Delhi District Court
State vs . Atul Dabas & Ors. on 18 September, 2009
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTH-WEST)-04, ROHINI : DELHI
(Sessions Case No. 279/07)
State Vs. Atul Dabas & Ors.
FIR No. : 120/02
U/s : 302/120-B/201/411 IPC
P.S. : Bawana
State Vs. 1. Atul Dabas
S/o Sh. Dharambir Singh
R/o H.No.299, Village Kanjhawala,
Delhi.
2. Rajesh Dabas
S/o Sh. Jai Prakash
R/o H.No.301,Village Kanjhawala,
Delhi.
3. Naveen Dabas
S/o Sh. Rajinder Singh
R/o H.No.392,Village Kanjhawala,
Delhi.
4. Ramesh Chander
S/o Late Sh. Swaroop Singh
R/o H.No. 185, Village Kanjhawala,
Delhi.
Date of institution of case-09.08.2002
Date on which, judgment have been reserved-01.09.2009
Date of pronouncement of judgment-15.09.2009
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JUDGEMENT
In the present case, on 27.4.2002 at about 1:58 P.M on receipt of DD No. 12A at P.S Bawana, SI Ramesh Singh alongwith Ct. Sukhpal Singh went at the spot i.e Western Canal, near Gopal Gaushala, Village Hariveli Delhi , where they found a dead body of a young boy, whose lower portion was inside and upper portion was outside the water and there was a helmet on the head of the dead body which was having blood stains. After removing the said helmet, they examined the dead body and found the bullet injury marks above the left eye. On the neck of the dead body, on the left side bullet entry wound and on the right side exit wound were also found and the face of the dead body was blood stained and blood stained handkerchief was found tied on the neck of the dead body and the age of the deceased was 20-22 years. The dead body was got photographed and was taken out from the water and a yellow colour shirt, blue colour jeans, baniyan, jockey underwear and addidas shoes and black belt were found on the dead body of the deceased. The blood was also found lying scattered on the ground and in the mean time, Insp. Rajbir Singh Officiating SHO P.S Bawana reached at the spot. Thereafter a rukka was prepared and the same was sent through Ct. Shri Om at P.S Bawana 3 for the registration of the present case. Accordingly, the present case was registered vide FIR No. 120/02 at P.S Bawana and the investigation of this case was entrusted to the IO.
During the course of the investigation, the above said dead body was identified by the accused Ramesh Chander to be that of his son Ompal and after the postmortem, the dead body was handed over to Ramesh Chander and the same was cremated by him. After few days, an application was moved by the father of Yogesh ( since deceased ) before the police in respect of the clothes and photographs of the deceased and he recognized the dead body in the photographs and the clothes thereof to be belonging to his son Yogesh and accordingly the investigation was then directed towards the accused persons in this case, which led to the arrest of the accused-Atul Dabas, Rajesh Dabas, Naveen Dabas and Ramesh Chander in this case.
2. On completion of investigation, chargesheet was filed. After committal, arguments on the point of charge were heard and charges for committing offence u/s- 120-B IPC, u/s-302 r/w section 120-B and u/s-411 IPC were framed against the accused Atul Dabas, Rajesh Dabas and Naveen 4 Dabas. Charge for committing the offence punishable u/s-120B IPC, u/s-302 r/w section 120-B and u/s-201 r/w section 120-B IPC was also framed against the accused Ramesh Chander by one of the Ld. Predecessor of this court. The accused persons pleaded not guilty to the respective charges framed against them and claimed trial.
3. In support of its case, prosecution has examined 45 witnesses i.e PW-1 to PW- 45.
4. After recording of prosecution evidence, statements of accused u/s- 313 Cr. P. C were recorded, wherein all the incriminating evidence was put to the accused, which the accused persons denied as incorrect. They claimed to be innocent and stated that they have been falsely implicated in this case. Accused Ramesh Chander stated that he does not want to lead any evidence in his defence, however accused Atul, Rajesh and Naveen Dabas stated that they want to lead evidence in their defence.
5. In their defence evidence, the accused Atul Dabas, Rajesh Dabas and 5 Naveen Dabas have examined DW-1 Premwati, DW-2 Puran Singh and DW-3 Ishwar Singh .
6. I have heard arguments put forward by Ld. Addl.PP and Ld. Defence Counsels and have carefully gone through the voluminous record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case and by the accused in their defence. I have also carefully perused the written arguments filed on behalf of the prosecution/complainant and the case law relied upon by the prosecution/complainant and the ld. defence counsels.
7. In the instant case, the case of the prosecution is that on or about 26.4.2002, accused Atul Dabas, Rajesh Dabas and Naveen Dabas alongwith their co-accused Ompal entered into a criminal conspiracy to commit murder of Yogesh at Delhi and in pursuance to the said conspiracy, all above named accused persons committed the murder of Yogesh in the night intervening 26th & 27th April 2002 at Western Canal, near Gopal Gaushala, Hareveli Delhi within the jurisdiction of P.S Bawana and threw the dead body in the canal. It 6 is further stated that accused Ramesh Chander was also a part of the aforesaid criminal conspiracy to commit murder of Yogesh and in pursuance to the said criminal conspiracy, accused Ramesh knowingly identified the dead body of Yogesh as to be that of his son/co-accused Ompal knowing or having reasons to believe that murder of Yogesh has been committed and accused Ramesh cremated the dead body of Yogesh showing it to be the dead body of his son Ompal with intention of causing the evidence of commission of the offence to disappear and to screen the offenders from legal punishment. It is also the case of the prosecution that on 11.5.2002, accused Atul Dabas was arrested and was found in possession of one mobile hand set, make Nokia of gray colour bearing no. 350145308480390 and one locket with chain belonging to the deceased Yogesh, accused Rajesh Dabas was found in possession of one gold ring belonging to the deceased Yogesh and accused Naveen Dabas was found in possession of one wrist watch belonging to the deceased Yogesh and it is alleged that all of them dishonestly received or retained the said articles knowing or having reason to believe that the same belong to the deceased Yogesh and were taken away by them from the person of Yogesh after committing his murder in the night intervening 26th & 27th April 2002 at the 7 Western Canal, near Harveli Delhi within the jurisdiction of P.S Bawana.
8. In order to prove its case on record, the prosecution has examined 45 witnesses i.e. PW-1 to PW-45.
PW-1 Harish Dabas deposed that deceased Yogesh was his elder brother and on 26.4.2002 at about 9: 00 P.M., he alongwith his deceased brother Yogesh went to Kanjhawala chowk, where One Om Pal s/o accused Ramesh who is resident of their village, met them at Kanjhawala chowk. He further deposed that Om Pal was on his motorcycle bearing registration no. DL 8SR 4864 and his deceased brother Yogesh told him that he had to go with Om Pal. Both Yogesh and Om Pal left towards Bawana and he came back to his residence. PW-1 deposed that thereafter, his brother deceased Yogesh never returned and later on, he learnt that his brother Yogesh was no more. His father and his brother later on went to the PS and identified the photographs of the dead body and its clothes to be of his deceased brother Yogesh.
PW-2 Satish Dabas deposed that on 27.4.2002, a dead body was found at Harveli Goushala in a canal and on 5.5.2002, he was called at PS 8 Bawana by the SHO who showed him, his father Shakti Singh, cousin Raghuvinder and his maternal uncle Sukhbir Singh, some photographs of the dead body. On seeing those photographs, they came to know that the photographs pertained to deceased Yogesh and he requested the SHO vide an application that he also intent to see the clothes of the deceased. SHO called for a pullanda from the custody of MHC (M) and showed him the clothes of the deceased. On opening the said pullanda, a shirt of yellow colour and blue jeans, a vest and underwear of white colour, a pair of shoes of Adidas were found and on seeing the said clothes, he informed the SHO that those clothes and shoes belonged to his brother Yogesh Kumar. His other relatives including his father also identified the said belongings to be of his younger brother Yogesh Kumar. PW-2 further deposed that Yogesh Kumar was missing from the house since the evening of 26.4.2002 and when he left the house, he was wearing the said clothes and shoes. However, some other articles i.e. golden chain, golden rings having mark-Y enscribed on them, a golden colour Titan wrist watch which he was wearing at the time of leaving his house were not in the pullanda. Deceased Yogesh Kumar was also having a mobile phone make Nokia with him when he left the house and the number of mobile was 9811587647. He also deposed that 9 SHO called the MHC (M) and directed him to seal the same and handed over the seal to one SI. PW-2 further deposed that on 30.8.2002, he was summoned in the court of Sh. Vinod Kumar, Ld. MM for identification of articles recovered from accused persons. The said articles included a golden chain with locket on which word Y was inscribed, one golden ring with Y inscribed and one golden wrist watch make Titan and one Nokia, bluish colour mobile phone and he correctly identified the said articles to be that of his deceased brother Yogesh Kumar. PW-2 has proved the aforesaid pair of shoes as Ex. P-1, the shirt of yellow colour as Ex. P-2, jeans pant as Ex. P-3, vest as Ex. P-4 and the underwear as Ex. P-5. He further proved the photographs as Ex. PW-2/1 to Ex. PW-2/6 and negatives of the same as Ex. PW-2/A1 to Ex. PW-2/A6. He has also proved the gold chain as Ex. P-8, gold ring as Ex. P-7 and mobile phone make Nokia as Ex. P-9.
PW-3 Sukhbir Singh deposed that deceased Yogesh was his sister's son and was missing since 26.4.2002 and he tried to trace the deceased in the house of his relatives but his whereabouts were not known. On 5.5.2002, he alongwith Raghvinder Singh his nephew went to Kanjhawala to the house of his 10 sister. Shakti Singh, his brother in law told him that he was called at PS Bawana. He alongwith Satish, Shakti and Raghvinder Singh went to PS Bawana, where SHO, PS Bawana showed them the photographs of a dead body which was found on 27.4.2002. After seeing the photographs, they found that it was the photographs of the dead body of deceased Yogesh and thereafter, Satish moved an application before the SHO requesting him to show the clothes of deceased. The clothes were shown to them and they identified the said clothes i.e. yellow shirt, pair of Adidas shoes, jeans pant, underwear and vest of Jockey and one handkerchief to be of the deceased Yogesh. PW-3 has proved the clothes, pair of shoes as Ex. P1 to Ex. P-5 and also proved the photographs Ex. PW-2/A1 to Ex. PW-2/6 of deceased Yogesh.
PW-4 Satyadev deposed that he was registered owner of the motor cycle bearing no. DL8SR-4864 make Hero Honda-CVS black colour and his son Amardeep handed over the said motor cycle to Ompal on 23.4.2002. The motor cycle was not returned by Ompal and thereafter he reported the matter at P.S Kanjhawala on 27.4.2002. PW-4 further deposed that police officials came to his house and informed that his motor cycle was lying at P.S 11 Bawana . He identified the motorcycle and later on he obtained the said motorcycle on superdari. He has proved the said motorcycle as Ex. P-10.
PW-5 Amar Deep deposed that his father owned a motor cycle bearing registration no. DL8SR-4864 make Hero Honda -CVS black colour . On 23.4.2002, Ompal took the said motorcycle for some time but he did not return the said motorcycle and on 27.4.2002, his father lodged the report at P.S Kanjhawala and on the same day at about 4:30 P.M, one police official came at his house and informed that his motorcycle was lying at P.S Bawana and the said motorcycle was released on superdari later on.
