Delhi District Court
State vs . (1) Vivek @ Vicky, on 5 April, 2018
IN THE COURT OF SH. AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440289/2016
In the matter of:
State Vs. (1) Vivek @ Vicky,
(2) Vinod,
Both son of Sh. Sukhdev,
R/o C-334, Transit Camp
Raghubir Nagar, New Delhi.
FIR No. : 168/11
Police : Dwarka Sec.23
Station
Under : 302/34 IPC
Sections
Date of institution of case : 13.03.2012
Date of committal to Sessions Court : 30.03.2012
Date of assignment to this court : 20.08.2017
At the stage of prosecution evidence
Date on which judgment was reserved : 02.04.2018
Date on which judgment was pronounced: 05.04.2018
JUDGMENT:
1. The case of the prosecution is that on 16.12.2011, DD No. 17A was received at PS Dwarka Sec. 23 regarding Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 1/51 the murder of one man, aged about 25 years in front of Bar Shop, Sec. 20, Service Road Footpath and the said DD Entry was attested by SHO Insp. Bhagwan Singh. The said information was given to PSI Jasveer Singh and SI Hazari Lal, who was in Court on telephone and told them to reach at the spot. Thereafter, Insp. Bhagwan Singh, Ct. Lokesh, Ct. Kuldeep and Ct. Dinesh reached at the spot in a govt. vehicle bearing No. DL 1CJ 2881 i.e. Service Lane, Road No. 226, Opposite Indian Overseas Bank, Sec. 20, Dwarka, New Delhi, where on the footpath of Service Lane, between some bushes, one dead body of male aged about 23-24 years was lying in pool of blood. The head of the dead body was towards west side and his leg was towards east side. Near the dead body, one red/gazari colour shirt was found lying on which red colour strips were there and right sleeve of the shirt was torn and one grey colour hawai chappal was also found lying there. On the right leg hawai Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 2/51 chappal, there was some blood, whose strip was broken. One knife cover of cardboard was also lying near the dead body on which 'stainless steel' was written with some more words. At a distance of 4-5 steps away from the dead body, one pair of shoes of black colour with white strips was found lying on which golden star was written. On dead body, there was one sandal on the right leg and another sandal was lying near the dead body of the other side. There were clothes on the dead body i.e. white colour shirt, under neath a woolen read colour sweater of full sleeves and blue colour jeans pant, and light dark brown colour (moogia colour) underwear. On thorough inspection of the dead body, there were injuries mark on the right side of the neck, under eye in front, left side of chest, right shoulder and back etc. with some sharp weapon, in the right hand palm of the deceased, there was one white colour button with thread and on the left hand, 'Khushboo' was Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 3/51 written. From the left side pocket of jeans of deceased one I- card was found, which was issued by Cinnabon Hospitality Services, on which one photo was there and name Suraj was written. From the right pocket of deceased, two SIM cards of Idea Company No. 89910480211251630261 and 89910480101108802975 were also found. No eye witness was found at the spot and case under Section 302 IPC was got registered. Crime Team and dog squad was called at the spot, photographs were taken from different angles. The articles, the clothes of the deceased and earth control were seized and sealed in a pulanda with the seal of BS. The dead body was identified by his brother Sh. Subodh Paswan and Sh. Nitin Paswan as body of Suraj s/o Sh. Anand Pawan r/o C-314, New T.C. Camp, Raghubir nagar, New Delhi. Dead body was preserved in the mortuary of DDU Hospital, statement of witnesses were recorded, wherein Sh. Nitin @ Nikki has stated Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 4/51 that on 15.12.2011 at about 6 p.m.-6.30 p.m., he saw his brother Suraj with his neighbour Vivek @ Vicky on his motorcycle and they were going somewhere at that time and on seeing the gazari colour shirt and shoes of black colour, he stated that abovesaid articles are belongs to Vivek and he has doubt that deceased Suraj was called by Vivek and was murdered by him. Thereafter, further necessary investigation was conducted and accused Vivek @ Vicky was arrested in front of Central School, Tagore Garden, New Delhi and he was interrogated and he disclosed that the fact that he and his brother (co- accused) Vinod had committed the murder of deceased Vinod and reason for said act was relation of deceased Suraj with their sister Manju and disclosed the manner in which they did so. Thereafter, all the documents were prepared and PM report was collected and thereafter, completion of investigation, charge-sheet under Sections 302/34 Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 5/51 IPC & 27/54/59 Arms Act against accused Vivek @ Vikki and Vinod Khanna was filed.
2. Vide order dated 04.06.2012, the charge for the offences under Sections 302/34 IPC was framed against the accused Vivek @ Vicky and Vinod and separate charge for the offence under Section 27 Arms Act was framed against the accused Vivek @ Vicky to which they all pleaded not guilty and claimed trial.
