Delhi District Court
State vs Pooja on 28 February, 2024
IN THE COURT OF SH. RAJ KUMAR,ADDITIONAL SESSIONS
JUDGE-05, CENTRAL DISTRICT, TIS HAZARI COURTS,
DELHI
In the matter of:-
(Sessions Case No. 28296/2016) CNR no. DLCT01-002538-2014
FIR No. 292/2014
Police Station Rajinder Nagar
Charge-sheet filed Under Section U/s 302/397/392/411/120B/34 IPC
Charges framed against accused U/S 302/392/397/411/34 IPC
Suraj Singh @ Sahil
Charges framed against accused U/S 302/392/397/411/34 IPC
Pooja
Charges framed against accused U/S 302/392/397/411/34 IPC
Mohit Sharma @ Sunny
Charges framed against accused U/S 302/392/411/34 IPC
Munni @ Moni
State Vs 1. Suraj Singh @ Sahil
S/o Ramesh Singh
R/o E-87, Karampura, Delhi &
F-96, Karampura, Delhi
2. Pooja
W/o Suraj Singh @ Sahil
R/o R/o E-87, Karampura, Delhi &
F-96, Karampura, Delhi
3. Mohit Sharma @ Sunny
S/o Rakesh Sharma
R/o E-200, Karampura, Delhi
4. Munni @ Moni
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 1 of 61
D/o Sh. Bhoop Singh
R/o B-3/249, Sultanpuri, Delhi &
B-3/9, Sultanpuri, Delhi
........ Accused persons
Date of institution of case 17.10.2014
Date of arguments 15.01.2024
Judgment reserved on 15.01.2024
Judgment Pronounced on 28.02.2024
Decision Acquittal
Judgment
1.The criminal machinery of the State, in the case in hand, was put into motion on receipt of DD no. 25A dated 25.06.2014, whereby, the caller informed that her husband was being beaten in naked condition at F-433, First Floor, New Rajinder Nagar, Delhi. The complainant Smt. Ritu Bajaj, wife of the deceased Tarun Bajaj, had given the above said call. The FIR bearing no. 292/2014 dated 25.06.2014 was lodged at the instance of the complainant Smt. Ritu Bajaj.
2. On receipt of the above said DD entry no. 25A dated 25.06.2014, Inspector Vikram Singh Rathi, the IO of the case, reached at the spot of the occurrence and he found the deceased Tarun Bajaj to be lying in a pool of blood in a naked condition in his bedroom of the above said house. The IO of the case found that there were fatal wounds on the chin, neck, chest, stomach and legs of the deceased and even the intestines of the deceased were oozing out SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 2 of 61 of the stomach of the deceased. The IO of the case further found that there was a deep wound on the neck and stomach of the deceased and the articles were scattered in the entire room.
3. The complainant Smt. Ritu Bajaj, wife of the deceased, in her complaint which has been exhibited as Ex. PW4/A, on the basis of which the FIR in question has been lodged, stated that she was having mobile number 9810353135 and she was working as Manager, Legal with Delhi State Civil Supplies. As per the complainant, she was residing at the above said house along with her husband who was engaged in the cable business by the name of Images Cable Network. As per the complainant, as usual, she left her house at 10:00 AM for going to her house situated at Aram Bagh while leaving her husband Tarun Bajaj and servant Rahul at home. The complainant called his husband at his mobile phone 9871167484 twice at about 11/11:30 AM and at about 12:30/01:00 PM. The complainant instructed her husband to deposit the property tax but when she returned home at about 06:00/ 06:15 PM when she rang the door bell, the same was not answered. The complainant opened the door with the duplicate keys which were kept by her in her purse and when she entered the bedroom of her husband, situated at the left side of the entry of the house, she saw the naked feet of her husband. When the complainant went more closer to her husband, she found that her husband was lying in a naked condition in a pool of blood with multiple fatal wounds on her body and when, she touched the body of her husband, she found the same to be very cold. The SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 3 of 61 complainant found that the chin and neck of her husband were having cut wounds. The complainant further found that her husband was having deep wounds on her chest and the intestines of her husband were oozing out. The complainant found multiple wounds on back and legs of her husband as well. In the mean time, Rahul, the household servant, came inside after ringing the door bell and he started weeping after seeing the deceased Tarun Bajaj. Dr. Anurag Pandey, residing at the second floor of the said house was called through Rahul and a call at 100 number to the police was given. Dr. Anurag came inside the room and he found that the deceased Tarun Bajaj had already expired. Dr. Anurag also gave a call to the police. As per the complainant, some unknown persons had committed the murder of her husband Tarun Bajaj mercilessly.
4. On the above said version of the complainant Smt. Ritu Bajaj, as per the IO, the offence u/s 302 of the IPC was made out initially. Rukka was prepared and the same was sent to police station Rajender Nagar through Ct. Ramji Lal and investigation was taken up by the IO. CFSL team was called at the spot, inspection of the spot was done and the photographs of the scene of the crime were taken. The dead body of the deceased was preserved in the mortuary of Maulana Azad Medical College. CFSL team lifted a number of samples such as blood stained cotton wool swab was lifted from near the entrance of the Drawing Room, blood stained cotton wool swab was lifted from the floor of the house near the main gate entrance, blood stained cotton wool SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 4 of 61 swab was lifted from the bedroom number 2, stains were lifted from the backside of the main entrance door, blood stained cotton wool pieces were lifted from the floor of bedroom number 1 from where the body of the deceased was found, blue coloured printed bed sheet having stains was lifted from bedroom number 1 together with the cream coloured bed cover having blood stains were lifted from bedroom number 1. The above said exhibits were seized and taken into possession by the police. Chance prints were lifted by the CFSL team from the three glasses.
5. Ct. Ramji Lal returned at the spot together with the copy of the FIR. Site plan was prepared and supplementary statement of the complainant was recorded, wherein, the complainant alleged that on checking the household articles, she found that three lacs cash amount from the bedroom, where the incident occurred together with three pairs of ear tops, one ring, two small bowels of silver were also missing from the Almirah. The complainant alleged that the above said cash and jewellery was stolen by the accused persons who committed the murder of her husband. The complainant disclosed the mobile number of the deceased as 9871167484.
6. As per the charge sheet, the call detail records of the mobile number of the deceased were obtained and it was found that one mobile number 8588859704 was in touch with the mobile number of the deceased. The user of the mobile number 8588859704 was found to be one Shailender Sharma (who has been examined by the prosecution as PW3), working with a SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 5 of 61 company namely Albert Sony International Pvt. Ltd. Shailender Sharma disclosed that the above said phone was given to him by his employer company and on 25.06.2014 at about 12:50 PM, when he was having his meals in front of BL Kapoor Hospital, two girls aged about 20-25 years came to him, out of whom, one girl requested him to make a call from his mobile number. After making the call, the phone of Mr. Shailender Sharma was handed over to him and thereafter, both the girls left the spot after crossing the road in front of BL Kapoor Hospital. Mr. Shailender Sharma received a call at 01:07 PM from the mobile number of the deceased but the voice of the deceased was not clear and he stated that he had given a call by mistake. Mr. Shailender Sharma disclosed that later on, he went to Karol Bagh and that he had never seen the two girls earlier. However, Mr. Shailender Sharma further disclosed that he could identify one of the girls who had demanded the phone from him but he would not be able to identify the girl who was in a muffled face.
7. As per the charge sheet, the postmortem of the deceased was got done at Maulana Azad Medical Hospital and the Doctor who conducted the postmortem described the cause of death as under:-
"Cause of death in this case is shock and hemorrhage as a result of multiple injuries to the multiple internal organs produced by sharp cutting/ stabbing weapon, however, injury to the neck structures, liver, right kidney and right lung and abdomen in this case can cause death individually or collectively in the ordinary course of nature. The injuries were sharp and SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 6 of 61 produced by single edged cutting/ stabbing weapon"
8. As per the charge sheet, the DVR from the CCTV camera installed outside House no. F-437/B, New Rajender Nagar, New Delhi from 01:00 PM to 02:00 PM dated 25.06.2014 was obtained from the owner of the said house namely Sh. Vinod Khanna and from the CCTV footage, two accused persons who were the suspects were seen to be standing near the house of Sh. Vinod Khanna on a motorcycle. After leaving their motorcycle, the two accused persons moved ahead towards the house of the deceased and they came back after changing their clothes and by riding on their motorcycle, they went away, as per the CCTV footage. Two girls who are in a haste are also seen in the CCTV footage.