PW-6 Shakti Singh deposed that on 26.4.2002, his son Yogesh had left the house with his younger son namely Harish who had left him at a crossing outside village. When his deceased son was having a talk with accused Ompal, his son Harish returned home and informed him that Yogesh had gone with accused Ompal. His son Yogesh never returned thereafter. When his son Yogesh did not return that night, he thought that he might have gone to visit his relation and might have over stayed there. Next day, a dead body was found in 12 the canal near village Harevali Gaushala. Accused Ramesh brought the dead body at his house claiming it to be of his son Ompal. He further deposed that on 5.5.2002, Insp. K.G. Tyagi, SHO PS Bawana called him and he alongwith his brother in law namely Sukhbir Singh, one Raghuvinder and his son Satish went to PS Bawana at about 10:30-11:00 a.m. SHO showed them the photographs of dead body which was recovered from near the canal at village Harevali Goushala and when he saw the photographs, he was shocked to see the same were of his deceased son Yogesh and the said photographs were Ex. PW-2/1 to Ex. PW-2/6. PW-6 further deposed that his son Satish moved an application for showing the clothes of the dead body. SHO called the MHC (M) who brought a bag and a blue jeans, yellow shirt and blue white pair of Adidas shoes, a white baniyan and a Jockey underwear were found and they identified the said clothes to be of his deceased son Yogesh who was wearing those when he left the house on 26.4.2002. However, some of the articles which his son was wearing i.e a gold colour watch, two gold rings on which 'Y' was inscribed, a gold chain with a locket of word 'Y' and one Nokia cellphone were all missing. The SHO informed him that a Sim card no.9811587647 was found near the dead body and the said number was used by his deceased son. PW-6 13 has proved the aforesaid shoes and clothes as Ex. P-1 t o Ex. P-5 and he has also proved the wrist watch Titan gold colour as Ex. P-6, two gold rings with 'Y' inscribed as Ex. P-7, gold chain as Ex. P-8 and one mobile phone make Nokia as Ex. P-9 and deposed that all these articles belonged to his son which he was wearing on his person, when he left the house.
PW-7 Amit deposed that he knew Ajay , Atul and Yogesh. He further deposed that he was having a SIM card no. 9811486520 and he used to use the said SIM card by borrowing mobile instruments from his friends and on 28.4.2002 he used his SIM card in the mobile phone of Ajay Dabas and the said SIM card was seized by the police vide memo Ex. PW-7/A. PW-8 Ajay Dabas resiled from his earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl.PP. In his cross examination by the Ld. Addl.PP, PW-8 denied the suggestion that one year prior to the incident there was any quarrel between deceased Yogesh and accused Atul or that the matter was later on compromised. He further denied that about 25 days prior to 05.5.2002, he had seen any quarrel between 14 Yogesh and accused Atul outside his shop and they were threatening to kill each other or that accused Atul inflicted a blow by a scissor on the shoulder of deceased Yogesh. He also denied the suggestion that he intervened and pacified both of them and they went to their respective homes. In his cross examination by the Ld. Addl. PP, PW-8 was confronted with the statement Ex. PW-8/A and he denied the contents of the same. PW-8 denied that he was not deliberately identifying the photographs of Yogesh being the relative of the accused Atul . He also denied the suggestion that he was deposing falsely, being won over by the accused persons.
PW-9 Ramchander deposed that he was having a mobile phone bearing no. 9811312592 and deceased Yogesh was his friend and were on visiting terms with him. On 26.4.2002, deceased Yogesh came to his house on a motor cycle of Black colour CVZ, Hero Honda bearing no. DL8SR-4864 and he was accompanied by another boy to whom Yogesh was addressing as Ompal and deceased Yogesh told him that he had come to the house of maternal uncle as he was in need of money. At about 2:00 P.M he left alongwith his friend Ompal. PW-9 further deposed that about 15-20 days prior 15 to 26.4.2002, deceased Yogesh rang and told him that he had a quarrel with accused Atul and that he received a scissor blow on his shoulder and he went to meet him at village Kanjhawala. PW-9 further deposed that on 05.5.2002 he was called by police and they showed him the photographs of a dead body which he identified to be that of deceased Yogesh and he also saw the motorcycle at P.S and he identified it to be the same on which Yogesh and Ompal had come to his house on 26.4.2002. He further deposed that before coming to his village on 26.4.2002, deceased Yogesh made a call on his mobile phone from mobile no. 9811587647 and his mobile phone no. 9811312592 was also seized by the police vide memo Ex. PW-9/A and he has identified the said mobile phone as Ex. P-11.
PW-10 Ct. Ramesh deposed that on 15.5.2002, he joined the investigation with SI Ramesh, Ct. Chandra Prakash and went to Manali in a private vehicle with accused Atul, who led them to hotel Regent Center, Point Club Road Manali, where SI Ramesh Singh gave a notice to the receptionist u/s-91 Cr. PC to produce some documents and on 16.5.2002, the receptionist handed over to the IO a photocopy of the entry register of relevant time and 16 one copy of cash receipt and IO recorded the statement of receptionist Gulshan u/s 161 Cr. PC and seized the above mentioned documents vide memo Ex. PW-10/A. PW-10 proved the aforesaid daily occupancy report of 01.5.2002 and 02.5.2002 as Ex. PX1 and PX2 respectively. PW-10 further deposed that accused took them to a shop of photographer namely Sonu Sharma, who had taken photographs of accused and his friends and the IO showed him the photographs of accused Atul with his three friends and Sonu Sharma identified the said photographs to be taken by him of accused Atul and his three friends.
PW-11 Naresh Kumar deposed that he owned a SIM Card of Dolphin bearing no. 9868204143 and he handed over the said SIM card to SHO P.S Bawana on 05.5.2002 vide memo Ex. PW-11/A and he has proved the said SIM card as Ex. P12.
PW-12 Dinesh Kumar deposed that on 26.4.2002, he had gone to Sonipat at the house of his sister in his Alto car no. DL 2CR 2745 and when he was returning to his house at about 9:00 P.M., he had reached Bawana and met 17 deceased Yogesh at a Pan shop and he asked him why he was standing there and he told him that he was with Ompal, a boy from his village who was standing nearby and that they were waiting for someone. Deceased Yogesh told him that he would come later on and that he should leave and he returned to his house. Later on, he came to know that deceased Yogesh was missing since 26.4.2002 and he informed Shakti Singh, father of deceased about above fact. He further deposed that on 11.5.2002, he was in the house of his Bua i.e. mother of deceased Yogesh and at about 12 Noon, two police officials from PS Bawana come to the house of his Bua and asked that anyone who was conversant with the identity of assailants should come to the PS and he went to PS Bawana as his uncle, aunt and family members were in the state of shock. PW-12 deposed that at about 2:30 P.M., he left the PS with police party and they reached Sonipat at about 3:30 P.M. at the house of PW-Suresh who told the police that accused Atul, Naveen, Rajesh and Ompal had come to his house on 29/30.4.2002 at night and they were requesting for some money as they were going to Manali and were in shortage of money. Suresh had given them some money and thereafter they left for Manali and returned back on 5/6.5.2002. Thereafter, he and police officials went to trace other accused persons. PW-12 18 further deposed that at about 6:30 P.M., they reached bus stand, Sonipat and they found accused Atul, Naveen and Rajesh waiting for the bus for Delhi and he pointed out towards accused Atul, Naveen and Rajesh and they were brought on one side of bus stand and were interrogated separately and they all made separate disclosure statements and their personal search was conducted after their arrest. PW-12 has proved the said disclosure statements as Ex. PW-12/A, Ex. PW-12/B and Ex. PW-12/C, arrest memos as Ex. PW-12/D, Ex. PW-12/E and Ex. PW-12/F and the personal search memos as Ex. PW-12/G, Ex. PW-12/H and Ex. PW-12/I respectively and deposed that all three accused persons were then taken to the house of Suresh and got recovered the photographs which they had got snapped at Manali and the said photographs were taken into possession vide memo Ex.PW-12/J. PW-12 has proved the said the photographs as Ex. PW-12/K, Ex. PW-12/L and Ex. PW-12/M. PW-12 Sh. Dinesh further deposed that on 11.5.2002, after the arrest of accused Atul, Rajesh and Naveen, their personal search was conducted and they were taken to the side of bus stand from where they were arrested. On conducting the formal search of accused Atul Dabas, one mobile phone make Nokia gray colour was recovered from his right side pocket of pant and one 19 locket with gold chain was removed by accused Atul Dabas from his neck and the same was handed over to the police and he told the police that the said articles i.e. mobile phone and locket with gold chain belonged to Yogesh (since deceased). On the aforesaid locket, alphabet 'Y' was engraved. PW-12 deposed that said mobile phone and locket with gold chain were taken into possession vide seizure memo Ex. PW-31/D. On conducting the formal search of accused Rajesh, he handed over one gold ring to the police after removing the same from the finger of his hand and on the said ring alphabet 'Y' was engraved and accused Rajesh told the police that the said ring belonged to Yogesh (since deceased) and the said gold ring was taken into possession vide seizure memo Ex. PW31/E. PW-12 also deposed that on conducting the formal search of accused Naveen, he handed over one wrist watch make Titan with golden chain to the police after removing the same from his wrist and accused Naveen told the police that the said wrist watch belonged to Yogesh (since deceased) and the said wrist watch was taken into possession vide seizure memo Ex. PW31/F. PW-12 has proved the aforesaid wrist watch as Ex. P-6, gold ring as Ex. P-7, gold chain with locket as Ex.P-8 and mobile phone make Nokia as Ex. P-9. 20
PW-13 Mahavir Kaushik deposed that on 27.4.2002, he was informed by his workers of Gaushala that a dead body was lying at the corner of canal near their Gaushala and he informed the police in this regard from his telephone No. 27755599.
PW-14 Sanjay Kumar deposed that on 27th of a month, two or two and a half years ago, he had visited the spot where the dead body was lying and he took about 14 photographs and he has proved the said photographs as Ex. PW2/1 to 6 and Ex. PW-14/1 to 8 and their negatives as Ex. PW-14/9.
PW-15 Jai Bhagwan resiled from his earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl.PP. In his cross examination by the Ld. Addl.PP, PW-15 stated that his statement was not recorded by police. He denied the suggestion that he had deliberately destroyed the record maintained by him so as to save the accused persons. He further denied the suggestion that on 12.5.2002, accused Atul Dabas, Rajesh and Naveen came at his STD booth and had telephoned from there with his co-accused. In his cross examination by the ld. Addl.PP, 21 statement Mark 15/A was read over to this witness and he denied the contents of the same. PW-15 further denied the suggestion that accused Rajesh, Atul and Naveen were accompanying the police, when the documents were prepared. He also denied the suggestion that he have been won over by the accused persons and for that reason, he was deposing falsely.
PW-16 Sonu Sharma resiled from his earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl.PP. In his cross examination by the Ld. Addl.PP, PW-16 denied that when the police arrived at his shop, the owner of the shop called him at the shop. He further denied that he went with the four boys to Madi on 03.5.2002. He also denied the suggestion that besides accused Atul other accused persons namely Rajesh and Naveen Dabas were also present on 03.5.2002 or had taken him to Madi. On seeing the photographs Ex. PW-12/ K & M, this witness i.e PW-16 said that accused Naveen and Rajesh were not shown in the said photographs and he denied the suggestion that the photograph Ex. PW-12/M the boy sitting in the middle was accused Rajesh. PW-16 also denied the suggestion that he was deliberately not identifying the photograph of accused Rajesh and was 22 deposing falsely.
PW-17 Sanjay also resiled from his earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl.PP. In his cross examination by the Ld. Addl.PP, PW-17 was confronted for his statement Mark- PW-17/A and he denied the contents of the said statement. PW-17 denied the suggestion that SHO showed him some photographs or that he had identified the said photographs to be of deceased Yogesh and after seeing the photographs Ex. PW2/2,3,4,6 this witness stated that he can not identify the photographs of dead body as there was mud on the face . He denied the suggestion that the face of the dead body was clear or that he was deliberately not identifying the said photographs. He also denied the suggestion that he was deliberately wrongly identifying the photographs. PW-17 denied the suggestion that one SIM Card bearing no. 9811019176 was handed over by him to police and he had told police that he had used mobile handset make Nokia with IEMI No. 35060610136970 by inserting SIM Card No. 9811019176. He also denied the suggestion that he was deposing falsely as he had mixed up with accused persons , being residents of his native 23 village.
