/A to the IO at the spot and PW33 has also stated that he received the report Ex. PW7/A on the spot but he recorded the statement of PW7 Ct. Devender on 31.3.2009 in his office.
96. Therefore, the contention regarding taking of chance print from the empty tea cups is devoid of merit as PW7 Ct. Devender has stated that two chance prints were taken from cups of tea in terms of his report Ex. PW7/A and no public person was present at the spot. PW8 Khazan Singh has also stated in cross that Constable Devender PW7 had lifted chance print from the cups lying in the courtyard in open whereas PW30 Praveen, photographer Crime Team has admitted that no photograph of tea cups / glasses were taken. But these alleged contradictions in the testimony of police witnesses so far as taking of chance print from two empty tea cups and photographs of the said tea cups is not such material which may affect the prosecution case.
97.It is relevant to mention here that PW19 ASI Lakh Ram has stated that some cups were lying in Patila and some cups were lying on the ground. PW24 Hem Chand also deposed in chief that in his courtyard he found that tea was prepared and tea cups were only used for serving tea to guests and besides two tea cups , two glasses were also at the spot and in cross , he stated that two glasses were kept in a steel Patila , which contained used tea leaves and some water and no other utensil in the Patiala except the steel glasses were there and outside the room two St Vs. Bhagirath and Deepak Nanda 79/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda tea cups in another Patila were kept.
98. Therefore, the contentions of the defence counsel that some witnesses have deposed that two tea cups were found lying in open in the courtyard and some witnesses have stated that two tea cups were found lying in a Patila having some residue of tea is fallacious and is hereby rejected as from the conjoint reading of the testimony of PW18, PW19, PW24 and PW33, it can be inferred that they have deposed and corroborated the testimonies of each other so far as recovery of two cups lying at the spot after lifting of chance prints from those cups by PW7 Const. Devender and there are minor discrepancies in their deposition regarding number of utensils including tea cups and further lying of number of tea cups at the spot with or without support of any Patilas but these discrepancies are insignificant and are not going to affect the prosecution case as such discrepancies are bound to occur in the deposition of witnesses as they had deposed after a long gap of time and they cannot be expected to give a parrot like version of each and every minute details of recoveries as with passage of time human memory fades away and witness can not be expected to give a videographic version of sequence of events. Otherwise such discrepancies make their testimony truthful and worthy of credit.
99. So far as preparation of seizure memo is concerned, it may be noted here that PW18, Ct. Vishram has stated that on 09.01.2009, PW33/IO prepared all seizure memo at the spot and PW18 is not sure regarding the scribe of Ex.PW18/C and Ex.PW18/K. Similarly, PW19 ASI Lakh Ram St Vs. Bhagirath and Deepak Nanda 80/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda has stated that all seizure memos were prepared at the spot by IO /PW33 whereas PW33 stated that Ex. PW18/K, Ex.PW18/J, Ex.PW18/L, Ex.PW18/M and Ex.PW18/N were not in his handwriting but Ex. PW18/K was prepared by one of the member of his staff . Therefore, the alleged contradiction in the testimonies of PW18, PW19 and PW33 regarding preparation of seizure memo is neither here nor there and contention of the Ld. counsel for the accused that handwriting on exhibits / seizure memo is not that of any team member and it proved that they were not prepared at the spot but subsequently in the police station by some other police officer, who was not part of the team. It is sufficient in this context, to mention that the I.O/S HO himself was investigating the case with the assistance of other police officials of different ranks. At that time, his attention was not in the issue as to who was asked to do the writing work but to see the contents of the memo prepared on his directions and witnessed by the team members. Even if for the sake of arguments , it is presumed that memos are prepared by different police officials but, for the case, the contents of the various memos prepared during investigation and their correctness has to be proved by the witnesses. It cannot be ignored that witnesses appeared in the court after lapse of sufficient time and as memory fades with the passage of time, it may not be humanly possible to remember the name of the police officials asked to scribe the documents. Investigation in a triple murder case, based on circumstantial evidence required concentration, attention and energy on vital aspects of the case and not on the scribe.