9. As per the charge sheet, from the CDR of the deceased, one girl Kumari Budhiya having mobile number 8376926970 was found to be having multiple conversations with the deceased. When Kumari Budhiya was interrogated, she disclosed that from the CCTV footage, from 01:00 PM to 02:00 PM dated 25.06.2014, she was able to identify one of the accused namely Suraj @ Sahil. It was also disclosed that the wife of Suraj namely Pooja was the friend of Budhiya and Suraj and Pooja were using mobile numbers 9654510908, 8375920773, 9953166772 and 9654366082. The CDRs of the above said mobile numbers were obtained and it was found that the accused Pooja from her mobile number 9654510908 was in constantly touch with the deceased Tarun Bajaj. From the CDR location of the mobile number SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 7 of 61 9654366082 pertaining to the accused Suraj, it was revealed that the location was that of Dehradun. Three of the accused persons namely Suraj Singh, Pooja and Mohit Sharma @ Sunny were apprehended from Dehradun on 27.06.2014. The accused Suraj Singh disclosed that he along with the accused Mohit Sharma and Pooja had given stab wounds to the deceased while committing robbery. When the deceased Tarun Bajaj was being attacked and when he struggled, the accused persons also received injuries from their knives. From the possession of the accused Suraj, an amount of Rs. 1.50 lacs was recovered, the jewellery consisting of three pairs of ear tops and one ring was recovered at the instance of the accused Pooja and knife was recovered at the instance of the accused Mohit Sharma. The fourth accused Kumari Munni @ Moni was apprehended at the instance of the accused Pooja.
10.Accused Pooja refused to participate in the TIP proceedings and one blood stained knife was also recovered from her house no. F- 96, Karampura, Delhi. An amount of Rs. 30,000/- each having blood stains was recovered from the possession of the accused Mohit Sharma and Munni @ Moni. One blood stained knife was recovered from house no. E-87, Karampura, Delhi i.e. from the house of the accused Suraj.
11.As per the charge sheet, the accused persons namely Pooja, Munni and Mohit Sharma had purchased three knives on 24.06.2014 from the shop situated at the ground floor of House no. D-37, Madipur, JJ Colony, Delhi and the said knife was used SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 8 of 61 in the commission of the crime. The motorcycle bearing no. DL- 10-SA-1355, make Pulsar was also taken into possession. The medical examination of the accused persons was got done. Accused Suraj Singh also disclosed that when he along with the rest of the accused persons was commiting the murder on 25.06.2014, he got infuriated by the fact that his wife Pooja was having illicit relationship with the deceased Tarun Bajaj. The case property i.e. the jewellery articles were correctly identified by the complaiant Smt. Ritu Bajaj during TIP proceedings.
12.After completion of the investigation, charge sheet was filed. The case was committed to the court of Sessions by the court of ld. MM after compliance of Section 207 of the Cr.P.C..
13.All the above said four accused persons were charged for the offences u/s 302/392/411/34 of IPC vide orders dated 28.10.2014. The accused Pooja, Suraj Singh and Mohit Sharma were additionally charged for the offences u/s 397/34 of IPC vide orders dated 28.10.2014.
14. In order to prove its case, the prosecution has examined as many as 47 witnesses. A brief description and overview of the prosecution witnesses is being given as below.
15. The prosecution has examined Sh. Arvind Saxena (brother-in- law of deceased) as PW-1 and this witness identified the dead body of the deceased Tarun Bajaj. This witness has exhibited his statement recorded by the police as Ex. PW1/A and the receipt of the dead body as Ex. PW1/B. SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 9 of 61
16. Ct. Kamal Singh has been examined by the prosecution as PW-
2. PW-2 had accompanied the IO to the spot, got preserved the dead body of the deceased in the mortuary of MAMC ( Maulana Azad Medical College), deposited the case property consisting of viscera box and 19 other pulindas with FSL Rohini on 08.07.2014, collected the sealed exhibits from MHC (M) and deposited with FSL on 11.08.2014. This witness marked the acknowledgement receipts dated 08.07.2014 as Mark X and Mark X-1 and photocopy of the acknowledgment receipt dated 11.08.2014 issued by FSL as Mark Y.
17.The third witness examined by the prosecution is Sh. Shailender Sharma, who has been examined as PW-3 and this witness has stated in his examination in chief that he was working with Albert Sons International Pvt. Ltd. and he was having his mobile phone number 8588859704 given to him by his company. PW-3 has further stated that on 25.06.2014 at about 12:30 AM, when he was having his lunch in front of BL Kapoor Hospital, one of the two girls, who had approached him, had given a call by demanding his mobile phone. PW-3 has further stated that he handed over his mobile phone to one of them who made one call and said " hello hum aa gaye hein" and after that she returned his mobile and told the other girl "chal wo bhi aa rahe hein". PW-3 has further stated that thereafter both the girls went to the other side by crossing the road. PW-3 has further stated that at about 1:07 PM, he received a call from his mobile number 9871167484 and he picked the call but the sound was not clear SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 10 of 61 from the other side. PW-3 has further stated that when he called back at the aforesaid number, upon which the receiver of the call said "sorry galti se wrong number lag gaya". PW-3 has stated that his statement was recorded by the police in the intervening night of 25-26.06.2014. PW-3 has further stated that on 04.07.2014, he was again called to PS Rajinder Nagar and he identified the girl namely Pooja, who had demanded and given a call from his mobile on 25.06.2014.
18. Smt. Ritu Bajaj, the wife of the deceased, has been examined by the prosecution as PW-4 and this witness has stated that after returning from her duties on 25.06.2014 at about 6/06:15 PM, she rang the bell of her house but no one answered. PW-4 has further stated that she opened the entry door of her house with the duplicate keys, kept by her in her purse and saw the naked legs of her husband in the bed room on the left side of the entry door. PW-4 has further stated that her husband Sh. Tarun Bajaj was lying in naked condition in a pool of blood having multiple fatal wounds on the different parts of his body. PW-4 has further stated that the body of her husband was cold, when she touched the same. PW-4 has further stated that the neck and chin of her husband was having deep cut marks and there were deep wounds on the chest of her husband and the intestines were oozing out of the stomach. PW-4 has further stated that their servant Rahul came there and he was asked to call Dr. Anurag Pandey from the second floor, where he was residing. PW-4 gave a call to the police at 100 number and thereafter Dr. Anurag Pandey had also SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 11 of 61 given a call to the police at 100 number. The statement of the complainant recorded by the police has been exhibited as Ex. PW4/A. The photographs of the dead body have been marked as Mark X-1 to Mark X-13 and the TIP proceedings of the case property have been exhibited as Ex. PW4/B.
19.PW-4 has further stated that her supplementary statement was also recorded by the police in respect of the articles which were robbed by the accused persons. Three pairs of the ear rings identified by PW-4 have been exhibited as Ex. P4/1 and the ring has been identified as Ex. P4/2. CD Mark X-1 was played during the examination in chief of PW-4 and after perusal of the CD, the witness states that 1:24:49 two persons had come on motorcycle and at 1:53;17 both the same persons had come out and sat on the motorcycle in different clothes and the pillion rider was wearing T-shirt of orange colour belonging to her deceased husband. PW- 4 has further stated that both the persons who were appearing in the CD appeared exactly looking like the persons present in the court on that day. PW-4 has further stated that "Jo T- shirt Pehne Hue ladka CD me dikhai de raha hai, wo ladka bilkul waisa hi hai jo aaj court me maujad hai", Dusra Ladka bhi usse matching hai", " Maine 2 Ladkiyan CD mai bhagte hue dekhi hai, jo court me accused hai or aaj maujad hai".
20.The next witness examined by the prosecution is PW-5. HC Khyali Ram, who was the Duty Officer on 25.06.2014 with PS Rajinder Nagar. On receipt of information through wireless operator at about 6:25 PM, he recorded the DD No. 24A as Ex.
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 12 of 61 PW5/A pertaining to the call which was received from mobile number 9810353135. The wireless operator stated that " H. No. S-433, First Floor, New Rajinder Nagar, caller lady keh rahi he ki ghar me ghuskar mere pati ko nanga karke maar rahe hai be injured". Second information received at 6:20 PM from mobile number 9555292658 was recorded by PW-5 as DD No. 25 A which has been exhibited as Ex. PW5/A. PW-5 recorded the FIR No. 292/2014 under section 302 IPC at about 8:50 PM on the basis of rukka which was sent by Inspector Vikram Singh Rathi through Ct. Ramjilal. Copy of the FIR has been exhibited as Ex. PW5/C, endorsement on the rukka as Ex. PW5/D, the certificate under section 65 B of Indian Evidence Act as Ex. PW5/E.