PW-18 Kulshan Kumar deposed that on 16.5.2002, while he was on duty police came to him at the hotel and they asked for relevant record of the hotel from him i.e occupancy register, cash receipts and entry register and the said record was seized by police vide memo Ex. PW-10/A and he has proved the said record as Ex. PX-1 and PX-2. PW-18 further deposed that as per entry no. 454, one Rajesh checked in the hotel on 01.5.2002 and checked out on 03.5.2002 and they were four persons in number and were allotted room no. 205 and that accused Atul was accompanying the police.
PW-19 Gulshan Kumar resiled from his earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl.PP. In his cross examination by the Ld. Addl.PP, PW-19 denied the suggestion that he maintained the call register or that he had mixed up with the accused persons and was deposing falsely. He further denied the suggestion that Atul had made call to one Ompal on 26.4.2002 at 10:17 P.M. He also denied the suggestion that on 12.5.2002, police had brought accused Atul, 24 Naveen and Rajesh at his booth and the accused persons pointed out and stated that they had made the aforesaid call to Ompal. PW-19 was read over the statement Mark-19/A and he denied having made the same to the police. He also denied the suggestion that he was deposing falsely, being being won over by the accused persons.
PW-20 HC Ram Chander deposed that on 27.4.2002, he was posted as duty officer at P.S Bawana and on that day at about 5:10 P.M, he received a rukka sent by SI Ramesh Singh through Ct. Shri Om and on the basis of the said rukka, he recorded the FIR No. 120/02 of this case and he has proved the carbon copy of the same as Ex. PW20/A. PW-20 further deposed that he also recorded the DD no. 16A regarding the registration of the FIR and on 28.04.2002 he received a sealed parcel sealed with the seal of MS BJRM hospital which included the clothes of the deceased vide seizure memo Ex. PW-20/B and he deposited the case property in the Malkhana on the same day itself.
PW-21 Dr. B.N.Acharya CMO BJRM Hospital Delhi deposed that 25 on 28.4.2002, he alongwith Dr. R.K.Punia conducted the postmortem on the dead body of Ompal and he has proved his detailed report in this regard as Ex. PW-21/A. PW-22 HC Bala Devi deposed that 27.4.2002, she was working as DO at P .S Bawana and on that day at about 8:23 P.M, she received a call regarding an abandoned motorcycle bearing no. DL8SR-4864 from HC Satpal vide DD No. 5A and she has proved the said DD as Ex. PW-22/A. PW-22 further deposed that on the same day at about 1:58 P.M, another call was received regarding a dead body lying near Hareveli Gaushala Nahar vide DD No. 12A and she has proved the said DD as Ex. PW-22/B. PW-23 Insp. Rajbir Singh deposed that on 27.4.2002, he was posted as Addl. SHO, PS SP Badli, however he was also looking after the work of SHO PS Bawana who was on leave on that day. At 1:58 P.M., he was apprised of DD No.12A, PS Bawana and he reached the spot near Gaushala, Harewali village, west Yamuna Canal, Delhi, where a dead body of a boy of 20-22 years was lying in the canal. The dead body uptill its waist was inside the water and 26 there was a helmet on the head of the dead body and it was of black colour having blood stains. PW-23 saw a white colour handkerchief tied around neck and also noticed two fire arm injuries one above the left eye in the forehead i.e. above the eye brow and other an entry wound on the left side of neck and exit would on right side of the neck. He further deposed that body was having a yellow colour shirt, navy blue colour jeans, white banian, Jockey underwear, shoes of Adidas company and he inspected the place near the dead body and found blood on the bank of canal and also on the sarkanda lying near the dead body on the bank of canal. He also found one black colour purse having pages of diary and also one Sim card. PW-23 summoned the crime team and the photographer at the spot and he got the spot photographed. He seized earth control, blood stained earth, black helmet, Sarkanda, purses with diary and some documents in it, a Sim card from the spot vide memos Ex. PW-23/A, Ex. PW- 23/B, Ex. PW-23/C and Ex. PW-23/D. PW-23 further deposed that dead body was of an unidentified person so efforts were made to identify the dead body and he also got the inspection of the motorcycle bearing no. DL 8SR 4864 conducted by the crime team which was deposited in the Malkhana as abandoned u/s- 66 DP Act. Crime team found blood on its shocker and the 27 blood from the shocker of the motorcycle was lifted and was seized by him vide memo Ex. PW-23/D. PW-23 further deposed that on 28.4.2002, accused Ramesh Kumar came alongwith his nephew Suraj Prakash and 2-3 other villagers to the PS and suspected that the dead body may not be of his son Ompal. He went to BJRM hospital mortuary with Ramesh accused and others where the dead body was shown to them and accused Ramesh and others saw the dead body carefully and identified it as to be of Ompal, his son. PW-23 prepared the inquest papers Ex. PW-23/E, Ex. PW-23/F and Ex. PW-23/G and also recorded the statements regarding identification which were Ex. PW-23//H & Ex. PW-23/I. The postmortem was got conducted and thereafter, the dead body was handed over to accused Ramesh on 28.4.2002. PW-23 has proved the SIM Card recovered from the spot as Ex. P-13 and deposed that same was seized vide memo Ex. PW-23/C. PW-23 has also proved the aforesaid helmet as Ex. P-14, black colour leather purse as Ex. P-15, earth control as Ex. P-16, blood stained earth as Ex. P-17 and sarkanda/wooden stick stained with blood as Ex. P-18. PW-23 also deposed that on 28.4.2002, he reached village Kanjhawala and he came to know that 3-4 boys of the village were missing. He interrogated one Ajay S/o 28 Satbir Singh who told him that Ompal was seen with one Yogesh going on a motorcycle on 26.4.2002. He told him that his mobile phone no. 9811587647 was in the possession of Yogesh who had borrowed the mobile phone being a friend and accordingly on 29.4.2002, PW-23 sent Ct. Dharmender to the office of Essar Phones to get a print out of mobile phone no. 9811587647, who brought the print out of the said mobile phone. He perused the mobile record and thereafter, he left the investigation and reported back to his PS. PW-23 has proved the details of calls of mobile no.9811587647 from the period of 20.4.2002 to 29.4.2002 as Ex. PW-23/X and deposed that dead body was handed over to Ramesh Chand after postmortem vide memo Ex. PW-23/Y and the same was taken by accused Ramesh Chand as of his son Ompal.
HC Krishan Kumar has been examined as PW-24 as well as PW-26 and he deposed that DD No. 13A dated 05.5.2002 P.S Bawana was recorded by him and he has proved the correct copy of the same as Ex. PW-26A. He further deposed that record also contain DD no. 14A and Ex. PW-26/B was the correct copy of the same.
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PW-25 SI Manohar Lal deposed that he alongwith Insp. Rajbir Singh visited the spot at Western Yamuna Canal, near Gopal Gaushala, village Harevali and the instance of Insp. Rajbir, he took rough notes and measurement and on the basis of rough notes, he prepared the site plan Ex. PW-25/A. PW-27 ASI Brijeshwar Kumar deposed that on 27.4.2002, he was posted with police control room and on that day a call was received that a dead body was lying near the canal near Haraveli Gaushala and the said information was recorded by him and the same was forwarded for further action . He further deposed that original PCR form has been destroyed vide order no. 28720-59/G-II PCR dated 22.9.04.
PW-28 Kishore Kumar deposed that as per original registration record, Maruti Car bearing No. DL8C-D5284 was in the name of Dharambir Singh R/o H. No. 299 Kanjhawala Delhi and he has proved the photocopy of the certified record maintained by the office as Ex. PW-28/A. 30 PW-29 W/HC Saroj Bala deposed that on 27.4.2002, she was posted at PS Kanjhawala as a DO and on that day, one person namely Satya Dev S/o Tara Chand handed over one application to her regarding a motor cycle having been borrowed from his son and he handed over the application to HC Bajrang Lal.
PW-30 Ct. Shri Om deposed that on 27.4.2002, he joined the investigation of this case with SI Ramesh and reached the spot i.e Arawali Nahar near Gopal Gaushala , there one rukka was handed over to him by the SI Ramesh for getting the FIR registered at P.S Bawana and he went to the PS and got the FIR registered and returned to the spot with the copy of FIR and original rukka and handed over the same to the Insp. Rajbir.
PW-31 SI (Retd.) Ramesh Singh deposed that on 27.4.2002, on receipt of DD No.12 A ( Ex. PW-22/A ) at about 1:58 P.M, he alongwith Ct. Sukhpal went to Harevali Goushala canal, where, he found a dead body of a young boy, whose half portion was inside the canal and half portion was outside the canal. The body was having bullet injuries and he called a private 31 photographer Sanjay from Chandan Photo Studio and in the meantime, SHO also arrived at the spot. Then on the DD, he made the endorsement Ex. PW-31/A and send the tehrir through Ct. Shriom and after registration of the case at PS Bawana, he came back at the spot and asal tehrir and copy of the FIR were given to the SHO for further investigation. PW-31 further deposed that SHO seized earth control, blood stained earth control, one blood stained sarkanda and one helmet which was worn by the deceased vide memos Ex. PW-23/A to Ex. PW-23/C. Photographer took the photographs of the spot as per directions of the IO and Crime team Insp. Subhash Chand also came at the spot and inspected the spot. PW-31 deposed that SHO prepared the proceedings u/s 174 Cr. PC and a motorcycle no. DL 8 SR 4864 which was standing abandoned at Tehsil ground, Bawana was taken into possession vide memo Ex. PW-31/B and said motorcycle was also inspected and the blood found on its shocker was lifted by the SHO vide Ex. PW-23/D. PW-31 further deposed that on 5.5.2002, he joined the investigation with SI Mukesh Kumar and Insp. K.G. Tyagi, SHO Bawana, PW-2 came to the PS and moved an application for showing the clothes and photographs of the dead body recovered from canal and PW-2 Satish Kumar identified the clothes 32 as belonging to his brother Yogesh Kumar. PW-2 was also shown the photographs of the dead body and he identified the photographs to be of his brother Yogesh Kumar. PW-31 also deposed that on 05.5.2002, Ct. Naresh handed over one Sim Card to SHO and the same was taken into possession vide memo Ex. PW-31/C and the number of the said SIM Card was 9868204143 and he has proved the said SIM Card as Ex. P-12. PW-31 further proved the mobile phone make Nokia of blue colour as Ex. P-25, SIM Card no.9811019176 of Speed Mobile Services as Ex. P-26, SIM Card of Speed Cellular Services as Ex. P-27, mobile phone make Trium of sky blue colour as Ex. P-28 and mobile phone make Panasonic and the Sim card as Ex. P-29 (colly.). Thereafter, PW-31 joined the investigation with Insp. K.G. Tyagi on 11.5.2002 alongwith SI Umed Singh, HC Shiv Kumar, HC Umender, Ct. Raju and went to Sonipat for investigation and reached at the house of mausa of accused Atul Dabas, namely Suresh and thereafter, they went to Sonipat bus stand and Dinesh, who was also with them pointed towards the three standing persons and identified them as accused Atul, Rajesh and Naveen and all the three accused persons were arrested vide arrest memos Ex. PW-12/D, Ex. PW-12/F and Ex. PW-12/E and their personal search was taken vide memos Ex. 33 PW-12/I, Ex. PW-12/G and is Ex. PW-12/H and they were interrogated and their disclosure statements were recorded vide Ex. PW-12/A to Ex. PW-12/C. PW-31 deposed that accused Atul produced a golden chain with locket 'Y' (Ex.P-8) and a mobile phone make Nokia ( Ex. P-9) and the same were taken into possession vide memo Ex. PW-31/D. He further deposed that the ring (Ex.P-7) recovered from accused Rajesh and Titan wrist watch ( Ex. P-6 ) recovered from accused Naveen were also seized vide Ex. PW-31/E and Ex. PW-31/F and all the accused made disclosure statements and led them to the house of Atul's Mausa i.e. Suresh, who produced three photographs ( Ex. PW-12/K to Ex. PW-12/M) which were taken into possession vide memo Ex. PW-12/J. PW-31 also deposed that on the next day, all the accused persons pointed out the place of incident i.e. Gaushala, Harevali Nehar vide pointed out memo Ex. PW-31/G to Ex. PW-31/J and they also pointed out the place of Tehsil ground where they have parked the motorcycle no. DL 8SR 4864 vide memo Ex. PW-31/K to Ex. PW-31/M and accused persons also pointed out the STD booth of telephone nos.7751435 and 7751630 vide memo Ex. PW-31/N1 to Ex. PW-31/N3 and Ex. PW-15/A to Ex. PW-15/B respectively. PW-31 deposed that on 15.5.2002, he took accused Atul, who was on police remand to 34 Manali and there he served a notice u/s 91 to the owner of Regent Centre Point, Manali and the owner produced the photocopy of register, Daily Occupancy's register and pay bill and also identified accused Atul in his presence. He further deposed that on 22.5.2002, Naresh Kumar s/o Ganesh produced a mobile set make Panasonic which was seized vide memo Ex. PW-31/R and he has proved the said mobile phone as Ex. P-30.