St Vs. Bhagirath and Deepak Nanda 81/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda 100. In the same manner , the alleged contradiction regarding non
mentioning of name of Ct. Devender in the statement of PW8 Khazan Singh ( Ex.PW33/DX1) and in the inquest proceedings ( Ex. PW33/B) is insignificant as PW33 has explained that PW8 Khazan Singh has stated that finger print proficient had taken the chance prints from tea cups and in the inquest proceedings Ex.PW33/B, the mention of crime team report is detailed which includes finger print proficient also. The non mentioning of tea cups in site plan appears to be a mere minor lapse on the part of I.O as the whole investigation appears to be shoddy one but shoddy investigation is not going to help the accused persons if other evidence on record is there to connect the accused with the alleged offence. While it is true that the police should not involve innocent persons, fabricate evidence and obtain convictions, it is equally true that cases in which substratum of the prosecution case is strong and substantiated by reliable evidence, lapses in investigation should not persuade the court to reject the prosecution case. The court with its vast experience should be quick to notice mischief if there is any. Incompetent prosecuting agencies or prosecuting agencies which are driven by extraneous considerations should not be allowed to take the court for a ride. Particularly in offences relating to women and children, which are on rise, the courts will have to adopt a pragmatic approach. No scope must be given to absured and fanciful submissions. It is true that there can be no compromise on basic legal principles, but, unnecessary weightage should not be given to minor errors or lapses. If courts get carried away by every mistake or lapse of the investigating agency, the guilty will have a field day. The submissions relating to St Vs. Bhagirath and Deepak Nanda 82/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda alleged discrepancies in spotting of tea cups and taking of their photographs, lifting of chance prints from those tea cups as well as scribe of documents therefore, are rejected. In this regard I found support from State of UP vs Jagdeo 2003 SCC (Cri) 351, Zahira Habibulla H. Vs. State of Gujrat 2004 Crl.L.J. 2050.
101. Similarly, the testimony of PW19 ASI Lakh Ram that two tea cups were deposited with MHC(M) by PW33 Inspector Hoshiyar Singh in unsealed condition and those cups were not sealed by I.O also is to be discarded in view of the testimony of PW18 Ct. Vishram and PW33 I.O/Inspector Hoshiyar Singh who have deposed that the two empty used tea cups were seized and sealed. Further more, no suggestion has been given to PW4 HC Ram Phal that these tea cups were not sealed when deposited with him by PW33 and PW4 has stated that all sealed parcels were deposited with him in sealed condition. Therefore, this contradiction is also devoid of merits and is hereby rejected.
102. The contention of the counsel of the defence that till 1.2.09 from the date of alleged offence i.s 9.1.09, the police had never investigated the case from the angle of robbery despite the fact that one empty jewellery box Ex.P5 was recovered from the spot and PW18 and PW33 had admitted that key of the house was with the police and PW19 ASI Lakh Ram has also admitted that Almirah was got opened when senior officer reached the spot. It may be noted that PW24, Hem Chand has also deposed that he checked about the robbed articles only on 1.2.09.PW3 Moti Lal has also admitted that on 1.2.09 he joined the St Vs. Bhagirath and Deepak Nanda 83/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda investigation and accompanied the IO to the house of his soninlaw, PW24, Hem Chand. IO/SHO prepared list of missing articles and only, thereafter, PW31 Inspector Dig Vijay Singh / Second IO had added Section 397 IPC. PW24 has also admitted that he had not gone to the spot of incident in between 10.1.09 to 1.2.09 and even PW18, Ct. Vishram has also admitted that he did not remember whether open almirah was checked or not on 9.1.09 and even PW2 sh. Amit Kumar and his mother PW 12 Kanchan deposed that they did not remember whether Hem Chand stayed in the house after the incident and PW2 has submitted that he never visited the house of Hem Chand after the incident. Admittedly, no investigation from the angle of robbery has taken place till 1.2.09 as the police was having suspicion against the suspect PW24 Hem Chand but during sustained interrogation his involvement in the said offence was ruled out and thereafter, his house was inspected, on 1.2.09 in the presence of PW3, Moti Lal alongwith PW24, Hem Chand, who were called at the spot of incident and house was again searched. PW24, Hem Chand got prepared a list of the robbed articles on the day of incident. Although, there is a delay so far as the factum of robbed articles from the house of PW24 Hem Chand yet the delay is explained by the prosecution as earlier prime suspect was PW24 Hem Chand who was in a state of shock and on inquiry PW24 had stated that he will disclose later on whether any item is missing from his house. Therefore, the delay in conducting investigation from this angle of robbery is not going to cause a dent in the prosecution story.