21. Ct. Ramjilal, who had brought the rukka to the police station, has been examined as PW6 and he went to the spot alongwith SI Balmukund.
22. PW-7 is Sh. Akarsh Bajaj, the nephew of the deceased and he identified the dead body of his uncle Tarun Bajaj vide identification statement Ex. PW6/A prior to the post mortem.
23. PW-8 is Smt. Ram Dulari, the mother of the accused Munni and she stated that as per certificate issued by the MCD Mark X-1 on record, the date of birth of the accused Munni was 08.04.1995.
24.Dr. Ankit Gupta, Sr. Resident, RML, Hospital has been examined as PW-12 and this witness prepared the MLC No. 46232 of the accused Munni on 28.06.2014 as Ex. PW12/A, the MLC No. 46233 of the accused Mohit Sharma on 28.06.2014 as Ex. PW12/B, the MLC No. 46234 of the accused Suraj on SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 13 of 61 28.06.2014 as Ex. PW12/C and the MLC No. 46235 of the accused Pooja on 28.06.2014 as Ex. PW12/D. As per PW-12, there were injuries over left index and left middle finger of the accused Munni, caused by sharp object and the injuries were 3-4 days old. The accused Suraj Singh @ Sahil was also having injuries on his hands which were caused by sharp object and the injuries 3-4 days old. However, as per PW-12, no fresh injuries were noticed on the body of accused Pooja. The injury on the right little finger of the accused Mohit Sharma has been opined to be caused by sharp edge weapon and 3-4 days old.
25.Dr. Rishi Solanki, SR. from the department of Forensic Medicine, MAMC has been examined by the prosecution as PW-13 and this witness conducted the post mortem on the body of the deceased Tarun Bajaj on 26.06.2014 at about 11:20 AM. As many as 21 injuries having mentioned by PW-13 in the PM report No. 590/14 of the deceased which has been exhibited as Ex. PW13/A. The subsequent opinion has been given by PW-13, wherein, PW-13 stated that injuries No. 1 to 21 on the body of the deceased mentioned in PM report were possible by the weapon of offence, which has been exhibited as Ex. PW13/B.
26.Dr. B. K. Mohapatra, SR. Scientific Officer, Biology, CFSL, Lodi Road, Delhi has been examined by the prosecution as PW- 14 and this witness has deposed that as many as six samples were lifted from the spot after visiting the scene of crime ie. from plot No. F-433, F Block, Rajinder Nagar, Delhi on 25.06.2014 for collection of biological clue materials. This SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 14 of 61 witness has exhibited the scene of crime visiting report as Ex. PW14/B.
27.The next witness examined by the prosecution is PW-15 SI Rajan Singh who had visited the post panditwadi Dehradun falling under the jurisdiction of PS Dehradun Cantt. on 27.06.2014 and apprehended three accused persons namely Suraj @ Sahil, Pooja and Mohit from Dhartawal Kavdi Road, Dehradun. PW-15 has deposed that a total of Rs. 1.5 lacs were recovered from the possession of the accused Suraj @ Sahil which were taken into possession vide memo Ex. PW15/A. The disclosure statement of accused Suraj has been exhibited as Ex. PW15/B, arrest memo as Ex. PW15/C and personal search memo as Ex. PW15/D. PW-15 has further stated that three pairs of ear rings were recovered from the possession of accused Pooja and the same were taken into possession vide memo Ex. PW15/E. Disclosure statement of accused Pooja has been exhibited as Ex. PW15/F. As per PW-15, the knife recovered from the possession of accused Mohit Sharma @ Sunny was taken into possession vide memo Ex. PW15/H, the bag containing the knife was taken into possession vide memo Ex. PW15/I. The arrest memo of accused Mohit has been exhibited as Ex. PW15/J and the personal search memo has been exhibited as Ex. PW15/K. The site plan of place of recovery has been exhibited as Ex. PW15/M. PW-15 further stated that on 28.06.2014, accused Munni was arrested at the instance of accused Pooja from H. No. B-2/49, Sultanpuri, Delhi. Disclosure statement of accused Munni has been exhibited as Ex. PW-15/N, SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 15 of 61 three pairs of ear rings identified by the accused Munni have been exhibited as Ex.P4/1 and one ring has been exhibited Ex. P4/2.
28. Sh. P. K. Gottam, Senior Scientific Officer, from CFSL, Delhi has been examined by the prosecution as PW-16 and he clicked the photographs of the spot and photographs of the Honda City car No. DL9CU1215. Developed photographs eight in number have been exhibited as Ex. PW16/1 to Ex. PW16/8, the CD prepared from the photographs has been exhibited as Ex. PW16/9.
29. Dr. Anurag Pandey, who was residing at the second floor of the house F-433, first floor, Rajinder Nagar, Delhi has been examined by the prosecution as PW-17 and this witness has stated that he was practicing as a doctor in Sir Ganga Ram Hospital and deceased Tarun Bajaj was residing at the first floor of the said house. PW-17 has further stated that on 25.06.2014 at about 6:30 PM, he had gone to the first floor of the said premises on calling of Rahul, servant of Tarun Bajaj. This witness has further stated that he found Ritu Bajaj, the wife of Tarun Bajaj, present at the first floor and that Smt. Ritu Bajaj was crying. PW- 17 has deposed that the deceased was lying in a pool of blood in his bedroom and he has also spoken about the multiple wounds on the body of deceased. PW-17 has stated that he had given a call at 100 number from his mobile number 9555292658. PW-17 has stated that the dead body was lying in a condition as shown in the photographs Mark PW17/1 to PW17/11.
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 16 of 61
30. Sh. B. Magesh Krishna Ratnam, Senior Scientific Officer, from CFLS, Delhi has been examined by the prosecution as PW-18 and this witness had taken the chance fingerprints Marked as Mark Q1 to Mark Q6 from the glasses of juice /glass tumblers found inside the kitchen, Q7 from blood stained print from right side wooden cupboard/almirach door (inner side), Q8 from left side wooden cupboard almirah door ( outer side), Q9 from rear view mirror of the aforesaid hondacity car. This witness has opined that chance print Q5 was matching with specimen right little impression of the accused Pooja. Crime scene inspection report has been exhibited as Ex. PW18/A by this witness and fingerprint examination report has been exhibited as Ex. PW18/B.
31.Ms. Budhiya, the friend of accused Pooja (wife of accused Suraj) has been examined by the prosecution as PW-19 and this witness identified the accused Suraj from the CCTV footage shown to her. This witness had given four mobile numbers 9654510908, 8375920773, 9953166772 and 9654366082 pertaining to the accused Suraj and Pooja to the police officials.
32.The next witness examined by the prosecution is Sh. Lalit Kumar Aggarwal as PW-20 and this witness has stated that he was the owner of the shop of hardware at the ground floor of his residence situated at Madipur, JJ colony, New Delhi. This witness has stated that two girls were in a muffled face had purchased two knives from his shop. This witness has correctly identified the two accused persons namely Munni and Pooja, who were SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 17 of 61 present in the court on that day. Pointing out memo has been exhibited as Ex. PW20/A by this witness. This witness has identified the two knives, which were purchased from his shop by the two accused persons namely Munni and Pooja. The two knives have been exhibited as Ex. P20/1 and Ex. P20/2.
33.The next witness examined by the prosecution is W/Ct. Poonam who has been examined as PW-21 and this witness had gone to Dharatawala, Dehradun where six bangles, two silver rings and hair clips were recovered from the accused Pooja. Arrest memo of the accused Pooja has been exhibited as Ex. PW21/A and personal search memo of the accused Pooja has been exhibited as Ex. PW21/B by this witness. Ct. Mahender Kumar has been examined by prosecution as PW-22,who joined the investigation with the IO on 28.06.2014. Accused Suraj Singh got recovered a knife from E-87, Karampura on 30.06.2014 as stated by PW-22. PW-22 exhibited the sketch of the knife as Ex. PW22/B, seizure memo of the knife as Ex. PW22/C, the pointing out memo dated 28.06.2014 as Ex. PW22/D, supplementary statement of the accused Suraj as Ex. PW22/E, site plan of the recovery of knife as Ex. PW22/F and knife recovered from the accused Suraj as Ex. P20/1. W/Ct. Laxmi has been examined by the prosecution as PW-23, who had joined the investigation with IO Inspector Vikram Singh Rathi and SI Rajan Singh on 28.06.2014. PW-23 has deposed that accused Munni was arrested from her house in her presence. PW-23 has exhibited the arrest memo of the accused Munni as PW23/A, jamatalashi as Ex. PW23/B, SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 18 of 61 disclosure statement of the accused Munni as Ex. PW23/C. PW23 has further stated that accused Munni had identified the place of occurrence vide memo Ex. PW23/D.