PW-32 Ct. Nawab Singh deposed that on 01.8.2002, he took the duly sealed case property as per Road Certificate No. 61/21 from MHC(M) to FSL , Malviya Nagar and after due acknowledgment from the FSL official, he deposited the copy of the RC to the MHC (M).
PW-33 Ct. Sukhpal Singh deposed that on 27.4.2002 on receipt of DD NO. 12A, he alongwith SI Ramesh went to Harawali Nehar near Gaushala in the area of P.S Bawana, where a dead body was lying in the Nehar. Thereafter SHO also came at the spot and conducted the further proceedings and after completing all the proceedings he alongwith dead body and other officials came back to the P.S and dead body was sent to BJRM Hospital 35 mortuary for postmortem under his guard. PW-33 further deposed that on 28.4.2002 SHO Insp. Rajbir Singh got conducted the postmortem on the dead body and hospital officials handed over to him sealed pullandas containing bullet, blood sample and sample seal which he further handed over to duty officer vide memo Ex. PW-33/A and he also handed over the clothes of the deceased in one pullanda to DO vide memo Ex. PW-33/B. PW-34 SI Mukesh Kumar deposed that on 05.5.2009, he joined the investigation of the present case and on that day in the P.S, Shakti Singh, Satish Kumar and Raghuvinder Singh were called by the Insp. K.G. Tyagi and showed them the photographs of the deceased in the present case for identification and after seeing the two photographs of the dead body, they identified the photographs to be of Yogesh son of Shakti Singh. Thereafter Satish Kumar brother of the deceased Yogesh Kumar moved an application to see the belongings and clothes of Yogesh and the said clothes i.e one jeans , one shirt of yellow colour, one baniyan white colour , one underwear, one pair of shoes were shown to them and Shakti Singh and Satish Kumar identified those clothes and shoes to be the same which the deceased Yogesh was wearing 36 when he lastly left his house on 26.4.2002. Thereafter the clothes and shoes of the deceased alongwith other articles were sealed in the same pullanda by the IO with the seal of KGT and deposited in the malkhana. PW-34 further deposed that on that day Insp. K.G Tyagi had called several persons regarding the investigation of this case at P.S. One public person Naresh Kumar handed over one SIM Card of Dolphin company and one Sanjay handed over one mobile handset which were also taken into possession vide memo Ex. PW-31/C and Ex. PW-17/A. Another public person Amit Dabas handed over Sim card of Hutch Company, Ajay Dabas handed over mobile phone handset make Trium, Ram Chander handed over one mobile phone set make Panasonic and one sim card of Hutch company and one Sanjay also handed over hand set and all the above mentioned articles were seized vide memo Ex. PW-7/A, Ex. PW-8/B, Ex. PW- 9.A and 17/B respectively. PW-34 further deposed that on 30.7.2002, he again joined the investigation with the IO Insp. K.G.Tyagi and left in a Govt. vehicle in search of accused Ramesh Chander and on the pointing out of the informer, accused Ramesh Chander was apprehended by the IO and was arrested vide arrest memo Ex. PW-34/A and his personal search was taken vide memo Ex. PW-34/B and his disclosure statement Ex. 37 PW-34/C was also recorded.
PW-35 Ram Hari Singh Sub Divisional Engineer Mobile Service , Dolphin produced the summoned record of the mobile phone no. 9868204143 from dated 12.4.2002 to 30.4.2002 and proved the call details as per Dolphin services as Ex. PW-35/A. PW-36 Jyotish Ch. Moharana Executive, Vodafone/Essar have proved the call details pertaining to mobile phone no. 9811056059 w.e.f. 01.4.2002 to 01.5.2002 issued by his office as Ex. PW-36/A. He further proved the call details record pertaining to mobile phone no. 9811587647 from the period 20.4.2002 to 29.4.2002, call details pertaining to mobile phone no. 9811312592 from the period 01.4.2002 to 01.5.2002, call details pertaining to mobile phone no. 9811486520 from the period 01.4.2002 to 03.5.2002 as Ex. PW-36/B, Ex. PW-36/C and Ex. PW-36/D respectively. PW-36 further stated that as per the letter Ex. PW-36/E the record of the call details from 12.4.2002 to 30.4.2002 was not available in their system and as per DOT Guidelines dated 12.8.2002 they were to archive CDRs for one year only. PW-36 also 38 proved the record regarding the ownership of the aforesaid mobile phone nos. 9811312592,981158777,9811056777,9811490451,981156059 and 9811587647 as Ex.PW-36/F ( colly.).
PW-37 Insp. K.G. Tyagi is the main IO of this case and he deposed that on 01.05.2002, he received the investigation of the present case from Insp. Rajbir Singh, the then officiating SHO P.S Bawana and thereafter, he carried out the investigation and collected the call details from Essar, Dolphin, Air tel and some other companies through his staff pertaining to mobile phone number which was recovered from the spot and on 2.5.2002, he alongwith Insp. Rajbir Singh and Draftsman went to the place of occurrence where the draftsman took the measurements and prepared rough notes at the instance of Insp. Rajbir Singh and also prepared site plan and on the same day he went to village Kanjhawala where he came to know that 3-4 boys from village Kanjhawala were missing from their houses from 26.4.2002. PW-37 further deposed that on 04.5.2002, he again visited village Kanjhawala and served notice u/s 160 Cr. PC to some witnesses including those whose phone numbers/IMEI numbers were found in the call details of the mobile recovered from the spot including Harish Dabas, 39 brother of Yogesh. On 5.5.2002, the said witnesses came to PS Bawana and they were interrogated by him and they also handed over their respective mobile phones and Sim cards. He has proved the seizure memo in respect of Sim card handed over by Naresh, Sim card handed over by Sanjay, Sim card handed over by Atul Dabas, hand-set make triam handed over by Ajay Dabas, mobile hand set make Panasonic and one Sim card handed over by Ram Chander and mobile phone hand set make Nokia of grey and silver colour handed over by Sanjay as Ex. PW31/C, Ex. PW-17/A, Ex. PW-7/A, Ex. PW-8/B, Ex. PW-9/A and Ex. PW-17/B respectively. He also deposed that on 5.5.2002, Shakti Singh, Satish Dabas, Dinesh and Sukhbir came to the police station after receiving the notice u/s 160 Cr. PC and during the investigation, they asked him to show the photographs of dead body and after seeing the photographs, they identified the photographs of deceased Yogesh and they also requested to show the belongings of deceased and Satish, brother of Yogesh moved an application (Ex. PW-37/A) to show the ornaments and belongings of deceased and he directed the MHC (M) to took out the case properties and thereafter the clothes and belongings were identified to be of deceased Yogesh by father and brother of deceased and other relatives. PW-37 deposed that the articles were re-sealed 40 in a pullanda with the seal of KGT and the case properties were deposited in the Malkhana and he made entry regarding these proceedings in Malkhana vide DD entry No.13A (Ex. PW-26/A). He also made entry regarding the proceedings in the Malkhana vide DD No.14A (Ex. PW-26/B) and recorded the statements of witnesses in this regard. PW-37 further deposed that on 6.5.2002, he recorded the statements of Harish and Dinesh in which they told that they lastly saw Yogesh with Ompal on 26.4.2002. He further deposed that on 11.5.2002, he alongwith SI Mukesh, SI Umed, SI Ramesh Kumar and other staff and a public man i.e relative of Shakti Dabas, namely Dinesh and other staff, on specific information of Dinesh, went to Sonipat regarding the search of accused Ompal, Atul Dabas, Naveen Dabas and Rajesh Dabas and at about 4:30 P.M, they reached Sonipat at the residence of Suresh Gehlot, relative of Atul Dabas and came to know that accused persons had gone to Manali and they came to know that they will come back in Sonipat. Thereafter, he alongwith his staff and the publicman started to search the accused persons and on the pointing out of Dinesh, he apprehended accused Atul, Rajesh and Naveen from Sonipat bus stand and the said accused persons were interrogated by him and he has proved the arrest memos of accused Atul Dabas, Naveen Dabas and Rajesh Dabas as 41 Ex. PW-12/B, Ex. PW-12/B and Ex. PW-12/F and their personal search memos as Ex. PW-12/I, Ex. PW-12/H and Ex. PW-12/G respectively. He has also proved the disclosure statements of accused Atul, Rajesh and Naveen as Ex. PW-12/A, Ex. PW-12/B and Ex. PW-12/C and deposed that mobile phone hand set make make Nokia and locket with chain given by accused Atul Dabas, gold ring on which 'Y' was inscribed given by accused Rajesh and Titan wrist watch produced by accused Naveen were taken into possession vide memo Ex. PW-31/D, Ex. PW-31/E and Ex. PW-31/F respectively. He also deposed that accused Atul led them to the house of his relative Suresh Kumar and got recovered three photographs, which were taken into possession vide memo Ex. PW-12/J and thereafter they searched for accused Ompal on different places, however they could not find any clue about him on that day. PW-37 deposed that on 12.5.2002, accused persons pointed out the scene of crime near canal at village Harevali, Delhi vide pointing out memos Ex. PW-31/G, Ex. PW-31/H and Ex. PW-31/J and they also pointed out the place of Tehsil ground Bawana where they left the motorcycle which was used in the commission of offence vide memos Ex. PW-31/K, Ex. PW-31/L and Ex. PW-31/M and also pointed out the STD booth situated at Kanjhawala Bawana road from where they made 42 call to his associate Ompal, as Ex. PW-31/N1 to Ex. PW-31/N3 respectively. PW-37 deposed that the further investigation of this case was entrusted to him and on 29.6.2002 and he obtained the process u/s 82/83 Cr. PC pertaining to accused Ompal from the court of Ld. MM and on 30.7.2002, accused Ramesh Chander was interrogated and arrested by him in this case vide arrest memo Ex. PW-34/A and personal search memo Ex. PW-34/B and he made the disclosure statement as Ex. PW-34/C. He also deposed that case properties were deposited in the Malkhana intact and later on sent to FSL and after completion of the investigation, charge sheet was prepared and filed in the court. PW-37 further deposed that he collected the FSL results (Ex. PW-37/PX and Ex. PW-37/PY) and filed in the court. During the course of the investigation, he also got conducted the judicial TIP of the case properties and after filing of the charge sheet pertaining to the above mentioned accused persons, accused Ompal was got declared Proclaimed Offender and he filed supplementary charge sheet (Ex. PW-37/PXZ) against him. Subsequently, PW-37 came to know that a car no.5284 which was used in the present incident was deposited in the Malkhana of PS Nazaf Garh in case FIR No.592/02 and he took the photographs of register no.19, seizure memo of car, FIR No.592/02 in this regard. PW-37 43 deposed that later on, he received information that a case FIR No.299/03 of PS Sadar Bahadurgarh, Haryana was registered regarding the murder of Ompal s/o Ramesh Chander, who was wanted in the present case and he made further investigation in this regard from the concerned IO and after obtaining the relevant documents, he filed the supplementary charge sheet u/s 173 (8) Cr. P. C in the court.