3. The prosecution examined 25 witnesses.
PW1 HC Hariom. He is Duty Officer and proved photocopy of DD No. 17A as Ex.PW1/A, copy of FIR as Ex.PW1/B, his endorsement as Ex.PW1/C, DD No. 19A as Ex.PW1/D, DD No. 20A as Ex.PW1/E, photocopy of DD No. 24A as Ex.PW1/F. PW2 Sh. Anand Paswan. He is the father of the deceased and identified the dead body of deceased Suraj in the mortuary at DDU Hospital Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 6/51 and proved his statement Ex.PW2/A. PW3 is Sh. Subodh Paswan. Deceased Suraj was his younger brother. He deposed that on 16.12.2011, on showing the identity card of his brother by the police official, he identified the same as it belonged to his brother Suraj. He further deposed that thereafter, he accompanied the police officials and identified the dead body of his brother and deposed about the proceedings conducted at the spot at that time by the police officials and proved seizure memo of hard paper cover as Ex.PW3/A, seizure memo of slippers as Ex.PW3/B, shirt as Ex.PW3/C, sport-shoes of accused Vivek as Ex.PW3/D, sandals as Ex.PW3/E, button as Ex.PW3/F, seizure memos of two SIM cards as Ex.PW3/G. He further deposed that on 18.12.2011, he joined the investigation with IO and accused Vivek @ Vicky and Vinod were arrested, Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 7/51 interrogated and their disclosure statement were got recorded in his presence and proved arrest memo of accused Vivek @ Vicky and Vinod as Ex.PW3/H and Ex.PW3/I respectively, their disclosure statements as Ex.PW3/J and Ex.PW3/K respectively, seizure memo of clothes of accused Vinod as Ex.PW3/L and of Vivek @ Vicky as Ex.PW3/M, seizure memo of motorcycle as Ex.PW3/N, sketch of the knife as Ex.PW3/O, seizure memo of knife as Ex.PW3/P. He further deposed that on 20.12.2011, he identified the dead body of his brother in the mortuary of DDU hospital and proved his statement in this regard as Ex.PW3/Q, case property i.e. hard paper cover as Ex.P1. Pair of slippers belonging to accused Vinod as Ex.P2, clothes recovered at the instance of accused Vinod as Ex.P3, clothes recovered at the instance of accused Vivek @ Vicky as Ex.P5, seizure memo of one pair of Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 8/51 black colour sport shoes (which belonged to accused Vivek @ Vicky) as Ex.P6.
PW4 (no witness examined as bearing No. PW4.) PW5 is Dr. Komal Singh. He has deposed that on 20.12.2011, he conducted the postmortem on the body of deceased Suraj Paswan, aged about 22 years, male sent by Insp. Bhagwan Singh and Ct. Mohit and proved detailed PM report as Ex.PW5/A and detailed subsequent opinion as Ex.PW5/C. PW6 Sh. Nitin @ Nikki. He is the real younger brother of deceased Suraj. He has deposed on the same line as deposed by PW3. He also deposed that on 15.12.2011, at about 6/6.30 p.m., he had seen his brother Suraj going on the motorcycle with accused Vivek.
PW7 Sh. Praveen. He has deposed that he is the photographer by profession. He further Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 9/51 deposed that he was called by police officials at the spot i.e. near Metro Station, Sec.9, Dwarka and he took nine photographs at the spot from different angles and proved the same as Ex.PW7/A1 to Ex.PW7/A9.
PW8 ASI Khajan Singh. He has deposed that on 16.12.2011, on the requisition of local police, he inspected the spot and HC Bajrang had taken the photographs of the scene of the spot from different angles and proved his detailed inspection report as Ex.PW8/A. PW9 Ct. Shakeel Ahmad. He has deposed that on 16.12.2011, on the requisition of IO Insp. Bhagwan Singh alongwith sniffer female dog (bitch) Teena reached at service lane patri, road No. 226, Opp. Indian Overseas Bank, Sec. 20, Dwarka, New Delhi and stated that his statement was recorded by the IO.
PW10 HC Bajrang. He has deposed that on Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 10/51 16.12.2011, on the requisition of local police, he alongwith Incharge Crime Team ASI Khazan Singh reached at the spot at about 1.45 p.m., where dead body of a person was found lying in the pool of blood and he took photographs of the scene of the crime from different angles and proved the same as Ex.PW10/A1 to Ex.PW10/A23 and their negatives as Ex.PW10/B1 to Ex.PW10/B23.
PW11 Ct. Lokesh. He has deposed that on 16.12.2011, he joined the investigation of the present case with Insp. Bhagwan Singh. PW12 Ct. Anil Kumar. He has deposed that on 18.12.2011 at about 08.30 p.m., after receiving an information to report at Dwarka Sec. 20, Service Road, near Red Light, Sector-9, Metro Station, he alongwith ASI Attar Singh, Incharge Mobile Crime Team, reached there and after reaching they found one knife having black Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 11/51 colour wooden handle in the bushes and the blade of said knife the word 'concord' was written, having blood stains on the blade of the knife. On the directions of IO, they tried to obtain finger prints from the knife but no finger print was found on the knife. He proved his report Ex.PW12/A, wherein he has mentioned that the knife was recovered at the instance of the accused.
PW13 Ct. Roshan. He is the special messenger and deposed that on 16.12.2011, he had taken the copies of the FIR and present the same before the area MM and the senior officers of the police, immediately after recording of the FIR of the present case.