34. Dr. Shankar, who had treated the accused Suraj Singh, has been examined by the prosecution as PW24 and this witness stated that on 25.06.2014 at about 6:00 PM, accused Suraj had come to him and he was having injury on his hand. PW24 has further stated that the accused Suraj had disclosed to him that he received injuries, while, he was working in a factory. Ct. Ruby has been examined by prosecution as PW25, who had joined the investigation with the IO. PW25 has exhibited the pointing out memo of the spot at the instance of the accused Pooja as Ex PW25/A, blood sample seizure memo of the accused Pooja as Ex. PW25/B, additional disclosure statement of the accused Pooja recorded by the IO as Ex. PW25/C.
35.The next witness is Sh. Prabhati Deep S/o Yudhvir Singh, who has been examined as PW26 by the prosecution and this witness has stated that he is the friend of accused Mohit Sharma. This witness had given his bike bearing No. DL-10SA-1355 on the pretext of illness of the mother of the accused Mohit and the said motorcycle was found parked outside of the house of accused Mohit. Motorcycle has been exhibited as Ex. PW26/1. Sh. Yudhvir Singh, father of the PW26 Sh. Prabhati Deep, has been examined as PW-27. PW27 is the registered owner of the said motorcycle. The seizure memo of the said motorcycle has been exhibited as Ex. PW27/A. SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 19 of 61
36. Ct. Kapil has been examined as PW28 and he joined investigation with the IO on 05.07.2014. PW28 has stated that IO interrogated Suraj in his presence. Supplementary statement of the accused Suraj has been exhibited as PW28/A. Ct. Baljeet Singh has been examined as PW29 and this witness had joined investigation with the IO on 30.06.2014. PW29 states that accused Suraj got recovered a knife from the cooler kept in the room of his house bearing no. E-87, First Floor, Karampura, Delhi in his presence.
37.Master Rahul, the servant of the complainant and the deceased, has been examined as PW30 and this witness has stated that he had called the doctor, Dr. Anurag Pandey (PW-17), after seeing the dead body of the deceased at the house of the deceased on 25.06.2014.
38.Ct. Lokesh has been examined as PW31 who had joined the investigation with the IO on 28.06.2014. PW31 has exhibited the pointing out memo of the home of the deceased by the accused Mohit as Ex. PW31/A. Ct. Satender Singh has been examined as PW32, who had handed over the copy of FIR to the ACP, Karol Bagh and at the residence of the concerned MM on 25.06.2014.
39. HC Sharanvir Singh has been examined by the prosecution as PW33 and this witness had deposed that on 26.06.2014, he was working as MHC(M) with PS Rajinder Nagar on 26.06.2014 and a number of sealed exhibits and parcels were deposited by the IO with the Malkhana.
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 20 of 61
40. W/Ct. Suman Chahar has been examined as PW34 and this witness has stated that on 01.07.2014, IO had interrogated the accused Munni in her presence. Disclosure statement of the accused Munni has been exhibited as Ex. PW34/A, the seizure memo of the container containing the amount of Rs. 30,000/- has been exhibited as Ex. PW34/B and site plan of place of the recovery has been exhibited as Ex. PW34/I. PW34 further stated that all the recoveries were done from the matrimonial home of the accused Munni bearing no. B-3/9, First Floor, Sultanpuri, Delhi. W/Ct. Monika has been exhibited as PW35 and she had joined the investigation with the IO on 04.07.2014. As per PW35, accused Pooja was interrogated by the IO. Disclosure statement of the accused Pooja has been exhibited as Ex. PW35/A. PW35 has stated that accused Pooja got recovered a knife from her home at F-96, First Floor, Karampura, Delhi. Sketch of the knife has been exhibited as Ex. PW35/B, seizure memo of pullanda of the knife has been exhibited as Ex. PW35/C.
41. SI Gautam Malik has been examined by the prosecution as PW36 and this witness has deposed about all the investigations done by the IO of the case, interrogation of the accused persons, the recovery of the articles, about the statement of Lalit Kumar and about depositing of the articles with MHC(M). This witness has deposed on the lines of the charge-sheet filed by the IO.
42.Pawan Singh, Nodal Officer from Idea Cellular has been examined by the prosecution as PW37 and Israr Babu, Alternate Nodal Officer from Vodafone has been examined by the SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 21 of 61 prosecution as PW39. Both these Nodal officers have deposed about the CAF, CDR, mobile phone locations of various mobile numbers, the details of which were demanded by the IO during the investigation of the present matter.
43. Sh. Prayank Nayak, Ld. MM has been examined by the prosecution as PW38, who has deposed about the TIP proceedings of the accused Pooja and has stated that the accused Pooja refused to join the TIP proceedings. The application for TIP of the accused Pooja has been exhibited as Ex. PW38/A and her refusal has been exhibited as Ex. PW38/B. PW38 has also deposed about the TIP of the case property. The application for TIP of the case property has been exhibited as Ex. PW38/C and TIP proceedings in respect of the case property have already been exhibited as Ex. PW4/B, bearing the signature of the complainant Ritu Bajaj.
44.SI Bal Mukund has been examined by the prosecution as PW40, who had reached at the spot on 25.06.2014. PW40 has deposed about the DD No. 24A and 25A Ex. PW-5/A and Ex. PW-5/B on record. This witness has deposed about the investigation carried out by the IO on the lines of the charge-sheet filed by the IO. Inspector Mahesh Kumar has been examined by the prosecution as PW41 and he prepared the site plan Ex. PW41/A on record of the Flat bearing no. F-433, First Floor, New Rajinder Nagar, Delhi on 07.08.2014 at the instance of the IO.
45.W Ct. Pinki has been examined as PW42 and this witness had deposed about the memo Ex. PW20/A. This witness joined the SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 22 of 61 investigation with the IO on 04.07.2014 and as per this witness, Accused Munni, Pooja and Mohit led to Shop no. D-37, Ground Floor, Madipur, JJ Colony, Delhi. This witness has further deposed about the purchasing of the three knives by the above said three accused persons from PW20 Lalit Kumar.
46.Sh. Chander Shekhar, Nodle officer from Bharti Airtel Ltd. has been examined as PW43 and this witness has deposed about the CDR and CAF of mobile number 9818859885 and mobile number 9871813560. Attested copy of CAF of mobile number 9818859885 in the name of the deceased Tarun Bajaj has been exhibited as Ex. PW43/E, DL of Tarun Bajaj as Ex. PW43/F, CDR as Ex. PW43/G, Cell ID Chart as Ex. PW43/H and certificate u/s 65B of Indian Evidence Act as Ex. PW43/J.
47.The next witness examined by the prosecution is PW44 Vinod Khanna R/o F-437B, First and Second Floor, New Rajinder Nagar, Delhi who deposed that in total four cameras were installed in his house, out of which one was facing the lane adjacent to his house. PW44 deposed that the police officials wanted the CCTV footage of 25.06.2014 and IO served a notice Ex. PW44/A requiring the DVR and CCTV footage. Seizure memo of the DVR has been exhibited as Ex. PW44/D, CD as Ex. PW44/C, certificate u/s 65B of the Indian Evidence Act as Ex. PW44/D. CD mark X1 was taken out and played which was containing four files and the witness identified all the four files played in the court from the above said CD. The CD has been exhibited as Ex. PW44/E. SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 23 of 61
48.Ct. Gyatri has been examined as PW45 and this witness has deposed that on 25.06.2014, she was posted at CPCR as Constable. This witness has further stated that telephonic information in the control room was received on 25.06.2014, the same was recorded and transmitted to District Net Command Room. PCR call form has been exhibited as Ex. PW45/A and certificate u/s 65B of the Indian Evidence Act has been exhibited as Ex. PW45/B.
49.Dr. Dhruv Sharma, Asstt. Director Biology from FSL has been examined as PW46 and this witness has deposed that 19 sealed parcels were received in FSL on 08.07.2014 in connection with FIR no. 292/2014 PS Rajinder Nagar, Delhi.
50.Dr. Palak Lata Verma has been examined as PW47 and she examined the Viscera of the deceased Tarun Bajaj. This witness has deposed that no metallic poisons, ethyl, methyl alcohol, Cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides were found in the viscera of the deceased.