PW-38 SI Ranbir Singh ( Retd. ) deposed that on 13.06.2003, he was posted as ASI Incharge Police Post Aasoda, P.S Bahadur Garh Sadar, District Jhajhar and on that day he received the information from one public person Naresh son of Bhagwan Singh of village Mandothi that a dead body of a male person was lying by the side of the canal near tree of Pahari Kikar and accordingly, he went at the spot and called a private photographer who took the photographs of the dead body. He further deposed that said dead body was having wrist watch of black strap tied on the left hand and was bearing a badami colour underwear, white colour baniyan and red colour T-shirt and the said dead body was partially decomposed but his face was clearly visible and he prepared the inquest proceedings and thereafter dead body was sent to PGI 44 Rohtak for postmortem.
PW-39 Insp. Surender Singh Rathi deposed that on 16.10.2002, he was posted at P.S Nazaf Garh as SI and on that day on receipt of copy of DD, he reached at the spot and found two cars i.e one Maruti 800 DL-8CD-5284 and one another Maruti car and came to know from SI Bal Kishan that the two injured criminals were already sent to Rao Tula Ram Hospital, Jafarpur and two other criminals were in the custody of the staff of the operation cell and their names were revealed as Krishan Gulia and Sandeep Malik. PW-39 further deposed that he seized the aforesaid car and reached the Rao Tula Ram Hospital, where he came to know that both the injured were declared dead and the names of the injured were revealed as Mandeep and Vivek @ Vicky. PW-39 also deposed that above named cars were deposited in the malkhana vide entry no. 2262 ( Ex PW-39/A) in register no. 19 and stated that the photographs of the above mentioned car bearing no.DL-8CD-5284 of Maruti
-800 were marked as PW-39/A-1 to A-12 and its RC was Ex. PW-39/B. He also proved the entry in the register of the CBI regarding the deposit of the above mentioned car and the copy of tracing the number as Ex. PW-39/C and 45 Ex. PW-39/D respectively.
PW-40 Rajini resiled from her earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl.PP. In her cross examination by the Ld. Addl.PP, PW-40 stated that she did not made any efforts to search his brother from the date he was missing. She denied that her statement was recorded by Insp. S.S.Soran and she signed some documents regarding the identification of the dead body through photographs before CIA staff in case FIR No. 299/03, P.S Sadar Bahadur Garh. In her cross examination by the ld. Addl. PP, PW-40 was confronted with her statement Mark- 40/A and she denied the contents of the same. PW-40 denied the suggestion that she turned hostile in that case because his father Ramesh was accused in the present case and was facing trial in this case regarding the wrong identification of the dead body of Yogesh to be of his son Om pal. She further denied the suggestion that due to above mentioned reasons she was not telling the true facts before the court, being the daughter of the accused Ramesh.
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PW-41 A.K.Srivastava Sr, Scientific Officer deposed that on 01.8.2002, he examined all the parcels containing exhibits and submitted Biological and Serological reports on 30.9.2002 and he has proved the said biological report as Ex. PW-37/PX and serological report as Ex. PW-37/PY.
PW-42 Dr. Vijay Pal Khanagwal have proved the postmortem report no. 2003/06/16 dated 14.6.2003 pertaining to the deceased unknown male person pertaining to DD No. 7 dated 13.6.2003 of PS Jhajhar prepared by Dr. Sanjeev Malhotra as Ex. PW-42/A. PW-43 Dy. S.P. Satyavir Singh Soran deposed that on 06.10.2004 he was posted as Insp. CIA Staff Bahadurgarh and on that day he arrested the accused Kuldeep in FIR No. 299/03 of P.S: Sadar Bahdurgarh and recorded his disclosure statement and on 27.10.2004, he also recorded the statement of witnesses Rajni and Sunil u/s-161 Cr. PC.
PW-44 Sh. Vinod Yadav, Ld. Sr. Civil Judge-cum-Rent Controller deposed that on 30.8.2003, he was posted as MM at Tis Hazari Courts, Delhi 47 and he conducted the TIP of the case property in this case and he has proved the said TIP proceedings as Ex. PW-44/B and his certificate regarding the correctness of the proceedings as Ex. PW-44/C. PW-45 Ct. Sukhbir Singh deposed that on 27.4.2002, duty officer handed over to him three envelopes containing the copy of FIR no. 120/02 and he took the same and went on a govt. motorcycle and delivered the said envelopes to area MM, Joint C.P and DCP ( N-W).
9. It has been submitted by the Ld. Addl. PP that in view of the last seen and circumstantial evidence brought on record, the prosecution has been successful in proving the guilt of the accused persons on record, beyond the reasonable doubts. It is submitted that the chain of circumstances adduced by the prosecution conclusively prove that there is no hypothesis on record except that the accused persons had committed crime. It is further submitted that prosecution has led the evidence of various PWs to show that deceased Yogesh was last seen in the company of Ompal and the said accused Ompal after commission of murder of the deceased went to Manali with his co-accused Atul, 48 Naveen and Rajesh Dabas, who were later found in possession of the articles of deceased on 11.5.2002 i.e after 15 days of murder of deceased Yogesh. It is submitted that the last seen theory comes into the play in the present case and as the time gap between the death of the deceased and the time of deceased being last seen with the accused is small and possibility of any other person being the accused of crime becomes impossible. It is further submitted that another circumstance pointing unerringly towards the guilt of accused persons is the recovery of the articles of deceased from the possession of accused and the said articles recovered from the possession of accused Atul, Naveen and Rajesh Dabas were duly identified by PW-2 Satish in the TIP proceedings conducted by the Ld. MM ( PW-44 ) on 30.8.2002 to be the same which were worn by the deceased when he was last seen in the company of Ompal. It is also submitted that the evidence adduced on record clearly proves that the accused persons had committed murder of the deceased and they have not been able to render any explanation regarding the possession of the said articles at the time of their arrest nor they have been able to account for the same. It is submitted that the accused persons have the motive to kill Yogesh as the accused Atul was inimical towards deceased Yogesh and had given a scissor blow to the deceased 49 few days before the incident in the instant case. It is further submitted that prosecution has also been able to prove on record that the death of deceased was homicidal and the cumulative effect of all the circumstantial and last seen evidence brought on record leads to no other inference except the guilty of accused and it has been prayed that the accused persons may be convicted of charged offences.
In support of his contentions, Ld. Addl. PP has relied upon the case law cited as AIR 2002 SC 3164, 2002 (3) JCC 1515, 2002 (1) JCC 294, 2004 Cr.L.J 4837, AIR 1976 SC 202, 2000 IX AD SC 299, 1999 IX AD SC 520, AIR 1978 SC 1183 and 2002 III AD (Crl.) SC 553.
On the other hand, it has been submitted by the Ld. Defence counsel for accused Atul, Rajesh and Naveen Dabas that the prosecution has miserably failed to prove the guilt of the said accused persons on record. It is submitted that there is no evidence at all on record to connect the said accused persons with the alleged crime in the present case. It is further submitted that prosecution has brought the last seen evidence on record only against the accused Ompal and the said accused, as per the prosecution itself, was already dead and a case in this regard has been registered vide FIR no.299/03 u/s 50 302/201 IPC and u/s-25 of Arms Act at PS Sadar, Bahadurgarh and supplementary charge sheet in this regard have also been filed in this case. It is further submitted that there is no last seen evidence against accused Atul Dabas, Naveen Dabas and Rajesh Dabas on record and the circumstantial evidence which is being relied upon by the prosecution does not at all connect the said accused persons with the alleged crime in the present case. It is submitted that circumstances from which the conclusion of guilt is being drawn by the prosecution are not of conclusive nature and are also not consistent with hypothesis of the guilt of accused and the chain of evidence is not at all complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons and that there is no circumstantial evidence at all on record to point towards guilt of accused Atul, Rajesh and Naveen Dabas in this case. It is further submitted that prosecution is mainly relying upon the alleged recovery of articles of deceased from accused Atul, Rajesh and Naveen Dabas at the time of their arrest, however even the said recovery is doubtful and is against the normal human behaviour and conduct as the accused cannot be expected to display the said articles on their person in full public view so as to invite attention towards the said articles. It is also 51 submitted that had the said accused persons removed the articles from the body of deceased, they would have either concealed the said articles or would have disposed of the same and would not have under any circumstances kept the said articles with them so as to enable the investigating agency to connect them with the crime in the present case. It is submitted that even the arrest of accused Atul, Naveen and Rajesh Dabas from Sonipat bus stand at the instance of PW-12 Dinesh Kumar is doubtful as the prosecution has not explained on record as to how the said PW-12 was aware of the assailants in this case. It is further submitted that PW-37 Insp. K.G. Tyagi, who is the IO of this case has stated in his testimony that on the specific information of PW-Dinesh Kumar, he alongwith his staff and Dinesh went to Sonipat regarding the search of accused Ompal, Atul, Naveen and Rajesh Dabas. Whereas on the other hand, PW-12 Dinesh Kumar has stated that on 11.5.2002, he was at the house of his Bua, the mother of deceased Yogesh when at about 12:00 Noon, two police officials from PS Bawana came to the house of his Bua and asked that anyone who was conversant with the identity of assailants should come to PS. It is submitted that it is being stated on behalf of the prosecution that accused persons entered into a conspiracy to kill deceased Yogesh and the said 52 conspiracy is evident from the conduct of accused persons as all of them went to Manali after committing the murder of deceased, however the said alleged circumstance being relied upon by the prosecution is not of any use as the prosecution was required to show conduct or conspiracy on the part of accused persons prior to commission of the offence rather than after the commission of offence. It is also stated that aforesaid circumstances regarding the accused going to Manali and their photographs taken there have also not been proved on record by the prosecution as the material witnesses in this regard i.e. PW-16 Sonu Sharma photographer resiled from his earlier statement and does not support the case of the prosecution .
It has been submitted that even the identity of the deceased has not been proved on record and it has not been conclusively shown that deceased was Yogesh or Ompal or anyone else. It is further submitted that only motive for the offence being mentioned on behalf of the prosecution is that the accused Atul was inimical towards deceased Yogesh as he had allegedly given a scissor blow to the deceased few days before the commission of crime in this case, however even the said motive have not been proved on record by the prosecution as PW-8 Ajay Dabas in his cross examination by the Ld. Addl. PP 53 specifically stated that prior to the incident, there was no quarrel between Yogesh and Atul or that the matter was later on compromised and PW-8 also denied that about 25 days prior to 5.5.2002, he had seen any quarrel between Yogesh and Atul outside the shop. It is also submitted that as per prosecution, the scissor blow was inflicted upon Yogesh by Atul and the matter later on was compromised between them and in such event, no motive remain on the part of accused to kill deceased Yogesh as it is the case of the prosecution itself that matter was later on compromised between them and in any event, in view of the case of the prosecution, if anyone was having the motive, it was alleged deceased Yogesh as he was given a scissor blow by the accused Atul and it was for the deceased to take revenge for the said alleged assault and it could not be said that accused Atul would have any motive to kill Yogesh after giving alleged scissor blow to kill him and apart from the said motive on the part of accused Atul, the prosecution has not stated anything about the motive on the part of accused Rajesh, Naveen and Atul to kill the deceased. It has been submitted that prosecution has miserably failed to prove the guilt of the accused persons and it has been prayed that the accused Atul Dabas, Naveen Dabas and Rajesh Dabas may be acquitted of the charged offences. 54
In support of his contentions, ld. Defence counsel has relied upon the case-law cited as 1996 Cr. L.J 265.
Further, Ld. Defence counsel for accused Ramesh Chander submitted that the prosecution has failed to prove the guilt of accused Ramesh Chander on record on beyond the reasonable doubt. It is submitted that prosecution has failed to bring on record any evidence, circumstantial or otherwise, to show that accused Ramesh Chander was a party to the conspiracy to kill deceased Yogesh. It is further submitted that even the identification of dead body of deceased has not been conclusively proved on record by the prosecution and since the identity of deceased has not been established, the prosecution has also failed to prove on record the guilt of accused Ramesh Chander for committing offence punishable u/s 201 IPC. It is further submitted that there is no last seen or circumstantial evidence on record to connect the accused Ramesh Chander with the alleged crime in the present case and it has been prayed that accused Ramesh Chander may be acquitted of the charged offences.