PW14 Ct. Mohit Balyan. He has deposed that on 16.12.2011, he had taken the dead body of deceased Suraj to DDU Hospital in a government vehicle for conducting the postmortem and he Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 12/51 remained there in the mortuary of DDU Hospital with dead body. He further deposed that after postmortem, dead body was handed over to relative of the deceased.
PW15 Sh. Puran Chand. He is the mechanical Inspector. He has deposed that on 28.12.2011, he conducted the mechanical inspection of the motorcycle No. UP 14T 0274 make Kawasaki Bauxar, colour silver at PS Dwarka Sec. 23 and proved his report as Ex.PW15/A. PW16 Inspector Madan Pal. He has deposed that on 21.12.2011, he alongwith Insp. Bhagwan Singh visited the spot and took measurements of the spot on the instance of Inspector Bhagwan Singh and prepared rough notes and on the basis of the same, prepared scaled site plan on 24.01.2012 and proved the same as Ex.Pw16/A. PW17 Ct. Deepak. He has deposed that on the Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 13/51 instructions of the SHO Inspector Bhagwan Singh, he had taken sealed pulanda with the seal of BS vide RC No. 127/21 of knife to DDU Hospital and brought the copy of RC to PS and handed over the same to MHC(M).
PW18 HC Chhatar Singh. He has deposed that on 16.12.2011, Insp. Bhagwan Singh had deposited 10 sealed pulanda in the malkhana vide Entry at S. No.2023 in register No.19 and proved the same as Ex.PW18/A. He has further deposed that on 18.12.2011, four sealed parcels with one motorcycle No. UP 14T 2074 make Bajaj Boxer of silver colour with its seizure memo were deposited vide Entry at S. No. 2025 and proved the copy of the same as Ex.PW18/B. He has further deposed that on 20.12.2011, two sealed parcels and two samples seals of DDU Hospital were deposited by Insp. Bhagwan Singh in malkhana and he made entry this effect at Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 14/51 S.No. 2028 in register No.19 and proved the same as Ex.PW18/C. He further deposed that on 28.12.2011, ten sealed parcels with sample seals were sent to FSL, Rohini, Delhi through SI Hazari Lal on the directions of the Insp. Bhagwan Singh vide RC No. 130/21/11 and on 21.05.2012, the same received back from FSL, Rohini, Delhi in the malkhana and he also made entries to this effect and proved the copy of RC No. 130/21/11 as Ex.PW18/D and on 21.05.2012, the case property was received back from FSL Rohini, Delhi in the malkhana.
PW19 ASI Rajender Singh. He has deposed that on 16.12.2011, at about 11.10 a.m., one passerby informed him about lying of dead body near wine shop at Sec. 20, Dwarka and on this he alongwith staff reached there and he informed the police control room through wireless.
Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 15/51
PW20 Sh. Deepak. He had brought the
summoned record of mobile number
9873576794 and certified photocopy of the customer application form with ID and proved the same as Ex.PW20/A (collectively) and call details & certificate under Section 65B of the Indian evidence act as Ex.PW20/B. PW21 Sh. Rajeev Ranjan. He had brought the summoned record of Customer Application Form of mobile phone No. 9268637887, which was in the name of Sukhdev and proved the copy of the same as Ex.PW21/A (consisting of two pages, collectively). He also proved call detail record of said mobile phone and certificate under Section 65(4)(c) of the Indian Evidence Act,1872(signed by Mr. M.N. Vijayan) as Ex.PW21/B and Ex.PW21/C. Certificate in respect of call detail from 01.12.2011 to 16.12.2011, location chart of the mobile phone No. 9268637887 from Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 16/51 01.12.2011 to 16.12.2011 and certificate under Section 65B (4)(c) of the Indian Evidence Act, both signed by him as Ex.PW21/D and Ex.PW21/E and Ex.PW21/F. PW22 SI Hazari Lal. He has deposed that on 16.12.2011, at about 11 a.m., he was in the court in some matter and received an information regarding murder committed in the area and he directly reached at the spot from there, where SHO handed over him one chit i.e. Identity card of pacific mall of the deceased and thereafter, he went to Pacific Mall situated at Subhash Nagar Mor near Raghubir Nagar, where he got identified the ID card and came to know that deceased Suraj is the resident of TC Camp, Raghubir Nagar, New Delhi. He further deposed that thereafter, he went at the abovesaid address, where two brothers of deceased namely Subodh and Nitin met him and he Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 17/51 disclosed them about the dead body found in the area. He asked him to accompany him and to identify the dead body. He further deposed that on 18.12.2010, he joined the investigation with IO Insp. Bhagwan Singh and deposed about the investigation carried out by IO Insp. Bhagwan Singh in his presence. He proved the disclosure statement of accused Vinod s/o Sh. Sukhdev Singh (Ex.PW3/J), disclosure statement of accused Vinod (Ex.PW3/K), seizure