St Vs. Bhagirath and Deepak Nanda 84/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
103. It may be noted here that on 5.2.09 , the investigation of this case was assigned to PW33, Inspector Hoshiyar Singh from PW31, Inspector Dig Vijay Singh and on 6.2.09 at about 4.20 p.m PW33 received an information that the accused involved in the triple murder case in H. No. B42, School Road, Uttam Nagar can be apprehended from Dhaula Kuan bus stand as they are planning to flee away to Rajasthan. PW33 Inspector Hoshiyar Singh constituted a raiding party comprising himself, PW22 ASI Tej Singh, PW23 HC Naresh Kumar, driver Rajender and Ct. Basant and the police party reached near petrol pump, Dhaula Kuan and on the pointing out of secret informer, two persons who were standing on the pavement at Dhaula Kaun, were apprehended. They disclosed their names as Bhagirath and Deepak Nanda resident of Tulsi Nagar near Inder Lok. The accused were interrogated and they disclosed their involvement in the present case. Both the accused were arrested and their disclosure statements were recorded. The accused persons took the police party to the spot of incident and pointed out the place of occurrence. The accused took the police party to Mohan Garden to got recovered blood stained Ustra from the open plot situated opposite for house of Garima Tailor , Mohan Garden. PW22 proved disclosure statement Ex. PW22/2 of Deepak and also seizure memo Ex. PW22/M of Ustra. Accused Bhagirath took the police party to first floor of his house at 313/83, Tulsi Nagar, Jakhira, Delhi where he opened one iron box and got recovered one gold/golden colour necklace in terms of his disclosure statement Ex.PW22/B. The said necklace was seized by I.O vide seizure memo Ex.PW22/N. Accused Bhagirath pretended to get recovered blood stained clothes and thereafter, accused Deepak St Vs. Bhagirath and Deepak Nanda 85/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda took the police party to his house from where one purse kept on the first floor of the house was recovered and said purse was found containing one gold ear tops, golden ear ring , one gold ring , three pajeb of silver and two small kara and said articles were sealed with seal of TS and seized vide seizure memo Ex.PW22/P. Thereafter, he got recovered one motorcycle bearing no. DL1 SN 0245 which was seized and taken into possession vide seizure memo Ex. PW22/Q. Both the accused Bhagirath and Deepak Anand took the police party to Ram Pura Ganda Nala for recovery of their blood stained clothes but nothing was recovered.
104. It is worth mentioning here that on 7.2.2009 both the accused were again interrogated. They have supplementary disclosure statements. On 08.2.09 accused took the police party to Hathora Ram Park where accused Deepak got recovered his T shirt from corner of the park which was taken into possession vide memo Ex. PW22/D. Accused Bhagirath also got recovered one blood stained halmet of PW24 Hem Chand which was seized vide memo Ex. PW22/ U. Blood staind T shirt was seized vide memo Ex. PW 22/V. Accused Bhagirath took the police party to his house and got recovered a plastic bag kept in a room on ground floor. The said bag found containing his leather jacket, one pant/jeans, sport shoes, which he wore at the time of commission of offence and the same were seized vide memo Ex.PW22/X. On 3.3.2009 TIP of the jewellery articles were conducted by the ld. MM in presence of PW3 Moti Lal, father of deceased Seema .
St Vs. Bhagirath and Deepak Nanda 86/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
105. The contention of the Ld. defence counsel of accused that the arrest of accused as well as recoveries affected in pursuant to their disclosure is doubtful as the statements of police witnesses to this effect are full of contradictions and creates doubt in the prosecution story but it may be noted here that on 06.02.2009. Accused were arrested from Dhaula Kuan, whereas the complaint dt. 5.02.2009 was filed by complainant/PW3 Moti Lal before the Hon'ble High Court of Delhi complaining about the snail's pace of the investigation but this sole fact did not create any doubt in the prosecution story as the accused persons were arrested on the basis of secret information and there appears to be no co incidence between the fact of PW3 Motii Lal approaching Hon'ble High Court of Delhi with his grouse regarding line of investigation and arrest of the accused, PW22 HC Tej Singh, PW3 Const. Naresh and PW33 Inspector Hoshiyar Singh stated that police party left the P.S in a Govt. vehicle at Dhaula Kuan at about 5.30 p.m and accused were apprehended at the instance of secret informer. The contention that no log book has been placed on record to infer that police gypsy had been taken to Dhaula Kuan bus stand from Uttam Nagar Police Station is immaterial because even if, it is presumed that log book has not been produced or proved by the police, no doubt can be raised about apprehension of the accused from bus stand Dhaula Kuan as police officials are also witnesses worthy of credit. Hon'ble Apext Court in Tahir vs State 1996 SCC 515 has considered the value of the evidence of police officials and has observed as follows:
"No infirmity attaches to the testimony of St Vs. Bhagirath and Deepak Nanda 87/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda police officials merely because they belong to police force and there is no rule of evidence which lays down that conviction cannot be recorded on the evidence of police officials, if found reliable, unless corroborated by some independent evidence. The rule of evidence however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials after careful scrutiny inspires confidence and is found to be trustworthy and reliable, it can form the basis of a conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the credit worthiness of the prosecution witnesses."