In rebuttal, Ld. Addl. PP submitted that identity of deceased being Yogesh have been proved on record beyond the reasonable doubts by the 55 prosecution as various prosecution witnesses i.e. PW-2, PW-3 and PW-6 have identified the photographs, clothes and other articles worn by the deceased Yogesh when he lastly left the house and in view of the testimonies of the said witnesses, it has been conclusively proved on record by the prosecution that dead body was of Yogesh and not of anyone else. It is further submitted that it is being claimed on behalf of accused Ramesh Chander that said dead body was of his son Ompal, however, during the trial of this case, the said Ompal, who was also one of the accused in this case was killed and a case in this regard has been registered vide FIR no.299/03 u/s 302/201 IPC and u/s 25 of Arms Act at PS Sadar, Bahadurgarh and supplementary charge sheet in this regard have also been filed by the prosecution in this case, which clearly shows that accused knowingly identified the dead body of the accused to be as of his son Ompal, although his son Ompal was alive at that time. It has been again submitted that in view of the circumstantial and last seen evidence brought on record, the prosecution has proved its case on record beyond any reasonable doubt.
10. The law relating to the circumstantial and last seen evidence have 56 been laid down by the Hon'ble Supreme Court of India in case reported as (2008) 8 SCC 456.
In the aforesaid case titled as " Venkatesan Vs. State of Tamil Nadu ( reported as (2008) 8 SCC 456)", it has been laid down by the Hon'ble Supreme Court of India that :-
" It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
The circumstances from which an
inference as to the guilt of the accused is
drawn have to be proved beyond
reasonable doubt and have to be shown
to be closely connected with the principal
fact sought to be inferred from those
circumstances. In Bhagat Ram V. State
of Punjab, it was laid down that
57
where the case depends upon the
conclusion drawn from circumstances,
the cumulative effect of the
circumstances must be such as to
negative the innocence of the accused
and bring home the offences beyond
any reasonable doubt".
It has been further laid down in the aforesaid case that :-
"Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence ( Chapter VI) lays down the following rules special to be observed in the case of circumstantial evidence (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be 58 adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation , upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
In the aforesaid case law, it has also been laid down by the Hon'ble Supreme Court of India that :-
"The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible ."
In view of the above law laid down by the Hon'ble Supreme Court of 59 India, it is clear that in order to convict the accused persons on the basis of the last seen and circumstantial evidence, it is essential that circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established on record by the prosecution and those circumstances should be of a definite tendency, unerringly pointing towards guilt of the accused and the circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. From the above case law, it is also clear that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused committing the crime becomes impossible.
11. In the present case, accused Atul Dabas, Rajesh Dabas and Naveen Dabas alongwith accused Ramesh Chander have charged for committing the offences punishable u/s-120B IPC and u/s-302 r/w section 120-B IPC.
It has been submitted on behalf of the prosecution that in view of the last seen and circumstantial evidence brought on record and in view of the 60 testimonies of various prosecution witnesses, the prosecution has been successful in proving the guilt of the accused persons on record, beyond any reasonable doubt. Whereas on the other hand, it has been submitted on behalf of the accused persons that prosecution has miserably failed to prove the guilt of the accused persons for committing the offence punishable u/s-120-B IPC and u/s-302 r/w section 120-B on record.
In the instant case, the perusal of the evidence adduced on behalf of the prosecution reveals that regarding the last seen evidence, the prosecution has examined PW-1 Harish Dabas, who deposed that deceased Yogesh was his elder brother and on 26.4.2002 at about 9: 00 P.M., he alongwith his deceased brother Yogesh went to Kanjhawala chowk, where one Om Pal s/o accused Ramesh met them and his deceased brother Yogesh told him that he had to go with Om Pal and thereafter he alongwith Ompal left towards Bawana. In this regard, PW-9 Ramchander deposed that on 26.4.2002, deceased Yogesh came to his house on a motor cycle of Black colour CVZ , Hero Honda bearing no. DL8SR-4864 and he was accompanied by another boy to whom Yogesh was addressing as Ompal. Further, PW-12 Dinesh Kumar deposed that on 26.4.2002, while he was coming back from his sister's house at Sonipat at 61 about 9:00 P.M., he had reached Bawana and met deceased Yogesh at a Pan shop and he told him that he was with Ompal, a boy from his village. In these circumstances, in view of the testimonies of PW-1, PW-9 & PW-12, the prosecution has brought evidence on record, whereby the deceased Yogesh was lastly seen in the company of Ompal on 26.4.2002, however the said accused Ompal, as per the prosecution itself, is already dead and a case in this regard has been registered vide FIR No. 299/03 u/s-302/201 IPC at P.S Sadar, Bahadurgarh and supplementary charge sheet in this regard have also been filed in this case. It is pertinent to note here that in the last seen evidence brought on record by the prosecution, there is no mention of the accused Atul Dabas, Rajesh Dabas and Naveen Dabas or accused Ramesh Chander. In fact, the perusal of the testimonies of various prosecution witnesses reveals that no evidence at all have been brought on record by the prosecution to show that immediately before the death, deceased Yogesh was seen in the company of any of the above named accused persons.
It has been argued on behalf of the prosecution that the last seen evidence in respect of the accused Ompal assumes importance as after the commission of murder, accused Atul Dabas, Rajesh Dabas and Naveen Dabas 62 alongwith the said accused Ompal went to Manali, which fact has been proved on record by the testimonies of PW-16 Sonu Sharma and PW-18 Kulshan Kumar, however the said submissions made on behalf of the prosecution are devoid of any merits and are contrary on record as the perusal of record reveals that aforesaid PW-16 Sonu Sharma does not support the case of the prosecution and was in fact declared hostile and was cross examined by Ld. Addl. PP and even in his cross examination, he has not supported the version of prosecution. This witness i.e PW-16 Sonu Sharma specifically stated in his examination in chief that on 05.4.2002 two boys again said four boys came to him in a white colour Maruti Car the registration number of which he do not remember and they took him for taking photographs to a place called Madi , 16 Kms., prior to Rohtang Pass as Rohtang Pass was closed for visitors during that time. This witness PW-16 was declared hostile by the prosecution and was cross examined by the Ld. Addl. PP. In his cross examination by the Ld. Addl.PP, PW-16 Sonu Sharma denied the suggestion that he went with four boys to Madi on 03.5.2002 and he voluntarily stated that Rohtang Pass is opened in May every year and as such it was not possible that he had gone with four boys in May 2002. No doubt, in his cross examination by the ld. Addl. PP, PW-16 admitted 63 the suggestion that he told police that on 3.5.2002 four boys came in Maruti Car No. DL 8CD-5284 and he went with them to Madi,however the said admission made by PW-16 in his cross examination by ld. Addl. PP is not of much use to the prosecution as immediately thereafter PW-16 denied the suggestion by Ld. Addl. PP that beside accused Atul other accused persons namely Rajesh and Naveen Dabas were also present on 03.5.2002 or he had taken them to Madi and on seeing the photographs Ex. PW-12/K & M this witness i.e PW-16 stated that accused Naveen and Rajesh were not shown in the said photographs. PW-16 also denied the suggestion that he was deliberately not identifying the photographs or that he was deliberately deposing falsely. It is pertinent to note that again in his cross examination by the ld. Defence counsel, PW-16 stated that he can not tell the registration number of vehicle in which accused had taken him but it was on 05.4.2002. In these circumstances, in view of the testimony of PW-16 Sonu Sharma the prosecution has not been able to conclusively prove on record that accused persons went to Madi in first week of May 2002. In fact this witness i.e PW-16 specifically stated in his examination in chief by the prosecution as well as in his cross examination by the ld. Defence counsel, that it was on 05.4.2002 when he went with accused 64 to Madi. In this regard, in addition to PW-16, the prosecution is also relying upon the testimony of PW-18 Kulshan Kumar , however even the testimony of the said PW-18 is not of much use to the prosecution as PW-18 in his testimony stated that as per entry no. 454, one Rajesh checked in the hotel on 01.5.2002 and checked out on 03.5.2002, however this witness PW-18 have not identified the said Rajesh to be the accused Rajesh Dabas and in the absence of identification of the accused, the testimony of PW-18 is not of much use to the prosecution in this case. This witness i.e PW-18 has identified the accused Atul Dabass, to be the person accompanying the police, however the said identification is again not of much use to the prosecution as this witness PW-18 did not produce any record showing the presence of the said accused in the hotel on the alleged date. Further, this witness PW-18 also stated in his cross examination that he can not tell the description of the persons who arrived on 01.5.2002 and 02.05.2002. He also admitted that entry no. 454 do not bear the signatures of any guest and the document Ex. PW-18/DA also does not bear the signatures of the guest. In these circumstances, in view of the testimonies of PW-16 and PW-18, it is clear that the prosecution has not been able to conclusively prove the presence of accused Rajesh Dabas, Atul Dabas 65 and Naveen Dabas alongwith accused Ompal in Manali in the first week of May 2002. Even otherwise, in order to prove the aspect of conspiracy on record, it was incumbent upon the prosecution to show the circumstances or conduct on the part of the accused prior to the commission of offence so as to enable it to prove that the said conduct or circumstances form the part of conspiracy which led to the commission of offence in this case, however in view of the material on record, it is evident that the prosecution has failed to prove the said circumstances or conduct on the part of the accused which could have proved the conspiracy to commit murder on record.
12. In addition to the above, the prosecution is also relying upon the recovery of articles of the deceased from the accused to connect the accused Atul Dabas, Rajesh Dabas and Naveen Dabas with the commission of offence in the present case. It has been argued on behalf of the prosecution that recovery of articles of deceased unerringly point towards the guilt of accused and the said articles i.e chain with locket, gold ring, wrist watch and mobile phone recovered from the possession of the above named accused persons were duly identified by the PW-2 Satish Dabas in the TIP proceedings conducted by the 66 ld. MM to be the same which were worn by the accused, when he was last seen in the company of Ompal, however the said contentions put forward on behalf of the prosecution does not hold water and are contrary to the record as the factum regarding the wearing of above mentioned articles by the deceased when he was last seen alive is contradicted by the testimonies of various prosecution witnesses. In this regard, PW-8 Ajay Dabas specifically stated in his cross examination by the ld. Defence counsel that deceased Yogesh never use to wear chain, ring,wrist watch etc. and he also admitted that when he met him on the last day, deceased Yogesh was not wearing golden chain, golden ring or wrist watch. Further, the recovery of the said articles from the accused persons also become doubtful in view of the fact that the material recovery witness i.e PW-12 Dinesh Kumar in his statement recorded in the court on 12.7.2004 have not mentioned about the alleged recovery from the accused persons and it was only in his further examination on the basis of the application u/s-311 Cr.PC, that this witness PW-12 told about the alleged recovery made from the accused Atul Dabas, Rajesh Dabas and Naveen Dabas. In addition to this, the credibility of this witness i.e PW-12 Dinesh Kumar in respect of the recovery effected from the accused persons is also doubtful as in 67 his cross examination by the ld. Defence counsel he stated that he was aware about the recovery from the accused persons and the documents prepared regarding the said recovery on the said day on which his statement was earlier recorded in this case. Further, this witness i.e PW-12 also stated that when the accused persons were apprehended at the bus stand, public persons gathered there out of curiosity , however the police officials scattered the public persons and took the accused persons to a secluded place near the bus stand, where they were formally searched. In these circumstances, in view of the aforesaid factum regarding the presence of public persons at spot at the time of alleged arrest and recovery from the accused persons, it has not been explained on behalf of the prosecution as to why any independent public person was not made a witness to the alleged recovery from the accused persons, when admittedly a large number of public persons were present at the spot and it has also not been explained as to what was the necessity to scatter the public persons and to take the accused persons to a secluded place and thereby make the alleged recovery doubtful. In addition to this , the manner in which the accused Atul Dabas, Rajesh Dabas and Naveen Dabas have been arrested in this case from Sonipat bus stand also creates doubt regarding their apprehension. 68 In this regard, PW-37 Insp. K.G.Tyagi, who is the main IO of this case, has stated that they went to Sonipat on the specific information of PW- Dinesh, where accused Atul Dabas, Rajesh Dabas and Naveen Dabas were apprehended at the pointing out of PW-12. Whereas on the other hand, the said witness Dinesh, who was examined as PW-12 in this case, has stated that on 11.5.2002 he was present at the house of Bua i.e. mother of deceased Yogesh and at about 12 Noon, two police officials from PS Bawana came to the house of his Bua and asked that anyone who was conversant with the identity of assailants should come to the PS and accordingly PW-12 went with them to P.S. In these circumstances, in view of the contradictory testimonies of PW-12 and PW-37, it has not been explained on behalf of the prosecution as to how PW-12 was aware about the assailants in this case, as no evidence at all have been brought on record by the prosecution to show that PW-12 was aware of the involvement of the accused Atul Dabas, Rajesh Dabas and Naveen Dabas in this case prior to 11.5.2002. IO PW-37 Insp. K.G.Tyagi has stated that they went to Sonipat on the specific information of PW-12 Dinesh and the said PW-12 stated that it was the police officials who called him to P.S to accompany them to Sonipat, which create material contradiction in respect of 69 the manner in which the police party allegedly went to Sonipat in search of the accused persons.