memo of car (Ex.PW3/N), seizure memo of documents regarding ownership of motorcycle as Ex.PW22/A, seizure memo of pulanda (Ex.PW3/L), arrest memo of accused Vivek @ Vicky (Ex.PW3/H), arrest memo of accused Vinod (Ex.PW3/I), personal search of accused Vivek @ Vicky as Ex.PW22/B and of Vinod as Ex.PW22/C, pointing out memo of place incident as Ex.PW22/D(pointed out by accused Vinod) and Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 18/51 Ex.PW22/E (pointed out by accused Vivek @ Vicky), sketch of chhura (Ex.PW3/O), seizure memo of Chhura (Ex.PW3/P), seizure memo of mobile phone of G fire of Vivek @ Vicky as Ex.22/F and seizure memo of TATA Indicom phone as Ex.PW22/G, seizure memo of pulanda of blood stained clothes of deceased Suraj, one plastic polythene having clothes of deceased Suraj and one paper envelope having blood sample piece of deceased with the seal of DFMT DDU Hospital with two samples seals DFMT DDU Hospital as Ex.PW22/H. PW23 SI Jasveer. He has deposed th at on 16.12.2011, he was on emergency duty and received a call from the Duty Officer at about 11.20/11.23 a.m. regarding a murder and to report to the SHO Insp. Bhagwan Singh at Service Lane, Road No.226. Opp. Indian Overseas Bank, Sec. 20, Dwarka, New Delhi and Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 19/51 at that time, he was on another call received from PCR. He further deposed that after receiving of said call, he reached at the spot, where SHO Insp. Bhagwan Singh alongwith other staff was found present and one dead body of a boy aged about 23-24 years was found lying at the spot in the pool of blood having injuries. He further deposed that the spot was inspected by the SHO and Crime Team was called, who also inspected the spot. He further deposed about the investigation conducted Crime Team at the spot and by the SHO and proved seizure memo of pulanda of packing cover, the pair of hawai chappal, the gajri colour shirt, pair of sport shoes, sandal, button and two SIM cards of Idea as Ex.PW3/A to Ex.PW3/G respectively, seizure memo of blood stained earth lifted from the spot and earth control as Ex.PW23/A, I-card as Ex.PW23/B. He also identified the case property. Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 20/51 PW24 Inspector Bhagwan Singh. He is the IO of the present case and conducting the investigation. He has deposed that on 16.12.2011, DD No. 17A regarding lying of dead body at road No. 226, Service Road, Sector-19, Dwarka was received and thereafter, he alongwith Ct. Kuldeep, operator Ct. Dinesh and Ct. Lokesh reached at abovesaid spot in a govt, vehicle i. e. DL 1C J 2881 make Qualis. He further deposed about the investigation conducted by him, work done by Crime Team & Dog Scott. He has proved DD No. 17A as Ex.PW24/A, rukka Ex.PW24/B, Crime Team Report Ex. PW8/A, I-card of the deceased as Ex.PW23/A, the packing cover of knife as Ex. PW3/A, seizure memo of hawai chappal as Ex. PW3/B, shirt Ex. PW3/C, sport shoes as Ex.PW3/D, sandal as Ex.PW3/E, button as Ex. PW3/F, two idea SIM cards as Ex.PW3/G, seizure Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 21/51 memo of earth control with blood smeared soil as Ex.PW23/A, arrest memos of accused Vivek @ Vicky and Vinod as Ex.PW3/H & Ex.PW3/I respectively, personal search memo of accused Vivek @ Vicky and Vinod as Ex.PW22/B & Ex.PW22/C, disclosure statements of accused Vinod and Vivek @ Vicky as Ex.PW3/J & Ex.PW3/K, seizure memo of one mobile G Fire of accused Vivek @ Vicky as Ex.PW22/F, seizure memo of TATA Erickson mobile of accused Vinod as Ex.PW22/G, seizure memo of motorcycle UP 14T 2074 as Ex. PW3/N, seizure memos of clothes of accused Vinod and Vivek @ Vicky as Ex.PW3/L & Ex.PW3/M, documents of motorcycle as Ex.PW22/A, pointing out memo of accused Vinod as Ex.PW22/D and of Vivek @ Vicky as Ex.PW22/C, crime team report as Ex.PW12/A, sketch of the knife as Ex.PW3/O and its seizure memo as Ex.PW3/P, application to conduct Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 22/51 postmortem as Ex.PW24/C, brief facts as Ex.PW24/D, Form 25.35 as Ex.PW24/E, dead body identification statement of Subodh as Ex.PW3/Q, handing over memo of dead body as Ex.PW24/F, seizure memo of clothes of the deceased as Ex.PW22/H, application for getting opinion of the doctor regarding recovered knife as Ex.PW24/F and its road certificate as Ex.PW24/H, subsequent opinion on the same as Ex.PW5/C, sketch prepared by doctor as Ex.PW5/B, postmortem report as Ex.PW5/A, call details of abovesaid mobile phones of accused Vivek @ Vicky and Vinod as Ex.PW22/A to Ex.PW22/F, forwarding letter to FSL as Ex.PW24/I, FSL report of biological division and of physics division as Ex.PW24/J and Ex.PW24/K respectively, rough site plan of the spot and place of recovery of the knife as Ex.PW24/L & Ex.PW24/M respectively, copies of DD No. 20A, Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 23/51 24A, 19A as Ex.PW24/N, Ex.PW24/O & Ex.PW24/P respectively and FSL report dated 08.05.2012 as Ex.PW24/Q and also proved the case property.