51.Dr. Virender, Asstt. Director from FSL has been examined as PW48 and this witness has submitted the detailed report w.r.t. the examination of DVR as Ex. PW48/A.
52.W Ct. Seema has been examined as PW49 and this witness has deposed that she was posted as Constable with CPCR. This witness has exhibited the copy of the PCR call form as Ex. PW49/A and the certificate u/s 65B of the Indian Evidence Act as Ex. PW49/B. SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 24 of 61
53.The last witness examined by the prosecution is PW50 Inspector Vikram Singh Rathi who was the IO of the present case. This witness has deposed about the entire investigation conducted by him on the lines of the charge sheet.
54.After the conclusion of the prosecution evidence, the statements of all the four accused persons were recorded u/s 313 of the Cr.P.C., wherein, all the incriminating evidence was put to the accused persons. The accused persons, in their respective statements u/s 313 of the Cr.P.C., denied all the incriminating evidence put to them and stated that they were innocent, falsely implicated in the present case by the police officials and that all the recoveries were planted. The three accused persons namely Suraj, Pooja and Mohit have taken the stand that they were arrested from their respective houses situated at Delhi and not from Dharatawala, Dehradun as alleged by the prosecution.
55.No evidence in defence has been led by the accused persons.
56.I have carefully gone through the entire material available on record and heard the rival submissions of the ld. Counsels for the accused persons and that of the Ld. Addl. PP for the State. I have also meticulously perused the written arguments filed on record by the complainant and by one of the accused namely Mohit Sharma @ Sunny. Ld. Counsels for the rest of the three accused persons have not filed on record any arguments in writing.
57.The case of the prosecution, in nutshell, is that on 25.06.2014 from 10:00 AM to 06:25 PM, at house no. F-433, First Floor, New Rajinder Nagar, Delhi, within the jurisdiction of PS SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 25 of 61 Rajinder Nagar, Delhi, all the four accused persons in furtherance of their common intention committed robbery of Rs. 3 lacs, three pair of ear rings, one ring, and two silver katori(bowls) from the house of the complainant Ritu Bajaj armed with deadly weapon i.e. knives and caused the death of the deceased Tarun Bajaj, husband of the complainant, in pursuance to the criminal conspiracy.
58.The case of the prosecution is squarely based upon the circumstantial evidence as there is no last seen evidence and there is no eye witness to the brutal murder of the deceased. It is well settled that in a case of circumstantial evidence, the circumstances from which the conclusion of guilt is drawn, must be fully proved and such circumstances must be conclusive in nature. It is again the settled law that the chain of circumstances must be complete and there must not be any gap left in the chain of evidence. It is also the settled law that the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with the innocence of the accused.
59.The Hon'ble Supreme Court of India in Judgment titled as 'Sharad Bridhichand Sarda Vs. State of Maharashtra cited as (1984) 4 SCC 116' has laid down the five golden priciples for appreciation of circumstantial evidence and has termed the same as Panchsheel of the Proof of Case based on circumstantial evidence. The said five golden principles are as follows:-
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 26 of 61 i. The circumstances from which the conclusion of the guilt is to be drawn should be and not merely 'may be' fully established. ii. The facts so established should be consistent only with the hypotheses of the guilt of accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty.
iii. The circumstances should be of conclusive nature and tendency.
iv. They should exclude every possible hypotheses except the one to be proved.
v. 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 and must show that in all probability the act must have been done by the accused.
60.Thus, before recording the conviction of any accused in a case based on circumstantial evidence, the abovesaid five conditions must be satisfied. The prosecution has to establish its case on the basis of abovesaid five golden principles and to secure conviction of any accused, the prosecution must fulfill the following requirements:-
i. The circumstances from which the inference of the guilt of the accused is to be drawn must be firmly established.
ii. The established circumstances must be of such definite tendency that points out towards the guilt of accused.
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 27 of 61 iii. The chain of the circumstances must be so complete and there should not be any snap in the chain of circumstances.
iv. The chain of circumstances must be so complete and incapable of any other hypotheses then that the guilt of the accused and same should also be inconsistent with the innocence of the accused and must exclude every other possible hypotheses except with the hypotheses pointing out towards the guilt of the accused.
61.The principle, which has been enumerated in the above stated judgment of the Hon'ble Supreme Court of India in the case titled as Sharad Bridhichand Sarda Vs. State of Maharashtra cited as (1984) 4 SCC 116 has been reiterated by the Hon'ble Supreme Court of India in the recent judgment cited as 2022 SCC OnLine SC 1396 titled as Ramanand @ Nandlal Bharti Versus State of Uttar Pradesh, wherein, in paras no. 45 to 48, Hon'ble Supreme Court of India, has held as under:-
"45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:
a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; & SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 28 of 61
b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).
46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
3. The circumstances, if taken cumulatively, should form 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; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.
47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 29 of 61 reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard.
48. A three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 30 of 61 conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so hypothesis of should not be the accused is established should be consistent only with the the guilt of the accused, that is to say, they explainable on any other hypothesis except that guilty, SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 31 of 61 (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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 and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
62.Going by the ratio of the above stated judgments, which have laid down the five golden principles, applicable in a case of circumstantial evidence, the vital question to be considered by this court is as to whether the prosecution has been able to prove the existence of the circumstantial evidence so as to form a chain so concrete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused persons and by none else. This court has to consider and see as to whether the prosecution has been able to bring home the guilt of the accused persons beyond any reasonable doubt by applying the above said standard, as laid down in the above stated judgments.
63.In the written arguments filed on record by the complainant, relying upon the ratio of the judgment titled as G. Parshwanath Vs. State of Karnataka cited as (2010)8SCC593, it has been argued SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 32 of 61 that there cannot be any predetermined number of circumstances, necessary to complete the chain and the existence of the circumstances vary from case to case. The complainant, in the written arguments, has enumerated as many as six circumstances. The complainant has alleged that the first circumstance involved in the present matter, is that the death was unnatural and homicidal in nature; the second circumstance is that the accused persons had the requisite opportunity and motive to commit their crimes as there were frequent calls of the accused Pooja with the deceased as per the analysis of the CDR of the deceased; the third circumstance is that the accused persons were seen near the house of the deceased in the afternoon of 25.06.2014 and they have been identified in the CCTV footage; the fourth circumstance is that the chance prints of the accused Pooja were found on the glass juice tumbler lifted from the spot and the DNA profile generated from the source of Ex. 5(cotton wool swab from bedroom 1), 6(2)(cutting from bed sheet) and 10(currency notes) were found to be similar to the DNA profile generated from the source of Ex. 17(blood sample of accused Suraj); the fifth circumstance is that the stolen currency notes and jewellery were recovered from the possession of the accused persons and the sixth circumstance is that the knives recovered from the possession of the accused Pooja, Suraj and Mohit were the knives which caused the injuries upon the person of the deceased.
64.The Ld. Addl. PP for the State has also addressed the arguments on the lines of the above said arguments in writing placed on record SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 33 of 61 by the complainant. Ld. Addl. PP for the State has argued that the prosecution has been able to prove the complete chain of circumstances pointing towards the guilt of the accused persons, consistent only with the guilt of the accused persons.