Apart from the above, it has been submitted by the ld. Defence counsel that recovery of the above mentioned articles from accused Atul Dabas, Rajesh Dabas and Naveen Dabas is even otherwise doubtful and is against normal human behaviour and conduct as the accused persons can not be expected to display the alleged articles on their person in full public view so as to invite attention towards the said articles and to enable the investigating agency to connect them with the crime in the present case. I find considerable force in the said submissions made on behalf of the accused persons as it is highly improbable that a person who has stolen or removed the articles pertaining to the deceased would move in the full public view with the said articles on his person. In such circumstances, the normal human conduct would have been either to conceal the said articles or to dispose of the same at the first available opportunity and by no stretch of imagination, it can be expected that the accused persons will carry the said articles with them so as to facilitate the investigating/prosecuting agency to connect them with the commission of offence in this case.
70
Hence, in view of the above and having regard to the fact and circumstances of the present case, the alleged recovery of above mentioned articles from the person of accused Atul Dabas, Rajesh Dabas and Naveen Dabas becomes doubtful. In these circumstances, in my considered opinion, even the said circumstance is not of much use to the prosecution in the present case.
13. In the present case, apart from the above circumstances, it has also been submitted on behalf of the prosecution that the accused persons had the motive to kill the deceased Yogesh as the accused Atul was inimical towards deceased Yogesh and had given a scissor blow to the deceased few days before the commission of crime in this case, however the said submissions made on behalf of the prosecution are devoid of any merits and are contrary to the record as in view of the evidence and material on record, it is clear that the prosecution has even failed to prove the factum of motive on record. In this regard, the prosecution examined the PW-8 Ajay Dabas and the said witness resiled from his earlier statement and does not support the case of the prosecution and in his cross- examination by the ld. Addl. PP, PW-8 Ajay 71 Dabas denied the suggestion that one year prior to the incident there was any quarrel between deceased Yogesh and accused Atul or that the matter was later on compromised. He also denied the suggestion that about 25 days prior to 05.5.2002, he had seen any quarrel between Yogesh and accused Atul outside his shop. In the instant case, only motive for offence being mentioned on behalf of the prosecution is that the accused Atul Dabas was inimical towards deceased Yogesh and has allegedly given a scissor blow to the deceased few days before the commission of crime in this case, however the prosecution has failed to prove the said motive on record as the material witness in this regard i.e PW-8 resiled from his earlier statement and does not support the case of the prosecution. In fact, one of the suggestions put to PW-8 on behalf of the prosecution was later on matter was compromised between deceased Yogesh and accused Atul which implies that even as per the prosecution, matter has been compromised between accused and deceased Yogesh and as such it has not been explained on behalf of the prosecution as to how there was any motive on the part of the accused Atul to commit the murder of the deceased when according to the prosecution itself the matter between them stood compromised. Apart from above, the prosecution has not stated anything about 72 the motive on the part of the accused Atul Dabas, Rajesh Dabas and Naveen Dabas to commit the crime alleged in this case. In addition to this, no evidence whatsoever have been brought on record by the prosecution to prove its case that accused Ramesh Chander was also a party to the conspiracy to commit murder of the deceased Yogesh.
14. In order to prove its case regarding the offence u/s-120-B and u/s- 302 r/w section 120-B IPC against the accused persons on record, the prosecution has examined various material public witnesses i.e PW-8 Ajay Dabas, PW-15 Jai Bhagwan , PW-16 Sonu Sharma, PW-17 Sanjay and PW-19 Gulshan Kumar, however all these material public witnesses resiled from their earlier statements and does not support the case of the prosecution and were cross examined by the ld. Addl.PP. In his cross examination by the ld. Addl. PP, PW-8 Ajay Dabas denied the suggestion that one year prior to the incident there was any quarrel between deceased Yogesh and accused Atul or that the matter was later on compromised. He further denied that about 25 days prior to 05.5.2002, he had seen any quarrel between Yogesh and accused Atul outside his shop and they were threatening to kill each other or that accused 73 Atul inflicted a blow by a scissor on the shoulder of deceased Yogesh. He also denied the suggestion that he was deposing falsely, being won over by the accused persons.
Further, in his cross examination by the Ld. Addl.PP, PW-15 Jai Bhagwan stated that his statement was not recorded by police. He denied the suggestion that he had deliberately destroyed the record maintained by him so as to save the accused persons. He further denied the suggestion that on 12.5.2002, accused Atul Dabas, Rajesh and Naveen came at his STD booth and had telephoned from there with their co-accused. PW-15 denied the suggestion that accused Rajesh, Atul and Naveen were accompanying the police, when the documents were prepared. He also denied the suggestion that he have been won over by the accused persons and for that reason, he was deposing falsely.
Similarly, in his cross examination by the Ld. Addl.PP, PW-16 Sonu Sharma denied that he went with the four boys to Madi on 03.5.2002. He also denied the suggestion that besides accused Atul other accused persons namely Rajesh and Naveen Dabas were also present on 03.5.2002 or had taken him to Madi. On seeing the photographs Ex. PW-12/ K & M, this witness i.e PW-16 said that accused Naveen and Rajesh were not shown in the said photographs 74 and he denied the suggestion that the photograph Ex. PW-12/M the boy sitting in the middle was accused Rajesh. PW-16 also denied the suggestion that he was deliberately not identifying the photograph of accused Rajesh and was deposing falsely.
PW-17 Sanjay, in his cross examination by the Ld. Addl.PP denied the contents of his statement Mark- PW-17/A. He denied the suggestion that SHO showed him some photographs or that he had identified the said photographs to be of deceased Yogesh. He further denied the suggestion that one SIM Card bearing no. 9811019176 was handed over by him to police and he had told the police that he had used mobile handset make Nokia with IEMI No. 35060610136970 by inserting SIM Card No. 9811019176. He also denied the suggestion that he was deposing falsely as he had mixed up with accused persons , being residents of his native village.
Similarly, in his cross examination by the Ld. Addl.PP, PW-19 denied the suggestion that he maintained the call register or that he had mixed up with the accused persons and was deposing falsely. He further denied the suggestion that Atul had made call to one Ompal on 26.4.2002 at 10:17 P.M. He also denied the suggestion that on 12.5.2002, police had brought 75 accused Atul, Naveen and Rajesh at his booth and the accused persons pointed out and stated that they had made the aforesaid call to Ompal. PW-19 further denied the suggestion that he was deposing falsely, being being won over by the accused persons.
In addition to above, PW-37 Insp. K.G.Tyagi who is the main IO of this case, admitted in his cross examination that during his investigation nothing could be recovered or found from the above stated two places which could link accused Atul Dabas, Rajesh Dabas and Naveen Dabas with the incident at the time of inspection. He further admitted that prior to 12.5.2002, when he had taken three accused for pointing out of these two places i.e place of seizure of motorcycle and place of seizure of dead body had already been visited and inspected by him. He also stated that no article connecting the accused with the incident was recovered in pursuance to the pointing out of these places by the accused on 12.5.2002.
15. In the instant case, regarding circumstantial evidence, Ld. Addl. PP has relied upon the case law cited as AIR 2002 SC 3164 and even in the said case law, it has been laid down that the circumstances from which conclusion 76 of guilt is to be drawn should be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused and the said circumstances should be of conclusive nature and tendency and should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused, however in the instant case in view of the evidence and material brought on record by the prosecution, it is clear that the circumstances from which conclusion of guilt could be drawn have not been established and the circumstances stated on behalf of the prosecution are not of conclusive nature and tendency and the said circumstances do not form chain of evidence so complete as not to leave any reasonable ground except for the conclusion regarding the guilt of accused persons.
Regarding the hostile witnesses, ld. Addl. PP/complainant have relied upon the case law cited as AIR 1976 SC 202 ,2000 (IX) AD SC 299 and 1999 (IX) AD SC 520 and it has been argued that the testimonies of hostile witnesses should not be fully excluded and it is admissible to the extent of corroboration by other evidence, however the said submissions are not of 77 much use to the prosecution as in the instant case, alleged admissions made by the said hostile witnesses in their cross examination by the ld. Addl. PP are not of any use to the prosecution as the said part of the testimonies of hostile witnesses has not been corroborated by the other evidence brought on record by the prosecution. Ld. Addl. PP has also relied upon the case law cited as AIR 1978 SC 1183 and 2002 III AD (Crl.) SC 557, however the said case law is not of much use to the prosecution as the fact and circumstances of the present case are entirely different from the fact and circumstances of the cases discussed therein.
Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, the last seen and circumstantial evidence brought on record by the prosecution is not of such nature from which the inference of guilt of the accused persons can be drawn in respect of committing the offences punishable u/s-120B IPC and u/s-302 r/w section -120B IPC. In fact, the prosecution has failed to establish on record the circumstances which would unerringly point towards guilt of accused and in view of the evidence adduced on behalf of the prosecution, it can not be said that the circumstances brought on record taken cumulatively form a chain so 78 complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused persons and none else. In these circumstances, in my considered opinion, the prosecution has failed to prove the guilt of the accused persons for committing the offence punishable u/s-120-B IPC and u/s-302 IPC r/w 120-B IPC, beyond the reasonable doubt.
Accordingly, I hereby acquit the accused- Atul Dabas, Rajesh Dabas, Naveen Dabas and Ramesh Chander of the offences punishable u/s-120-B IPC and u/s-302 IPC r/w 120-B IPC, giving them the benefit of doubt.
16. In the present case, accused Atul Dabas, Rajesh Dabas and Naveen Dabas have also been charged for committing the offence punishable u/s-411 IPC.
In order to prove its case u/s-411 IPC, it was incumbent upon the prosecution to prove on record that the above named accused persons have dishonestly received or retained the stolen property, knowing or having reason to believe the same to be stolen property, however from the material on record and in view of the evidence adduced by the prosecution, it is clear that the 79 prosecution has not been able to establish its case u/s-411 IPC on record against the above-named accused persons, beyond the reasonable doubt.