PW25 Dr. Vineet Kumar Soni. He has deposed that on 19.12.2011, accused Vinod s/o Sh. Sukhdev Singh was medically examined by Dr. Yogenra Kohtari under his supervision. He proved the MLC of accused Vinod as Ex.PW25/A.
4. On 08.03.2018, the statement of both the accused under Section 313 Cr. P.C. were recorded wherein all the incriminating evidence was put to them, to which their stand were of general denial. Both the accused persons pleaded innocence and stated that they have been falsely implicated in this case. Accused Vivek @ Vicky also denied that the shoes Ex.P6. Shirt Ex.P7 belongs to him and accused Vinod also denied that sleepers Ex.P2 belongs to him. Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 24/51
5. I have heard Sh. Dushyant Siwatch, Ld. Addl. PP for the State and Sh. B.S. Choudhary and Sh. Viplav Mukherjee, Ld. Counsel for the accused persons.
6. The material on record has been perused.
7. Ld. Addl. PP argued that the deceased Suraj Pawan was distant relative of both the accused persons and they were having suspicion that the deceased was having affair with their sister and both of them complained about the same to PW6 Sh. Nitin @ Nikki, brother of deceased prior to the incident and both the accused persons were annoyed due to the said affair. Both of them had planed to commit the murder of deceased and on the day of incident i.e. 15.12.2011 at about 6/6.30 p.m., accused Vivek @ Vicky had taken deceased Suraj Paswan on his motorcycle to the spot and accused Vinod subsequently reached there and both of them had committed murder of the deceased. The weapon of Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 25/51 offence i.e. knife was recovered from the spot. It is further argued that the button of shirt of accused Vinod was found in the palm of the deceased. It is further argued that the case is based on circumstantial evidence and the prosecution has successfully proved the case by examining several witnesses and by way of FSL Report. It is further argued that at the time of commission of murder, during scuffle, accused Vivek @ Vicky had sustained injuries and the MLC Ex.PW25/A corroborates the same. It is further argued that both the accused are liable to be convicted for the offence 302/34 IPC and accused Vivek @ Vicky is also liable to be convicted for the Section 27 Arms Act.
8. On the other hand, the counsel for the accused argued that the recovery in this case is not admissible as the location of the articles was not as per the disclosure statement of the accused persons and the same is not admissible as per the Section 27 Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 26/51 of the Evidence Act. It is further argued that there is inordinate and unexplained delay in sending the exhibits to the FSL and as such the possibility of tempering is not ruled out. It is further argued that the motive in this case has not been established because the alleged lover namely Manju stated to be sister of the accused persons has not been examined by the prosecution. It is further argued that the chain of circumstances in this case is broken and incomplete and the circumstances of last seen is doubtful and false and the prosecution has failed to prove its case against the accused persons beyond any reasonable doubt and as such they deserved to be acquitted. It is further submitted that the button has been planted in order to make a case against the accused persons.
9. In support of his contention, Ld. Defence Counsel has relied upon judgment passed by Hon'ble Supreme Court of India in case titled as Nizam & Anr. Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 27/51 Vs State of Rajasthan (Citation No. 2015 Law Suit(SC)
826), Anter Singh vs State of Rajasthan (Criminal Appeal No. 1105 of 1997, dated 05.02.2014), Mohammed Inayatullah vs The State of Maharashtra (Criminal Appeal No. 131 of 1971 dated 09.09.1975), Gurpreet Singh vs State of Haryana (Criminal Appeal No. 130 of 2001 dated 12.09.2002) and judgment passed by Hon'ble High Court in case titled as Lalu Pasi vs State (Citation No. 2017 Law Suit (del) 5376 dated 28.10.2017).
10. Before adverting to the facts of the case, I would like to discuss the law with respect to circumstantial evidence when direct evidence is not available. There are numerous judgments on this aspect but I would not like to refer number of judgments. Law is well settled in this regard. Reference can be made to judgment titled Kishore Bhadke vs State of Maharashtra in Criminal Appeal No. 467 of 2010 dated 03.01.2017 with Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 28/51 Criminal Appeal No. 854 of 2010 & Criminal Appeal No. 11 of 2015" and "Raja @ Rajinder vs State of Haryana in Criminal Appeal No. 486 of 2010 dated 10.04.2015"
11. Relevant para of judgment Kishore Bhadke vs State of Maharashtra (based of last seen evidence) "16. The prosecution has also established the vital circumstances of last seen together. The evidence is given by PW11 & PW12 in particular. Their evidence will have to be juxtaposed with the evidence of PW-15, who has spoken about the telephone call received from Nalini and pursuant to which Raman left his house in her presence with relevant documents/papers. The courts below have accepted her version as truthful and Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 29/51 reliable. That evidence cannot be discarded on the basis of some minor discrepancies pointed out during the court of argument. The finding recorded by the two courts below with regard to PW15 about the truthfulness of her version is unexceptional. The evidence of PW11 corroborates the fact that deceased Raman had gone to bank for withdrawing cash amount and then proceeded to the house of Nalini accused No.1. He has deposed that Raman went inside the house of Nalini and saw accused No.2,3,4 and 6 standing near the cattle shed of Nitin Rai. While returning back, he saw accused No.5 standing near the water tank.