65.Whereas, on the other hand, in the written arguments filed on record by the ld. Counsel for the accused Mohit Sharma @ Sunny, it has been argued that the prosecution has utterly failed to prove on record the chain of circumstances, in order to bring home the guilt of the accused persons. It has been further argued that from DD no. 24A dated 25.06.2014 received at PS Rajinder Nagar at 06:25 PM Ex. PW5/A on record(Caller lady keh rahi hai ghar mein ghus kar mere pati ko nanga kar ke mar rahe hain), it appears that PW4 Ritu Bajaj w/o the deceased is the eye-witness to the incident but PW4 is not the eye-witness to the incident in question. It has been further argued that the mobile no. 9810353135 of PW4 is existing in the name of Neetas Creation but IO did not investigate this aspect and did not attach the call details of the said mobile phone number. It has been further argued that IO did not enquire about the location of the complainant PW4 through call details and the prosecution is silent about the original keys of the house. It has been further argued that the whole proceedings of inquest and investigation are silent about the blood relations of the deceased as they have never been examined by the prosecution, despite the fact that the mother and brother of the deceased were residing in the locality at F-300, New Rajinder Nagar, Delhi. It has been further argued that IO did not place any documentary proof to show that SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 34 of 61 the complainant/ wife of the deceased was present at her work place i.e. Delhi State Legal Supply, Aram Bagh, Delhi on the relevant date and time. It has been further argued that Ex. PW18/A, Ex. PW18/B, Ex. PW18/C and Ex. PW18/D proved on record by PW18, Sh. B Mangesh, Senior Scientific Officer are not having any link with the accused Mohit Sharma as the report is negative. It has been further argued that the notice to produce the DVR and CCTV footage was served upon PW44 Sh. Vinod Khanna on 26.06.2014 but the seizure memo of the DVR was prepared on 16.07.2014 vide Ex. PW44/B and as such, the alleged DVR was taken into possession after 20 days after the service of the notice which creates a doubt on the CCTV footage and the DVR. It has been further argued that as per the prosecution story, accused Mohit Sharma was arrested from the house of Kamla Devi w/o Mahender Singh R/o Dharatwala Panditwari, Dehradun but even the house number of Kamla Devi has been mentioned and Kamla Devi has not been cited as a witness by the prosecution. It has been further argued that there is no public witness or independent witness, either at the time of the arrest of the accused persons or at the time of the alleged recovery of the stolen articles and thus, a serious doubt is casted on the case of the prosecution. It has been further argued that none of the police officials from the police post Panditwari, who were along with the raiding party, as per the case of the prosecution has been examined or cited as a witness by the prosecution. It has been further argued that no documents pertaining to the ownership of the house of Kamla SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 35 of 61 Devi have been placed on record by the prosecution and thus a serious doubt is casted on the aspect of the place of arrest and place of recovery. It has been argued that the blood stained clothes, which were worn by the accused Mohit Sharma, at the time of the incident have not been recovered by the IO, then, how it was possible that the accused Mohit Sharma was having with him, the weapon of offence. It has been further argued that PW20 Sh. Lalit Kumar Aggarwal, from whom, the alleged three knives which constitute the weapon of offence, in the present case, has failed to identify the present accused Mohit Sharma and has failed to support the case of the prosecution. It has been further argued that PW26 Sh. Prabhat Deer and PW27 Sh. Yudhvir Singh, during their evidence, have not supported the case of the prosecution. It has been further argued that the IO failed to conduct the judicial TIP of the accused Mohit. It has been further argued that the alleged recovery of the currency notes and knife at the instance of the accused Mohit Sharma is fake and fabricated as accused Mohit Sharma is not linked with the crime from any angle.
66.Ld. counsels for the rest of the three accused persons, who have not filed on record their arguments in writing, have argued on the lines on which, ld. Counsel for the accused Mohit Sharma has argued. Ld. Counsels for the accused persons namely Munni @ Moni, Suraj @ Sunny and Pooja have also argued that the entire recovery has been planted upon the accused persons because not even a single independent witness has been joined by the IO despite the availability of the independent witnesses and despite SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 36 of 61 the fact that the houses of the accused persons, even as per the prosecution story, are located in a thickly populated area. It has been further argued that the arrest of the accused persons from Dehradun is fake as the IO arrested the accused persons from Delhi itself. It has been further argued that the mobile number of Sh. Shailender Sharma who had allegedly seen the two accused persons was in the name of his company but none of the officials of the company has been examined by the prosecution to show that PW3 Sh. Shailender Sharma was having mobile number 8588859704 with him on 25.06.2014. It has been further argued that as per the prosecution story, PW19 Budhiya had provided four mobile numbers bearing no. 9654510908, 8375920773, 9953166772 and 9654366082 allegedly belonging to the accused Suraj and Pooja but the prosecution has failed to prove that the above said four mobile numbers were being used by accused Suraj and Pooja and admittedly, the above said mobile numbers are not in the names of the accused Suraj and Pooja. It has been further argued that allegedly, the accused persons had entered into the house of the complainant and the deceased but there is no CCTV footage to show the same. It has been further argued that the testimony of the recovery witnesses PW15 SI Rajan Singh, PW23 Ct. Lakshmi, PW21 Ct. Poonam, PW29 Ct. Baljeet Singh, PW34 W Ct. Suman Chahar, PW35 W Ct. Monika and PW50 IO Vikram Singh Rathi is not reliable and trustworthy at all. It has been further argued that the testimony of PW19 Budhiya and PW20 Lalit Kumar Aggarwal is also not reliable and trustworthy. It has SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 37 of 61 been further argued that the prosecution has utterly failed to link the accused persons to the crime. It has been prayed that all the four accused persons be acquitted of the charges levelled against them by the prosecution.
67.Going by the above said arguments advanced by the complainant, by the ld. Addl. PP for the State, by the ld. Counsels for the accused persons, as stated hereinabove, the vital question to be considered by this court is as to whether, the prosecution has been able to bring home the guilt of the accused persons by showing that the chain of the circumstances leading to the guilt of the accused persons is complete in the case in hand.
68.Evidence pertaining to recovery of currency notes, jewellery and weapon of offence:-
i. As per the case of the prosecution, Rs. 3 lacs, three pairs of ear tops, one ring and two silver katoris were found to be missing from the house of the deceased and the complainant i.e. from House no. F-433, First Floor, New Rajinder Nagar, Delhi. As per the IO, the complainant PW4 disclosed about the above said articles only in her supplementary statement which was recorded by the IO in the intervening night of 25-26/06/2014. As per the case of the prosecution, Rs. 1.5 lacs were recovered from the accused Suraj and the same were taken into possession vide memo Ex. PW15/A. The currency notes have been exhibited as Ex. PW15/1. Three pairs of ear tops and one ring were recovered from the accused Pooja from the accused SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 38 of 61 Pooja which were taken into possession vide memo Ex. PW15/E. Three pairs of ear tops have been exhibited as Ex. P- 4/1 and one ring has been exhibited as Ex. P-4/2. Rs. 30,000/- were recovered from possession of accused Pooja which have been exhibited as Ex. P-30/1 and Rs. 30,000/- were recovered from the possession of accused Munni which have been exhibited as Ex. P-34/1. Three knives were also recovered as per the case of the prosecution from the accused Mohit, Suraj and Pooja. The knife which was recovered from possession of the accused Mohit Sharma has been exhibited as Ex. P-15/2, the knife recovered from the possession of the accused Suraj has been exhibited as Ex. P-20/1 and the knife which was recovered from possession of the accused Pooja has been exhibited as Ex. P-20/2.
ii. It has to be seen that the settled law pertaining to the recovery u/s 27 of the Indian Evidence Act is that recovery must satisfy the conscience of the court and recovery must not be doubtful. The basic idea embedded in Section 27 of the Indian Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It has to be seen that in a recent judgment titled as Subramanya Vs. State of Karnataka cited as MANU/SC/1326/2022 arising out of criminal appeal no. 242/2022 decided on 13.10.2022, the SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 39 of 61 Hon'ble Supreme Court of India in para no. 76, 77 and 78 thereof has held as under:-
"76. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:
27. How much of information received from Accused may be proved.--
Provided that, when any fact is deposed to as discovered in consequence of information received from a person Accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the Appellant herein which ultimately led to the discovery of a fact relevant Under Section 27 of the Evidence Act.