In the earlier discussions, the recovery of the alleged articles i.e golden chain with locket, gold ring, wrist watch and mobile phone from the above named accused persons have already been held to be doubtful. In fact, the manner in which the recovery have been shown to be effected from the accused persons creates doubt in respect of the recovery of the articles itself. Further, from the material on record, it has also not been proved on record beyond the reasonable doubt that the deceased was in fact carrying the said articles at the time of his death. In this regard, it is pertinent to note that PW-8 Ajay Dabas in his cross examination by the ld. defence counsel has stated that the deceased Yogesh never use to wear chain, ring, wrist watch etc. and he also admitted that when he met him on the last day, deceased Yogesh was not wearing golden chain, golden ring and wrist watch. Regarding the aforesaid articles, it has been stated by the PW-2 Satish Dabas ( brother of the deceased ) that the said wrist watch (Ex. P-6) was gifted to him in his marriage and the aforesaid mobile phone (Ex. P-9) was purchased by him from the Karol Bagh Market, however no justifiable explaination has come on 80 record on behalf of the prosecution as to how the said articles i.e wrist watch (Ex. P-6) and mobile phone (Ex. P -9) came on the person of the deceased when admittedly those articles pertain to PW-2 Satish Dabas. Further , regarding the remaining articles i.e chain with locket and golden ring , it has been stated by PW-6 Shakti Singh that golden articles as stated above were got prepared from the old jewelery of his wife during the marriage of his elder son and the said gold articles were got prepared from one Nathu goldsmith, however the said claim made by PW-6 Shakti Singh is contradicted by DW-1 Premwati ( daughter of the above named goldsmith Nathu) who deposed that Nathu was her father and her mother died in the year 1992 and thereafter her father started living with her at Palwal , Haryana and she also specifically stated that after the death of her mother, her father did not do the work as jeweler /goldsmith. She also stated that from the period since he started living with them in the year 1992 till his death on 01.1.1997, her father did not prepare or sold any jewelery articles to anyone. The testimony of DW-1 Premwati in this regard has also been corroborated by the testimony of her husband i.e DW3 Ishwar Singh, who also deposed on the similar lines and stated that during the period Nathu Ram resided with him, he did not do work 81 of goldsmith/jeweler. Further, PW-6 Shakti Singh also stated that the above mentioned gold articles were got prepared by him during the marriage of his elder son who got married about 4 years back. PW-6 made this statement in the court on 20.4.2004 and as such as per the statement of the said PW-6 his son might have got married in the year 2000 and as per PW-6 jewelery during the said marriage of his son was got prepared from Nathu Ram , however the said Nathu Ram expired on 09.1.1997 as is evident from the testimony of DW-2 Puran Singh Clerk, Death and Birth , Municipal Council, Palwal Haryana who stated that Nathu Ram expired on 09.1.1997 and his death has been registered at S. No. 14 dated 13.1.1997 and he has proved the said entry as Ex. DW-2/A. He has also proved the death certificate of Nathu Ram prepared by his office as Ex. DW-2/B and stated that entry made in the said death certificate were correct as per their record. In these circumstances, it has not been explained on behalf of the prosecution as to how PW-6 Shakti Singh could have got prepared the above mentioned gold articles ( allegedly recovered from the accused persons ) in the year 2000 from the goldsmith Nathu when as per the record of the municipal authority, the said Nathu Ram had already expired on 09.1.1997.
82
Regarding the above recovery, ld. Addl. PP/complainant has relied upon the case law cited as 2002 (1) JCC 294 and 2004 Crl. L.J 4837, however the said case law is not applicable in the present case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed in the said case law and in my considered opinion, the aforesaid case law is not of any use to the prosecution/complainant in the present case.
Hence, in view of the above and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to bring home the guilt against the accused persons for committing the offence punishable u/s-411 IPC beyond the reasonable doubt.
Accordingly I hereby acquit the accused - Atul Dabas, Rajesh Dabas and Naveen Dabas of the offence punishable u/s-411 IPC, giving them the benefit of doubt.
17. In the present case, accused Ramesh Chander has also been charged for committing the offence punishable u/s-201 r/w section 120-B IPC. 83
It has been submitted on behalf of the prosecution that accused Ramesh Chander knowingly identified the dead body of Yogesh as to be that of his son/co-accused Ompal knowing or having reason to believe that murder of deceased Yogesh has been committed and accused Ramesh Chander cremated the dead body of Yogesh showing it to be the dead body of his son Ompal with intention of causing the evidence of commission of the offence to disappear and to screen offenders from legal punishment and as such accused Ramesh Chander is guilty of the offence punishable u/s-201 IPC.
On the other hand, it has been submitted by the ld. Defence counsel for the accused Ramesh Chander that prosecution has failed to prove the guilt of accused Ramesh Chander on record beyond the reasonable doubt. It is further submitted that in the present case even the identity of the dead body of the deceased has not been conclusively proved on record by the prosecution and since the identity of the deceased has not been established, the prosecution has failed to prove on record the guilt of the accused Ramesh Chander for committing the offence punishable u/s- 201 IPC.
84
18. Accused Ramesh Chander, in the instant case, have also been charged for committing the offence punishable u/s- 201 IPC.
Section-201 of the IPC deals with causing disappearance of evidence of offence or giving false information to screen offender. It reads as under:-
201. Causing disappearance of evidence of offence, or giving false information to screen offender:-
" Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either 85 description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life
------- -------------- -------
if punishable with less than ten years imprisonment - - - - - - - - - - - - - - - - - - -
In the instant case, it has been submitted on behalf of the accused- Ramesh Chander that identity of the dead body of the deceased has not been conclusively proved on record by the prosecution and as such the said accused could not be held liable for the offence punishable u/s-201 of the IPC, however the said submissions made on behalf of the above-named accused are devoid of any merits and are contrary to the record, as from the material and evidence on record, in particular the testimonies of PW-2, PW-3 and PW-6, it has been conclusively proved on record by the prosecution that dead body was of Yogesh and not of any one else. The said witnesses i.e PW-2 Satish Dabas (brother of the deceased ), PW-3 Sukhbir Singh ( relative of the deceased ) and PW-6 Shakti Singh ( father of the deceased ) have identified the dead body to 86 be of Yogesh on the basis of the photographs ( Ex. PW-2/1 to Ex. PW-2/6), shoes ( Ex. P-1), clothes ( Ex P-2 to Ex. P-5 ) and other articles worn by the deceased Yogesh, when he lastly left the house.
The important fact is that the aforesaid material witnesses i.e PW-2 PW-3 and PW-6 were cross examined by the Ld. Defence counsels, but nothing material has come on record which could assail the credibility or trustworthiness of these witnesses regarding the identification of the dead body of deceased Yogesh or which could be of any help to the accused.
Further, it is being stated on behalf of the accused Ramesh Chander that he received the dead body as he felt that it was of his son Ompal as the face of the dead body was disfigured and he identified the dead body to be of his son Ompal on the basis of his physique, clothes, shoes and appearance , however the said contentions put forward on behalf of the accused does not hold water and are contrary to the record as from the perusal of the photographs ( Ex. PW-2/2, Ex. PW-2/3, Ex. PW-2/4 & Ex. PW-2/6), it is evident that face of the dead body was not disfigured. In fact, from the said photographs, it is clear that face of the dead body of the deceased was quite visible and its facial and bodily features must have been more clearly visible when the dead 87 body was seen and identified by accused Ramesh Chander and as such it is not understandable as to how the accused Ramesh Chander could have identified the dead body to be of his son Ompal in view of the clear visibility of the face and other features of the said dead body.
In view of the above, it is clear that accused Ramesh Chander knowingly or dishonestly claimed the dead body of deceased Yogesh to be that of his son Ompal, although he knew that his son Ompal was alive at the relevant time and it appears that accused Ramesh Chander claimed the dead body to be of his son with an intention to save his son/co-accused Ompal. It is pertinent to note here that Ompal infact died during the trial of this case, as is evident from the case registered vide FIR No. 299/03 u/s-302/201 IPC and u/s - 25 of Arms Act at P.S Sadar Bahadurgarh, Haryana and supplementary charge sheet in this regard have also been filed in this case.
19. Thus, in view of the above discussion and observations, I am of the considered opinion that prosecution has been successful in proving on record beyond the reasonable doubt that accused Ramesh Chander knowingly identified the dead body of Yogesh as to be that of his son/co-accused Ompal 88 knowing or having reasons to believe that murder of Yogesh has been committed and accused Ramesh Chander cremated the dead body of Yogesh showing it to be the dead body of his son Ompal with intention of causing the evidence of commission of the offence to disappear and to screen the offenders from legal punishment. Accordingly, I hold the accused - Ramesh Chander guilty of offence punishable u/s-201 of the IPC and convict him accordingly.
Now to come up for arguments on the point of sentence on 18.09.2009.
(Announced in the open ) (Paramjit Singh)
(Court on 15.09.2009) Addl. Session Judge
(North-West)-04
Rohini:Delhi
89
FIR No.-120/02
P.S.- Bawana
15.09.2009
Present: Sh. V.K. Negi, Addl.PP for the state with complainant in person.
Accused -Atul Dabas, Rajesh Dabas and Naveen Dabas in JC with Sh. Shubham Asri, proxy counsel for the defence counsel Sh. R.K.Naseem.
Accused Ramesh Chander on bail with counsel Sh. S.S.Tyagi. Vide separate judgment, announced in the open court, accused Atul Dabas, Rajesh Dabas and Naveen Dabas have been acquitted of the charged offences and accused Ramesh Chander have been convicted u/s -201 IPC.
PB &BB of the convict- Ramesh Chander are cancelled. He is taken into custody and is sent to JC till 18.9.2009.
Now to come up for the arguments on the point of sentence in respect of the convict Ramesh Chander on 18.09.2009, as requested.
(Announced in the open ) (Paramjit Singh)
(Court on 15.09.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi
90
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (NORTH-WEST)-04, ROHINI : DELHI (Sessions Case No. 279/07) State Vs. Ramesh Chander FIR No. : 120/02 U/s : 201 IPC P.S. : Bawana ORDER ON THE POINT OF SENTENCE In the present case, the convict Ramesh Chander have been convicted u/s-201 IPC.
I have heard the arguments on the point of sentence put forward by ld. Addl. PP for the state and ld. Defence counsel for the convict.
2. It has been submitted by the ld. Addl.PP that convict was a Sub- Inspector in police and he should have known the implications of his act and on account of the wrong identification of the dead body by the 91 convict, the family members of the deceased could not see the face of the dead body for the last time and could not even perform the last rites of the deceased. Ld. Addl. PP also submits that in view of the serious nature of offence, the convict does not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the ld. Defence counsel that the convict Ramesh Chander belongs to a respectable family and is working as Sub-Inspector in police and is the sole bread earner of his family and there is none else to look after his family. He further submits that the convict is not a previous convict and is having clean antecedents. Ld. defence counsel also submits that the convict- Ramesh Chander has remained in custody for about - 3 years during the investigation and trial of this case and he prays that a lenient view may be taken and convict may be sentenced to undergo imprisonment for the period he has already remained in custody in this case.
4. I have carefully considered the submissions made by ld. Addl. PP 92 and ld. Defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict has been convicted for committing the offence punishable u/s-201 IPC.
Keeping in view the fact and circumstances of the present case and having regard to the fact that on account of the act of the convict, the investigation in the instant case have been seriously effected and has in fact initially derailed and the said act of the convict even deprived the family members of the deceased of their right to perform the last rites of the deceased, I am of the considered opinion that the convict does not deserve any leniency in this case, however, in view of the family circumstances of the convict, I hereby sentence the convict- Ramesh Chander to undergo RI for four years and to pay a fine of Rs. 15,000/- in default SI for six months u/s - 201 IPC, which sentence shall meet the ends of justice in this case.
Benefit u/s 428 Cr.PC be also given to the convict.
Conviction warrant be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
93
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 18.09.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi
94
FIR No.-120/02
P.S.- Bawana
18.09.2009
Present: Sh. V.K.Negi, Addl.PP for the state with complainant in person.
Convict -Ramesh Chander in JC with counsel Sh. S.S.Tyagi. Arguments on the point of sentence, heard.
Vide separate order on the point of sentence, announced in the open court, the convict-Ramesh Chander has been sentenced to undergo RI for four years and to pay a fine of Rs. 15,000/- in default SI for six months u/s - 201 IPC, which sentence shall meet the ends of justice in this case.
Benefit u/s 428 Cr.PC be also given to the convict.
Conviction warrant be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 18.09.2009) Addl. Session Judge
(North-West)-04
95
Rohini/Delhi