32. In the case of Keshav (supra), the court held that in the case of Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 30/51 circumstantial evidence, conviction can be recorded on the basis of motive.
Further, the circumstance of last seen together becomes relevant if the death takes place shortly after accused and deceased were last seen together."
12. Relevant para of judgment Raja @ Rajinder vs State of Haryana (based on circumstantial evidence, last seen, recovery of knife, clothes at the instance of accused persons and motive of accused persons).
"9. From the aforesaid it is clear as day that the Court is required to evaluate the circumstantial evidence to see that the chain of events have been established to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of the Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 31/51 innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.
10. In the instance case, the circumstances that have been established by the prosecution are that the deceased had accompanied the accused-appellant, being called by him, from his house in the early part of the evening on the date of occurrence. The mother of the deceased, Kalawati, PW11, has deposed in that regard. Thereafter, from the material brought on record, it is clearly revealed that the appellant was seen at the tea stall with the deceased. The said fact has been deposed by Mahender, PW10. Thus, Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 32/51 from the aforesaid evidence, two facts are established, namely, the accused and the deceased had left the house of the deceased and were seen taking tea together at the tea stall. It is submitted by the learned counsel for the appellant that the last seen theory as advance by the prosecution is not acceptable in as much as the owner of the tea stall has not been examined. When the testimony of the aforesaid two witnesses deserve acceptance and receive corroboration from the other evidence on the record, no adverse inference should be drawn because of non-examination of the tea stall owner, who, as has been submitted by the learned counsel for the appellant, is a material witness. It is well settled in law that non-examination of a material Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 33/51 witness is not a mathematical formula for discarding the weight of the testimony available on record, if the same is natural, trustworthy and convincing. That apart, he was not such a witness who alone was the competent witness to depose about a fact and his non-examination would really destroy the version of the prosecution.
12. Another circumstance that has been proven is about the recovery of knife, blood-stained clothes and the ashes of the burnt blanket. The seizure witnesses Sukha, PW7 and Nanak, PW9 have proven the seizure. It is submitted by the learned counsel for the appellant that police had recorded the confessional statement of the accused-appellant at the police custody and thereafter, as alleged, had recovered certain things which really do Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 34/51 not render any assistance to the prosecution, for the confession recorded before the police officer is inadmissible. That apart, the accused had advanced the plea that the articles and the weapon were planted by the investigating agency. To appreciate the said submission in proper perspective, we may profitably reproduce a passage from State of UP v Deoman Upadhyaya, AIR 1960 SC 1125:
The expression, 'accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person, who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 35/51 confessional or other statements made by a person, while he is in custody of a police officer, is tainted and therefore, inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a provisio to Section 26, the two sections do no necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which lead to discovery of facts. By Section 27, even if a fact is deposed to as Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 36/51 discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered."
13. There is no dispute regarding the law laid down in judgment produced by accused persons. The main factor to be proved on the record is whether circumstantial evidence is such which is unbroken or whether chain is established or not. If the chain is found broken at any point of time, the accused are entitled for benefit of doubt but if the chain is unbroken then there is no escape for them. Now I will deal with the arguments of accused one by one.
14. The first argument of the counsel for accused was that there is some doubt regarding the location of recovery of weapon. After going through the file, it transpires that counsel has tried to take the benefit from the statement of PW-22 SI Hazari Lal, disclosure Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 37/51 statements of accused persons and statement of IO /SI Bhagwan Singh PW-24. PW-22 has stated that knife was recovered from Sector-8 and disclosure statement says it was Sector-9. Sector-8 and Sector- 9 are in front of each other, so anybody can take the name of any sector. Moreover, PW-22 has stated that "accused took the police party near the bushes situated in front of Sector-8 Dwarka". So in these circumstances, both the statements i.e. statement of PW-22 and disclosure statement can be reconciled. In the recovery memo Ex. PW-3/P, word mentioned is "near red light, sector-9, Sector-20, Dwarka". Witness PW-24 IO has stated that "in the meantime, accused Vivek @ Vicky also disclosed that knife from which he committed murder of deceased was thrown by him in the bushes situated on the same road near sector- 9, Metro Station". So in these circumstances, it is observed that PW-24 has also talked about Sector-9. Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 38/51 In disclosure statement Ex. PW-3/K pertaining to accused Vivek, it is mentioned that he has thrown the knife in the bushes of sector-9, Metro Station. Ex. PW-3/P recovery memo of knife also shows that knife was recovered at the instance of accused Vivek, so in these circumstances, the arguments of the counsel is not tenable and same does not hold water and accused cannot take benefit of same.