78. If, it is say of the investigating officer that the Accused Appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the Accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the Accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the Accused should be incorporated in the first part of the panchnama that the investigating officer may draw in SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 40 of 61 accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the Accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other Article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the Accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the Accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other Article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated Under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
iii. In the case in hand, PW15 SI Rajan Singh, PW21 Ct. Poonam, PW22 Ct. Mahender Kumar, PW23 Ct. Lakshmi, PW29 Ct. Baljeet Singh, PW34 W/ Ct. Suman Chahar, PW35 W/ Ct. Monika, PW36 SI Gautam Malik and PW50 IO SI Vikram Rathi are the main recovery witnesses. PW15 SI Rajan Singh, in the cross-examination, states that no public persons joined the investigation during the course of recovery. PW15 further states that IO had not prepared any memo showing the description of the jewellery articles and he had also not taken any photo of the jewellery articles recovered from the possession of the accused Pooja. PW50 IO of the case states that the details of jewelleries were given by the complainant PW4 only in her supplementary statement. PW50, in the cross-
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 41 of 61 examination, states that he had asked about the possession receipt of the jewellery from Ms. Ritu Bajaj upon which she had stated that she had produced the same before the court. PW50 further states that he does not remember if Ms. Ritu Bajaj had stated about the description of jewelleries. PW4, who is the wife of the deceased and who is the complainant in the present case, states that the jewellery articles which were identified by her in her court were given by her husband in a gift and she was not having the ownership proof of the same. PW4 further states that she cannot tell the name of the shop from where her husband had purchased the aforesaid jewellery articles. PW4 further states that she had not provided any details/ source of possession of Rs. 3 lacs in her house. The testimonies of the rest of the recovery witnesses is also on the same lines as is the testimony of PW15 and PW50, IO of the case. The recovery witnesses have categorically stated that none of the public witnesses was joined at the time of recovery of the currency notes or the jewellery articles despite the availability of the public witnesses. As per the IO of the case, there was no identification mark for identification of the jewellery and no photograph to this effect was provided by the complainant PW4. Similarly, IO of the case has stated that no identification mark was put even on the currency notes. The recovery witnesses have deposed that the accused persons were interrogated, while they were in custody but no independent witness was called or joined by the IO either at the time of SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 42 of 61 making of such statements by the accused persons or at the time of the recovery from the accused persons. As per the law laid down by the Hon'ble Supreme Court of India in the above stated matter titled as Subramanya Vs. State of Karnataka, the involvement of the independent witnesses was a must at the time of recovery of the currency notes or the jewellery articles but in the case in hand, no public witness is involved by the IO of the case either at the time of recovery of the currency notes or at the time of jewellery articles. Furthermore, I am of the opinion that the prosecution has failed to bring home the point that the alleged currency notes were the same currency notes which were the subject matter of the alleged robbery from the house of the deceased. PW50, IO of the case, in the cross- examination, admits that no videography or photography of the currency notes was got done by him. The factum of the alleged robbery was allegedly disclosed by the complainant PW4 only in her supplementary statement. Going by the evidence on record and the law laid down in the above stated judgment, I have no hesitation to hold that the recovery of currency notes and the jewellery in the case in hand is not only doubtful but the same does not satisfy the conscience of the court.
iv. I am of the opinion that the same is the fate so far as the recovery of the weapon of offence is concerned. Three knives are the weapon of offence in the case in hand. As per the case of the prosecution, all the three knives were purchased by the three accused persons namely Mohit, Suraj and Pooja from the SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 43 of 61 shop of PW20 Lalit Kumar Aggarwal. PW20 Lalit Kumar Aggarwal resiled from his previous statement and he was cross-examined by the ld. Addl. PP for the State so far as the accused Mohit Sharma is concerned. PW20 only identified the two accused persons namely Munni and Pooja who had purchased the knives from the shop of PW20. PW20, in the cross-examination, admits that he used to issue the bills at the time of sale of the items but no bill qua the three knives which were allegedly purchased by the above said three accused persons from PW20 was produced by him in the court. PW20 admits that there were other shops in the vicinity of his shop and the same kind of knives could be bought from the other shops which were already on the main road. PW20, in the cross-examination, further states that usually 40-50 customers were visiting his shop daily and he may not be able to identify all customers. The recovery witnesses have deposed that despite the availability of the public witnesses, no witness was joined to be a witness of recovery. PW50, the IO of the case in the cross-examination, states that no witness joined at the shop of PW20 Lalit Kumar Aggarwal. PW35 W/ Ct. Monika has stated that the wearing clothes were thrown into Ganga by the accused persons namely Suraj, Pooja and Mohit, who were allegedly apprehended from Dharatwala, Dehradun by the IO of the case. As such, I am of the opinion that it has been rightly argued by the ld. Counsels for the accused persons that why the accused Mohit would keep the knife i.e. the weapon of offence SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 44 of 61 with him, in case, the wearing clothes were thrown into the Ganga. In these circumstances, applying the law laid down by the Hon'ble Apex Court of the Land in the above stated judgment of Subramanya Vs. State of Karnataka, the recoveries of the weapon of offence from the accused persons is also highly doubtful and the same does not inspire the confidence of the court.
69.Evidence pertaining to the arrest of the three accused persons namely Suraj, Pooja and Mohit:-
i. As per the case of the prosecution, the above said three accused persons namely Suraj, Pooja and Mohit were apprehended from Dharatwala, Dehradun from the house of Kamla Devi, the Mausi(maternal aunt) of the accused Mohit Sharma. It has to be seen that from the cross-examination of PW15 SI Rajan Singh, from the cross-examination of IO PW50 and from the cross- examination of the rest of the witnesses as well, it is evidently and apparently clear that Kamla Devi has not been cited as a witness by the prosecution. No signatures of Kamla Devi are there on the arrest memo and personal search memo of the above said three accused persons. Even the house number of Kamla Devi has not been mentioned. PW15, in the cross- examination, states that there were houses situated near the aforesaid house from where the above said three accused persons were apprehended but none of the neighbours were joined as a witness. PW15, in the cross-examination, further states that he cannot tell as to how, IO was able to identify the SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 45 of 61 accused persons namely Pooja, Mohit and Suraj. None of the police officials from police post Panditwadi who had allegedly accompanied the IO and the rest of the police officials from Delhi to the house of Kamla Devi have been cited or examined by the prosecution as a witness. PW50, in the cross- examination, states that he had not obtained any documentary proof in order to support that accused Mohit Sharma was present in Dharatwala, Dehradun on 27.06.2014. IO of the case admits that he had not recorded statement either of any local police official or of any public person in order to support that the accused persons were present in Dharatwala, Dehradun on 27.06.2014. PW50 further states that no public/ independent witness had accompanied them to the vacant plot, wherein, a room was constructed at Dharatwala in Dehradun. PW50, in the cross-examination, admits that besides the three accused namely Pooja, Suraj and Mohit, Ms. Kamla was also present in the room constructed on vacant plot in Dehradun. In the light of the cross-examination of the IO of the case and the rest of the police officials, I have no hesitation to hold that the arrest of the three accused persons namely Suraj, Pooja and Mohit from Dharatwala, Dehradun is highly doubtful.
70.Evidence pertaining to the mobile numbers:-
i. As per the prosecution case, PW3 Shailender Sharma was using the mobile number 8588859704, the deceased Tarun Bajaj was using two mobile numbers 9871167484 and 9818859885. PW4 Ritu Bajaj was also using two mobile SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 46 of 61 numbers 9810353135 and 9811210121. PW19 Ms. Budhiya had provided four numbers to the IO of the case which were being allegedly used by the accused Suraj and Pooja(wife of accused Suraj) and those four numbers are 9654510908, 8375920773, 9953166772 and 9654366082. As per the testimony of PW39 Isral Babu, alternate Nodal Officer from Vodafone, as per the CAF, CDR and ID proof of mobile number 9654510908, the said mobile was in the name of Prakash Singh, mobile number 8375920773 was in the name of Prakash Singh, mobile number 9953166772 was in the name of Ram Chander and mobile number 9654366082 was in the name of Santosh Kumari. Mobile number 9871167484, as per the testimony of PW37, Mr. Pawan Singh, Nodal Officer from IDEA Cellular was in the name of the deceased Tarun Bajaj and as per the testimony of PW43 Sh. Chandra Shekhar, Nodal Officer from Bharti Airtel Ltd., mobile no. 9818859885 was also in the name of the deceased Sh. Tarun Bajaj.
ii. Thus, all the four mobile numbers, which were allegedly used by the accused persons namely Suraj and his wife Pooja were not in the names of the accused persons. The prosecution has failed to examine the respective allottees of the above said mobile numbers, who could have testified to the effect that the above said mobile numbers were given by them to the accused persons and they were the actual users of the same. The prosecution has failed to seize the Sim Cards of the above said mobile numbers despite the fact that the accused persons SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 47 of 61 namely Suraj, Pooja and Mohit were apprehended from Dharatwala, Dehradun and the police officials had reached there while tracking the mobile phone locations of the said mobile numbers.
iii. As such, I have no hesitation to hold that the prosecution has utterly failed to prove any link of the above said mobile numbers with the commission of the crime or to show that the accused persons were in constantly touch with each other or to show that the accused persons were in touch with the deceased on the date and time of the alleged offence.
71.Evidence pertaining to the motive of the commission of the offence:-
i. As per the prosecution story, the robbery was the motive behind the brutal murder of the deceased. The prosecution has alleged that accused Pooja was in contact with the deceased Tarun Bajaj and the accused persons were aware that the deceased was having a lot of money in his house and that is why, the conspiracy was hatched to commit the offence.
ii. It is true that criminals lay their plot in secret and execute it ruthlessly under the cover of darkness without leaving any trail behind but in the case in hand, no evidence has been brought forward by the prosecution to show the hatching of the criminal conspiracy by the accused persons. As per the disclosure statement of accused Suraj, the deceased Tarun Bajaj was having illicit relation with his wife accused Pooja and when she SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 48 of 61 became pregnant, the deceased stopped giving any money to her. It is true that disclosure statement is not admissible but as discussed hereinabove, recovery has not been proved at all, in the case in hand, by the prosecution. The prosecution has cited and examined Ms. Budhiya as PW19 and she claims that she was in constant touch with the deceased. As per the prosecution story, PW19 has identified one of the accused persons namely Suraj but even PW19 has failed to disclose as to why, she was in constant touch with the deceased. As such, I am of the opinion that even the motive of the alleged accused persons in committing the heinous offence, is not clear in the case in hand.