106. The contention of the ld. defence counsel that the accused persons were produced by DW3 , brother of accused Deepak Nanda in police station and said news was published in newspaper is devoid of merit. All the three witnesses to the arrest of accused have deposed in unequivocal terms that the accused persons were arrested from Dhaula Kuan. The testimony of DW3 that he produced accused Deepak Nanda in Police St Vs. Bhagirath and Deepak Nanda 88/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Station before SHO is immaterial as arrest memo of accused Deepak Nanda bears signature of DW3, his brother. IO has stated in cross that he called brother of accused Deepak Nanda from his house and such information which was published in newspaper has also not been proved as to from which sources said news was supplied to the editor. The prosecution evidence if juxtaposed with testimony of defence witness, the prosecution evidence inspires more confidence than defence evidence. Therefore, I am of the opinion that the accused were arrested from the place mentioned in the arrest memo i.e Dhaula Kuan, bus stand.
107. So far as the contradictions as alleged by the defence counsel regarding preparation of arrest memo and recovery memo on 6.2.2009 and other articles got recovered by the accused persons from Hathora Park , Kesho Puram as well as from their respective houses is concerned, it may be noted here that PW22 ASI Tej Ram and PW23 Ct. Naresh are witnesses to arrest and recovery memo. PW22 stated that disclosure statement of the accused was recorded by the SHO/PW33 while sitting in Gypsy whereas PW23 HC Naresh admitted in his cross that disclosure statement was recorded at a bench already available at the spot. PW33 Inspector Hoshiyar Singh has stated that he had requested 34 public persons present at petrol pump to join investigation but no none come forward. He has recorded the disclosure statement of the accused while sitting on a bench lying nearby. These minor contradiction in the testimony of PW22 ASI Tej Singh, PW23 Const. Naresh and PW33, IO/Inspector Hoshiyar Singh is St Vs. Bhagirath and Deepak Nanda 89/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda insignificant as these contradictions appear to be result of fading away of the memory of these witnesses due to lapse of time and such discrepancies is not going to affect the case of the prosecution. The normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time and those are always there, however, honest and truthful witness may be. Material discrepancies are those which are not normal, and not expected of a normal person which normal discrepancies do not corrode the credibility of the case. Material discrepancies do so.
108. It is worth mentioning here that PW22, ASI Tej Singh has deposed that Sketch of the Ustra Ex.PW22/L was prepared by IO/PW33 but in cross, he has stated that he prepared the sketch of Razor/ Ustra. PW23 HC Naresh has deposed that IO prepared sketch of ustra Ex. PW22/C. He further admitted that PW33 prepared the arrest memo Ex.PW22/D as well as seizure memo of razor. He could not tell as to whether apart from this PW33 prepared any memo. PW33, Inspector Hoshiyar Singh has deposed that he did not remember who prepared sketch of the razor and recorded statement of PW22, ASI Tej Singh. PW 22, ASI Tej Singh stated that his statement was recorded by PW23, HC Naresh and statement of PW23, Naresh was recorded by him on the dictation of IO. His incomplete statement which recorded at Hathora Park was continued to be written by PW23, HC Naresh at the house of accused Deepak. Pullandas were stitched by PW23, HC Naresh and seizure memo was prepared by him. PW22, ASI Tej Singh put seal on the pullandas. PW33, Inspector Hoshiyar Singh stated that so far as he St Vs. Bhagirath and Deepak Nanda 90/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda recollected PW23, HC Naresh has prepared the pointing out memo and he asked many persons to join the investigation but none came forward when the accused took them to Kiran Garden/ Mohan Garden to an open plot from where recovery was effected. The plot was having boundary wall and one gate. He stated that he did not recollect as to who had recorded statements of PW22, ASI Tej Singh and PW23, HC Naresh Kumar. He has prepared the recovery memo and sketch of razor. These minor contradictions in the testimonies of PW22, ASI Tej Singh, PW23, HC Naresh and PW33, Inspector Hoshiyar Singh regarding writing of the disclosure statement while sitting on the bonnet or sitting on the bench available there as well as preparation of the seizure memos and pointing out memo at the instance of the accused persons i.e Bhagirath and Deepak Nanda cannot be terms either as a material contradictions or vital discrepancies so as to cause dent in the prosecution story. These are minor contradictions/ discrepancies which are bound to occur in the testimonies of witnesses who deposed after a long time, some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case, discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders the court should not make an attempt to jump over the same. Therefore, such discrepancies are not going to affect the case of the prosecution.