15. Second arguments of the accused is that there was delay in sending the exhibits to FSL also does not hold water because from evidence, it has been established that all due care and caution has been taken while dealing with exhibits and FSL report also does not suggest that there was any delay, hence there can be any variation in report. The argument is more technical in nature and is rejected.
16. The third argument of accused is that prosecution has failed to establish the motive. Merely, Manju has not been examined does not mean that case of Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 39/51 prosecution can be rejected. PW-6 has categorically stated that "One time accused Vivek and Vinod had complained to us that there is some affair between my brother Suraj and their sister Manju. We tried to understand our brother Suraj on this issue". So motive was clearly made out. Even otherwise, nothing has prevented the accused from producing Manju in their defence, if they wanted to deny the fact that there was no motive to kill the deceased on account of Manju. So non-examination of Ms. Manju, sister of accused person does not affect the case because even otherwise the prosecution has been able to proves its case through the circumstantial evidence as well as FSL reports. Moreover, since, Ms. Manju was sister of accused persons, there were chances of her not deposing against the accused persons.
17. The next argument was with respect to Section 27 of Indian Evidence Act. It was stated that the place Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 40/51 from the knife was recovered was open and anybody can throw knife there. The argument does not hold water. The fact of recovery of knife at the instance of the accused Vivek @ Vicky is concerned, the same was recovered from the bushes at a considerable distance from the main road and the said place was not accessible to all and was not a public way and was within exclusive knowledge of accused. Moreover, police cannot have any idea regarding such vast area as to from where the knife can be recovered. So this argument is also rejected.
18. The next argument was with respect to recovery of two shirts of one accused. In the present case, three shirts of two accused persons have been recovered. One was lying near the place of incident i.e. near the dead body. The two other shirts were got recovered at the instance of two other accused from the house separately. It has come in the evidence that two shirts were worn by the two accused and in one of Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 41/51 the shirts, the accused has wrapped the knife. The recovery memo of shirt is Ex. PW-3/C. In the disclosure statement Ex. PW-3/K, accused Vivek has mentioned the fact that he has wrapped the knife in this shirt. The case of the prosecution is not that this shirt was worn by any of the accused. Moreover, the absence of any blood stains on this shirt itself shows that this was not worn by any of the accused. So the explanation has been given by the prosecution regarding the recovery of three shirts. There was no motive for IO to implant this shirt because otherwise also the case of prosecution would not have been improved by introducing shirt and has not fallen flat, if this shirt was not recovered.
19. The argument of Ld. Defence counsel regarding non-joining of any of the independent witness of the alleged incident is devoid of any force. In the present case, police had tried to trace direct witness of the murder but conspiracy is always hatched in dark and Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 42/51 in only these circumstances, the theory of circumstantial evidence is important. The last seen theory has been brought on record by examination of PW-6 and other connecting evidence and thereafter, burden of proof was discharged by the prosecution. So even though there is no direct evidence, does not mean that prosecution can suffer for the same.
20. As far as arguments with regard to button is concerned, it was submitted by the Ld. APP that the button was recovered from the palm of the deceased on 16.12.2011. And from the perusal of file, it reveals that the same was seized vide seizure memo Ex.PW3/F on the same date i.e. 16.12.2011 and the shirt with missing button was recovered subsequently on 18.12.2011 at the instance of the accused Vinod and there was no occasion for the police for fabricating any evidence with regard to button. The button was already recovered before the accused were apprehended and the shirt to which that button Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 43/51 belonged was seized later on. Police has no idea as to which was the shirt and who had worn it on the date of incident. The chain was established later on. So there is no question of any false implication, when the accused were apprehended on 18.12.2011 and the button was recovered on 16.12.2011 vide Ex. PW- 3/F and was deposited in malkhana.
21. Another material and important evidence in this case is statement of PW-20 Deepak and the document proved by him i.e. Ex. PW-20/A and B. As per the disclosure statement of accused Vivek @ Vicky, the mobile phone instrument of deceased Suraj was used by accused Vivek @ Vicky by inserting his SIM card of Mobile phone No. 9873576794. This fact has been proved by the prosecution by way of call details, which were produced by PW20 Sh. Deepak, Nodal Officer, Vodaphone. Ex. PW-20/A is the Customer Application Form of accused Vivek vide which phone No. 9873576794 was allotted to him. As Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 44/51 per the call details records Ex.20/B, the IMEI No. in the call details from 18.21 to 19.46 is different from the IMEI No. of the rest of the period. Ex. PW-20/B further shows that the above phone No. was owned by accused Vivek @ Vicky. The call details to another number bearing phone No. 9268637887 has been made during this period which phone number pertains to father of both the accused. Ex. PW-21/C is the certificate given by Tata Indicom and proved by PW-21 Sh. Rajiv Ranjan. The call details of Tata Delhi Circle shows receiving of call on the number used by accused Vinod from phone number 9873576794 at 06.10.54. Correspondingly, at the same time, Ex. PW- 20/B shows the outgoing call from phone No. 9873576794 to No. 9268637887, thus in these circumstances, another scientific evidence has come on record which has proved the time, date and detail of the call coupled with the disclosure statement of accused persons. It has to be kept in mind that Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 45/51 police investigation agency had no idea that any call was made inter-se between two accused and only on disclosure statement of the accused, it came to the knowledge of police personnel that such call was made and thereafter, only it was proved from the documents obtained from both the telephone operator.