109. So far as the recoveries are concerned, it has been the contention of the ld. defence counsels that recovery of the razor/ Ustra at the St Vs. Bhagirath and Deepak Nanda 91/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda instance of accused is doubtful and the said Ustras have been planted upon the accused in order to crack the present case, the recovery affected from the open plot is doubtful as the said place is accessible to the public at large, therefore, this piece of evidence is inadmissible in law and cannot be relied upon to convict the accused persons. It may be noted here that these contradictions are minor contradiction and seems to be result of a long time gap in recording their testimony and this contention is hereby rejected in as much as PW22, ASI Tej Singh , PW23, HC Naresh, PW33, Inspector, Hoshiyar Singh have deposed in unequivocal terms that the accused persons had made disclosure statement regarding throwing of weapon of offence in open plot having boundaries up to 3/4ft in height and at the instance of the accused persons those weapons of offence i.e Ustras were recovered which were blood stained and such recovery cannot be doubted in the present case and such recoveries are relevant under Section 8 and Section 27 of Indian Evidence Act and admissible in law and I do not find any reason to disbelieve the said recovery made at the instance of the accused persons.
110. The contention of the counsel for the accused that no public witness was joined investigation in effecting to recoveries of blood stained articles including razor (ustra) and these recoveries are made from open area which is in the sight of any person in the area from where these recoveries are effected and said area is highly populated and after such a long time, these articles/things alleged to be got recovered by the accused were visible to the people so the recovery is doubtful. There is St Vs. Bhagirath and Deepak Nanda 92/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda nothing in section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles which incriminates accused is made from any place which is open or accessible to others. It is a falacious notion when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main road side or if it is concealed, beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is interred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses the fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others, if it is not, then it is immaterial that the concealed place is accessible to others. I found no substance in the contention of the counsel for the accused because the sole test for determining is whether the recoveries of articles at the instance of the accused even if lying in open plot and park which may be visible but may not be noticed. Therefore, the test is whether such articles are clearly visible or they are not noticeable.
111.So far as the non joining of the public person is concerned. Law is well settled that the recoveries affected under section 27 of the Evidence Act can be held admissible in evidence and if such recovery is made in the absence of any public person and provision of section 100 Cr.PC St Vs. Bhagirath and Deepak Nanda 93/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda regarding search and seizure are not mutatis mutandis applicable to the provision of section 27 of the Evidence Act. In this regard, I found support from Moha Singh vs State AIR 1976 SC 449, Suresh @ Hakla vs State of Haryana 2008(3) SCC 182 and Sunil vs State 2003(11) SCC 367.
112. So far as, non joining of public witness, it may be noted here that joining of public witness at the time of seizing the articles at the spot as well as recording statement of the witnesses u/s 161 Cr.P.C , the presence of public witness is not sinaquanon for fair investigation . In this regard , I relied upon judgment passed by Hon'ble High Court of Delhi is State Vs. Navin Ahuja (HC) Crl. A 1435/10 where it is held as under " As far as not joining public witnesses at the time of recovery of pistol is concerned, the Court recollects that there is really no such legal pre requisite. [Ref. State, (Govt. of NCT of Delhi) v. Sunil & Anr. (2001) 1 SCC 652, which held that there is no requirement in law either under Section 27 of the Indian Evidence Act or under Section 161 CrPC to obtain signatures of independent respectable persons of the locality on the statement made by the accused.]
113.It may be noted here that the recoveries made at the instance of accused are also relevant under section 8 of Evidence Act because such recoveries also incriminates the accused. The recovery of the articles is pursuant to disclosure statement which is admissible under section 27 of the Indian Evidence Act. The registration of FIR is not a sine qua non for St Vs. Bhagirath and Deepak Nanda 94/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda the recovery to be effected. Recovery can be effected even on an oral disclosure statement. Further the conduct of the accused leading the police party to open plot as well as to their house and the specific place in the house from where the recovery of articles including blood stained clothes is consequently made is also admissible under section 8 of the Evidence Act. In this regard, I find support from Himachal Pradesh Administration vs. Om Prakash (1972) 1 SCC 249.
114. Ld. Defence counsel has contended that this piece of evidence namely finger prints impression of accused is not admissible as the same has not been taken without following the mandate of provision of the identification of Prisoners Act 1920 and he had relied upon judgment Suresh Vs. State (NCT) of Delhi 2010 CRI.L.J.3675 and Ashok Kumar @ Govind etc. Vs. State 2010 CRI.L.J 2329. But this contention raised by the counsel for the accused appears to be attractive but the same is falacious and is hereby rejected in terms of the proposition of law laid down in the case of Sapan Haldar & Anr Vs. State 191(2012) DLT 225 (FB). Therefore, if finger print impression of the accused is taken without getting formal permission of the court, such non compliance of the provision of this act does not render such evidence inadmissible in view of Sapan Haider case (supra). Therefore, this piece of evidence is admissible in law.
115. The next contention of the ld. counsel for the defence is that recovery has been affected for more items than stated by PW24 Hem Chand as PW22 ASI Tej Singh has stated that three pairs of anklets were recovered at the instance of accused Deepak Nanda whereas PW24 Hem St Vs. Bhagirath and Deepak Nanda 95/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda Chand has stated that only two pairs of anklets were missing as per his information. It may be noted here that PW24 Hem Chand has identified three silver Pajebs. PW24 Hem Chand in his statement, has stated that three pajebs of his wife were missing, so, there is no contradiction with regard to the case property that the same was more than the quantity as stated by PW24. Similarly, the blood stained articles/Tshirt got recovered by the accused from Hathora Ram Park, which they were wearing on the day of incident in terms of their supplementary disclosure statements and thereafter, accused Bhagirath got recovered one plastic bag from his house which was containing blood stained gray colour pant , jacket and shoes and the accused Deepak also got recovered blood stained pant, shoes and these recoveries are made in pursuant to the supplementary disclosure statement of the accused and they are also admissible in Section 27 of Indian Evidence Act. The recovery of blood stained articles at the instance of accused from Hathora Park as well as from their houses is further corroborated by the testimony of forensic expert in terms of Ex. PW26/A that blood stain has been found on clothes belonging to the deceased namely Seema, Nishant and Kunal as well as one half sleeve T shirt of accused Deepak and one half sleeve T Shirt of accused Bhagirath including one leather jacket, shoes, pant and shoes belonging to accused Bhagirth and the Ustra/ weapon of offence and the blood found on the said articles found to be of human origin. Such piece of evidence all incriminates the accused persons.
116. So far as the contention of handing over seal by PW19, ASI Lakh Ram St Vs. Bhagirath and Deepak Nanda 96/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda and PW22, ASI Tej Singh to any police official is concerned, it may be noted here that PW22 ASI Tej Singh has stated pullandas were sealed by PW23 HC Naresh who put the seal and said seal was handed over to him after use which was returned to him by PW23 on 9.2.09. PW23 HC Naresh stated that no statement of any witness was recorded in Hathora Park and he has not recollected whether he had prepared any document pertaining to this case and Ex.PW22/D is not in his handwriting. PW23, HC Naresh has stated in cross that seal on pullanda was put by PW22, ASI Tej Singh and after use it was given to him but he did not know who had stitched the parcel. PW23 has stated that in the evening, he returned the said seal to PW22, ASI Tej Singh after proceedings were over and he did not recollect whether after that day seal of ASI Tej Singh was again given to him. He has further deposed that in the evening he had gone with PW33 and others to deposit the case property in mal khana and when case property was deposited with the mal khana seal was with him and seal was not deposited. PW33, Inspector Hoshiyar Singh has stated that the seal was deposited with MHC (M). PW3, HC Ram Phal has deposed that the seal was deposited with him by the IO/ PW33, Inspector Hoshiyar Singh. Therefore, as per the version of PW22, ASI Tej Singh and PW23, HC Naresh, the seal of Tej singh was used by the IO during the course of investigation.
117.So far as the arrest of the accused as well as recovery affected at their instance on 6.02.09 and 8.2.2009 is concerned, it may be noted here that the seal was handed over to H C Naresh/PW23. Only PW23 Naresh St Vs. Bhagirath and Deepak Nanda 97/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda stated that the seal was not deposited with MHC(M). PW33 and PW23 as well as PW3 stated that seal was deposited with MHC(M). These contradictions in the testimonies of PW23 and PW33 appear to be minor discrepancies which do not affect the prosecution case. Similarly, the handing over of the seal to the independent person by the IO after use is not going to affect the prosecution case in view of the law laid down by Hon'ble Punjab and Haryana High Court in Judgment Piara Singh Vs. State of Punjab 1982 Crl. Court cases 450 (HC).
118. So far as the TIP of robbed articles recovered at the instance of accused persons are concerned, it is relevant to observe that PW3 Moti Lal has identified the said robbed articles in TIP conducted by PW9 Sh. Sumedh Kumar Sethi , Ld. MM and the contention of ld. defence counsel that TIP was not got conducted through PW24 Hem Chand, husband of deceased Seema as he was natural witness to identify the jewellery item is devoid of merits as PW3 Moti Lal has categorically stated that the articles which he identified in TIP belongs to his daughter Seema as he had seen major jewellery articles which she has worn at the time of her last visit to her parental house in December 2008 so identification of jewellery item by PW3 Moti Lal belonging to deceased Seema i.e his daughter as well as grand children is not going to raise doubt in the prosecution story that the articles got recovered by accused persons which were duly identified By PW3 Moti Lal were not belonging to the deceased persons.