22. Now I will deal regarding the chain of events and how the prosecution has been able to succeed in proving that same has not been broken coupled with fact that all evidence leads to one conclusion pointing out towards the guilt of the accused persons and commission of crime by them. On 15.12.2011 at about 6/6.30 p.m., PW6 Sh. Nitin @ Nicky had seen accused Vivek @ Vicky taking deceased Suraj Pawan on motorcycle (later on proved as Ex.P13) and thereafter, on 16.12.2011, at about 10 a.m. the dead body of deceased was found lying near footpath near bushes in front of wine shop, Sector-20, Dwarka, New Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 46/51 Delhi and when on receipt of information, the police reached there and inspected the spot and found that there were several knife injuries and cut on the neck of the deceased. It has come in the evidence that on inspection of the spot, one light red/gazari colour Ex.P7, one pair of hawai chappal/slippers Ex.P2 and one pair of sports shoes of black colour Ex.P6 and one card board cover Ex.P1 were lying near the dead body and from the palm of deceased, one button with thread Ex.P10 was also recovered and later on during investigation, the slippers Ex.P2 were found of accused Vinod and the sports shoes Ex.P6 and the shirt Ex.P7 were found of accused Vicky. It has further come in the evidence that after the arrest of the accused persons, they made disclosure statements about the murder of the present case and got recovered the clothes, which they wearing at the time of commission of murder and at the time of recovery, the said clothes were found having blood Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 47/51 stains and the top second button of shirt of accused Vinod was found missing and later on when the said shirt was sent to FSL, the expert of FSL found that the button in exhibit 3 (the button recovered from palm of the deceased) and buttons exhibit B1 to B9 on shirt of Ex.6 (shirt of accused Vinod) were similar in respect of colour, texture, design, thickness, diameter of button, diameter of wholes, distance between wholes and appearance under UV light and the thread in Ex.3 and stitchings threads of buttons of shirt Ex.6 were similar in respect of colour texture, type of twist, number of strands and appearance of UV light. It has further come in the evidence that in pursuance of his disclosure statement, accused Vivek also got recovered knife, which is weapon of offence from the bushes near the place of occurrence. PW3 Sh. Subodh Paswan and PW6 Sh. Nitin @ Nicky had categorically deposed that shoes, slippers belongs to accused persons and PW5 Dr. Komal Singh, who Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 48/51 conducted postmortem had opined that the injuries No.1 to 8 on the dead body of deceased could be possible by the knife i.e. weapon of offence. It has also come in evidence that at the time of commission of murder during scuffle, accused Vivek had sustained injuries and he was medically examined during investigation and MLC Ex.PW25/A corroborates the said injuries and the accused had failed to give any explanation as to when and how, he had sustained the said injuries. The meticulous scientific evidence has come on record which has put the nail in the coffin of the case of the accused persons. Furthermore, Section 34 IPC is also attracted because both the accused had acted in connivance with each other. The recovery of slipper and shoes and the shirts of both the accused separately /respectively clearly points towards the commission of act in further of common intention.
23. From the abovesaid observations, though there Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 49/51 is no direct evidence regarding the murder of deceased by the accused persons but from the perusal of testimonies of the witness recorded in the court and going through the exhibits i.e. seizure memos, FSL Reports and a call details, the connectivity of accused persons with the alleged incidents has been established. Oral or direct meticulous evidence has come on record against the accused persons.
24. It is further observed that prosecution has also established the use and recovery of knife used in murder by accused Vivek. The knife was recovered at the instance of accused Vivek vide Ex. PW-3/P, so the case U/s 27 of Arms Act is also duly made out against accused Vivek @ Vicky and he is accordingly convicted for the offence U/s 27 of Arms Act.
25. So from above discussion, the commission of crime by the accused persons and causing murder of deceased Suraj stand duly proved. Witnesses have Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 50/51 duly supported the case of prosecution and no dent could be created in their testimonies. Motive of accused persons to cause murder of deceased Suraj is also made out. Thus, on all counts, guilt of accused persons has been duly proved beyond any doubt. The accused Vivek @ Vicky and Vinod are held guilty for commission of offence punishable under Section 302 IPC. Accused Vivek @ Vicky is also convicted for the offence punishable under Section 27 Arms Act. Case property is confiscated to State after expiry of period of appeal. Bail bonds and surety bonds are discharged.
26. Be put up for order on sentence on Digitally signed 10.04.2018.
AJAY by AJAY GOEL
Date:
GOEL 2018.04.12
15:15:02 +0530
Pronounced in the open court. (AJAY GOEL)
Dated: 05.04.2018 ASJ/Special Judge (NDPS)
Dwarka Courts/New Delhi.
Sessions Case No. 440289/2016 State Vs. Vivek @ Vicky & Anr. Page No. 51/51