119. So far as the contention regarding unsealed case property being St Vs. Bhagirath and Deepak Nanda 98/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda produced by the IO/ PW33, Hoshiyar Singh before PW9, Sh. Sumedh Kumar Sethi, Ld. MM who has stated that said bag containing property of items produced by the IO were not sealed by the IO is concerned. PW33 Inspector Hoshiyar Singh has stated that MHC(M) has produced the recovered articles at the time of TIP but PW33 could not give the details of those articles and those articles were not sealed and similar items were used jewellery. The contention of defence counsel that PW4/MHC(M) has not stated any word regarding production of case property before PW9, Sh. Sumedh Kumar Sethi, Ld. MM for TIP purpose is immaterial as no suggestion has been given either to PW4 HC Ram Phal that he has not produced the case property before the Ld. MM nor any such suggestion has been given to PW9 Sh. Sumedh Kumar Sethi, Ld. MM that PW4 H C Ram Phal has not produced the case property before MM.
120.So far as the custody of the key of the room at the first floor of the spot of incident where triple murder was committed on 09.01.2009 is concerned, it may be noted that PW19 ASI Lakh Ram has admitted in cross that room was locked and he did not know about the key whether the same was retained by the police or returned to PW24, Hem Chand. PW24, Hem Chand has admitted in cross that said lock was opened by Inspector/ PW31, Dig Vijay Singh with keys and keys were kept with him. PW31 has stated that key of the house was in his personal custody and those keys were not deposited in the mal khana. PW33, Inspector Hoshiyar Singh has stated that scene of incident was locked from outside and keys were handed over to PW24, Hem Chand and the key of St Vs. Bhagirath and Deepak Nanda 99/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda the lock of the place of occurrence remained with Hem Chand and after arresting the accused when the police party reached the spot, PW24, Hem Chand was already present there and room was unlocked by Hem Chand in his presence. PW24, Hem Chand stated that heys were with PW31 Inspector Dig Vijay Singh and PW33 have stated that keys were with PW24, Hem Chand and PW19, ASI Lakh Ram, stated that he did not know regarding possession of the keys but PW33 has stated that keys were with PW24 Hem Chand therefore, possibility cannot be ruled out that second IO Inspector Dig Vijay Singh was assigned investigation of this case On 13.1.2009 and investigation remained with him up to 4.2.2009 and during that period keys might have been kept by PW31 Inspector Dig Vijay Singh and he might have given the same to PW24, Hem Chand as PW33, Inspector Hoshiyar Singh has stated that keys were with PW24, Hem Chand. Therefore, it can be inferred from the testimony of prosecution witnesses that keys were kept by the police for sometime and thereafter, handed over to police by Hem Chand and later on, first IO handed over the same to PW24, Hem Chand and that is why PW24 opened the door of his house when the accused persons pointed out the place of occurrence on 6.02.2009.
121. So far as road worthiness of motorcycle, which was allegedly used by accused Deepak at the time of commission of offence is concerned. It may be noted that PW33 has stated that said motorcycle was brought to the police station by one of his staff member. The contention of the ld. defence counsel that the said motorcycle was not road worthy and was lying in junk yard unattended but mechanical inspection report clearly St Vs. Bhagirath and Deepak Nanda 100/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda depicts that said motorcycle was found road worthy and this contention is also found devoid of merit and is hereby dismissed.
122. So far as manipulation of finger prints of accused taken by police is concerned as alleged by the ld. Counsels for defence, it may be noted here that the accused were arrested on 6.2.09 and on 7.2.09 both the accused were sent to dossier cell where dossier were prepared. PW33 has stated that he did not remember who took the accused persons to dossier cell of S/W District and on his instruction H C Chander Pal has collected dossier from the dossier cell and taken the same to bureau for the purpose of comparison and he denied the suggestion that he manipulated the finger prints during his custody and he has admitted that he collected finger print report through his letter Ex.PW33/DX2. Although, the accused has led defence evidence to the extent that finger prints of the accused were manipulated in the police station, Binda Pur on 24.2.09 when the CBI team raid was conducted in which PW22 ASI Tej Singh was apprehended at the spot and charge sheeted and convicted by ld. trial court and appeal is pending and in that case, the prosecution has relied upon CD which contained conversation of PW22 Tej Singh and complainant in that case and in that CD some conversation between ASI Tej Singh and complainant pertaining to the fact that some finger prints in a case of triple murder in which two children died are being adjusted but in view of the testimony of PW33 that he sent the accused persons to dossier cell S/W District on 7.2.09 , prior to the said raid conducted and photo copy of the finger impression of the accused persons collected from dossier St Vs. Bhagirath and Deepak Nanda 101/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda cell bears the date of 7.2.09 which have been attested by PW33 and on 7.2.09 such finger prints impression of accused were sent to the finger print bureau by the SHO/PW33, inspector, Hoshiyar Singh vide his letter bearing diary No. 342 BP dated 23.02.2009 Ex.PW33/DX2. and chance print taken by the photographer PW7 Ct. Devender were sent directly to finger print bureau and those impressions were compared and found to be identical by PW35 SI Gyanender Singh in terms of his report Ex. PW35/A which contains the facts that in large photograph and description of identical points in respect of accused Bhagirath vide Ex.PW35B1, Ex.PW35/B2 and Ex.PW35/3 and that of accused Deepak in terms of Ex.PW35/C1, Ex.Pw35/C2 and Ex.PW35/C3. Therefore, it cannot be said that PW33 Inspector Hoshiyar Singh has manipulated the finger print impression of the accused persons on tea cups and after making adjustment and sent the same to the finger print bureau.
123. From the above discussion, it is sufficient to sum up by observing that alleged contradictions and discrepancies including those in para Nos.82 and 83 in the testimony of the witnesses as contended by defence counsels are not going to affect the prosecution case. In the same way, the contention regarding planting of two empty tea cups by taking finger print impression of the accused is devoid of merits and such discrepancies are insignificant causing no dent in the prosecution story. Therefore, the prosecution has proved the following links in the chain of circumstantial evidence that the accused are the perpetrator of the crime involved in the present case namely :
(i) accused Bhagirath is brotherinlaw of deceased Seema and he was on St Vs. Bhagirath and Deepak Nanda 102/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda visiting terms with the family of the deceased and PW24 Hem Chand has deposed that in November 2008, accused Bhagirath alongwith his father has visited his residence to invite him in a marriage;
(ii) accused Bhagirath and accused Deepak are close friends as deposed by Pws.
(iii) on 01.02.2009, PW24 and PW3 prepared the list of robbed articles looted from the house of PW24 in intervening night of 09/10.01.2009.
(iv) Accused persons were arrested and they suffered disclosure statement and in terms of disclosure statements, blood stained razor (ustra)/weapon of offence was recovered and the doctor opined that the possibility of use of these weapons of offence in causing injuries on the body of deceased persons cannot be ruled out.
(v) injury present on the body of the deceased persons were caused with sharp edged weapon and those injuries are sufficient injuries in the ordinary course of nature of death.
(vi) On 06.02.2009, after getting recovered weapon of offence, accused persons got recovered jewelery articles which they have looted from the deceased persons before committing the murder and said jewelery articles have been identified by PW3, father of the deceased Seema as that of her daughter Seema, his grand children Nishant and Kunal.
(vii) After getting recovered weapon of offence, accused persons got recovered jewelery articles which they have looted from the deceased persons before committing the murder and said jewelery articles have been identified by PW3, father of the deceased Seema as that of her St Vs. Bhagirath and Deepak Nanda 103/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda daughter Seema, his grand children Nishant and Kunal.
(viii) The fingerprint expert PW7 has lifted the chance prints from two empty tea cups lying in the courtyard and after their arrest, their fingerprint impressions were taken by PW33 Inspector Hoshiyar Singh and those fingerprints taken by IO matched with the chance prints taken from the two empty cups at the spot in terms of the report filed by the experts.
124.Above said links in the chain of circumstantial evidence point to the guilt of the accused persons and while examining in 313 Cr.PC, accused have failed to offer explanation to such incriminating evidence put to them.
125.It is obligatory on the part of the accused while being examined U/s 313 CrPC to furnish some explanation with respect to the incriminating circumstances associated with him and the court must take note of such explanation, even, in case of circumstantial evidence, in order to decide as to whether or not the chain of circumstances is complete when the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of crime and he fails to offer an appropriate explanation with respect to the same, the said act may be considered as providing a missing link for completing the chain of circumstance. In this regard & found support from State of Maharashtra Vs Suresh (2000) 1 SCC 471, Musheer Khan VS State of M.P.(2010) 2 SCC St Vs. Bhagirath and Deepak Nanda 104/105 FIR No.07/09 State Vs. Bhagirath and Deepak Nanda
748.
126. From the above discussion, I am of the opinion that every link in the chain of circumstantial evidence is complete and prosecution has been successful in bringing home the guilt of accused persons and accused persons are hereby found guilty for commission of offence under section 302/397/34 IPC and hereby convicted accordingly.
127. Put up for order on sentence on 16.01.2014.
Announced in the open Court
on 6th January 2014 ( Vijay Kumar Dahiya)
ASJ02/Dwarka Courts
New Delhi/06.01.2014
St Vs. Bhagirath and Deepak Nanda 105/105