72.Evidence pertaining to the DVR and CCTV footage produced on record by PW44 Vinod Khanna:-
i. As per the case of the prosecution, PW44 Vinod Khanna is a R/o F-437B, New Rajinder Nagar, Delhi, whereas, the incident took place at F-433, New Rajinder Nagar, Delhi. PW44, in his examination-in-chief, states that the house of the deceased was situated at 250-300 metres from his house. PW44, in the cross- examination, states that the house of Tarun Bajaj is not visible from his house. PW44 states that I cannot tell whether Inspector Vikram had put any signature or endorsement on the DVR and CD or had obtained his signatures thereon. At the time of collection of the DVR and CD, which were admittedly collected by the IO, later on, after issuance of the notice to PW44, no public witness was present. PW44 was not able to SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 49 of 61 produce any receipt to show that he had purchased the CCTV cameras which were allegedly installed in his house.
ii. PW50, IO of the case, admits in the cross-examination that he does not remember whether he had collected any documentary proof from PW44 to show that the CCTVs were installed in his premises. PW50 states that he does not remember the date when he had collected CCTV footage of F-437B. PW50 further states that he had not collected any documentary proof regarding the ownership of F-437B, New Rajinder Nagar, New Delhi and no independent public witness was ready to join the investigation for seizure of DVR and CCTV footage.
iii. As per the IO, there is no CCTV footage to show that the accused persons had entered into or came out of the house of the deceased Tarun Bajaj at the relevant date and time. PW44 has stated that the notice Ex. PW44/A to produce the DVR and the CCTV footage was served upon him by the IO on 26.06.2014 but the CCTV footage and the DVR were seized vide seizure memo dated 16.07.2014 Ex. PW44/B on record.
There is no explanation as to why, the CCTV footage and the DVR were collected by the IO after a period of 20 days from the date of service of the notice Ex. PW44/A. iv. Going by the relevant part of the cross-examination of the IO of the case and that of PW44 as well, I am of the opinion that the testimony of PW44 and seizure of the DVR and CCTV footage is not trustworthy and reliable.
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 50 of 61
73.As per the prosecution case, PW3 Mr. Shailender Sharma was using mobile number 8588859704 but as per the own admission of PW50, IO of the case, CDR of the mobile phone of PW3 has not been collected and placed on record. It has to be seen that PW3 states that the above said mobile number was given to him by his company namely Albert Son's International Pvt. Ltd. but no witness has been cited or examined from the side of the employer of PW3 to show that the above said mobile number was given to PW3 by his employer.
74.Furthermore, it has to be seen that the CDR and location of the mobile number of the complainant PW4 Ritu Bajaj has not been proved on record by the prosecution to show that PW4 was in her office till 05:00 or 05:30 PM on 25.06.2014 or that she had come to residence back at about 06:00 or 06:15 PM.
75.To my mind, it has been rightly argued by the ld. Counsels for the accused persons that the prosecution has failed to point out the evidence pertaining to the original keys of the house of the deceased. Admittedly, PW4 opened the door which was locked from the duplicate keys which were kept by her in her purse. There is no explanation as to where the original keys of the said house were.
76.Ld. counsel for the complainant, in the written final arguments, has argued that after hatching the conspiracy to commit robbery and murder of the deceased, on 25.06.2014, accused Pooja and Munni had gone to the house of the deceased and the deceased SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 51 of 61 Tarun Bajaj opened the door, after which the accused Pooja and Munni entered into the house. The deceased asked accused Pooja to get juice from the kitchen where she mixed sleeping pills in the juice of the deceased because of which it became easy for the accused persons to commit robbery and murder. Subsequently, accused Suraj and Mohit were called by the accused Pooja and Munni inside the house, where they committed murder and robbery. However, it has to be seen that the prosecution has examined Dr. Kanak Lata Verma as PW47 who has placed on record the viscera report as Ex. PW47/A and as per the above said viscera report, on chemical, microscopic and TLC examination of the exhibits Ex. 1A, 1B, 1C and 1D on the viscera of the deceased Tarun Bajaj, metallic poisons, Ethyl and Methyl Alcohol, Cyanide, phosphides, alkaloids, Barbiturates, tranquilizers and pesticides could not be detected. The viscera report, to my mind, belies the theory of the prosecution that sleeping pills were given to the deceased as no traces of the sleeping pills were found in the viscera report of the deceased as per Ex. PW47/A.
77.The IO of the case who has been examined as PW50, categorically admits in the cross-examination, that none had seen the accused persons entering or coming out of the house of the deceased. PW19 Ms. Budhiya claims that she had identified the accused Suraj from the CCTV footage which was allegedly obtained from the house of PW44. First of all, it has to be seen that IO of the case, in the cross-examination, states that no notice was served upon Ms. Budhiya by him u/s 160 of the Cr.P.C.. IO of the case SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 52 of 61 further states that he had not seized the telephone instrument belonging to Ms. Budhiya from which the calls were made on 20.06.2014. The mobile phone of Ms. Budhiya was not sent to FSL by the IO of the case. IO of the case does not know as to how Ms. Budhiya was known to the deceased Tarun Bajaj. IO of the case has not recorded the statement of PW44 Mr. Vinod Khanna as well as his family members on 26.06.2014 to the effect that Ms. Budhiya had visited his house and had also seen the CCTV footage on 26.06.2014. It has already been held that nothing has been placed on record by the prosecution to show that the CCTV footage and the DVR were installed in the house of PW44. In the cross-examination done on 11.09.2015, Ms. Budhiya states that the face of the person was not clearly visible when CD Mark X1 was played in the court. Ms. Budhiya further states that the video clip was not very clear. However, PW19 again states that she has been able to identify the accused Suraj from his appearance and walking style. No opinion was sought from the FSL regarding the face matching of the accused persons. In these circumstances, I am of the opinion that the testimony of PW19 Budhiya is not reliable and trustworthy at all.
78.As per the IO of the case, no CCTV footage was collected of any of the houses which were situated in the immediate vicinity of the house of the deceased. The CCTV footage of the house of Mr. Vinod Khanna was collected by the IO and the same has been placed on record. As per PW44, Mr. Vinod Khanna, his house is situated at a distance of 250-300 metres away from the house of SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 53 of 61 the deceased. IO of the case specifically states that no one had seen the accused persons entering or coming out of the house of the deceased. It has already been held that nothing has been placed on record by the prosecution to show that the CCTV cameras and the DVR were installed in the house of PW44 Vinod Khanna. The testimony of PW19 Ms. Budhiya, is not reliable and trusthworthy as has been discussed in the preceding paragraph. The complainant who has been examined as PW4 has merely stated after seeing the CD about the resemblance of the accused persons with the persons who are visible in the CD. As such, I am of the opinion that so far as the identification of the accused persons is concerned, even from the CD Mark X1, which pertains to the house of Mr. Vinod Khanna, is highly doubtful.
79.As per the cross-examination of the IO, there are two entry gates in house no. F-433, i.e. the house of the deceased but he cannot tell the direction of the opening of the gates. IO of the case states that the house of the deceased is three side open. No evidence has been placed on record by the prosecution to show the exact position of all the entries into the house of the deceased at the relevant date and time of the incident in question.
80.Furthermore, it has to be seen that as per the complainant, her deceased husband was engaged in the business of Images Cable and her husband had employed two employees namely Sant Ram and Ranjeet who used to come to the house of the deceased prior to 10:00 AM and by taking their articles, they used to leave by 10:00 AM. However, PW4, in the cross-examination, admits that SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 54 of 61 even on the day of the incident both the above said employees namely Sant Ram and Ranjeet had come to the house of the deceased. PW30 Master Rahul has himself stated that he had gone to the house of the deceased on 25.06.2014 at about 08:00 AM. IO of the case, in the cross-examination, admits that there were two servants in the office of the deceased which was being run by him from his residence F-433, First Floor, New Rajinder Nagar, Delhi. As such, the fact remains that even on the date of the incident, a number of persons had come to the house of the deceased, which creates a serious dent in case of the prosecution as nothing has been placed on record by the prosecution to show as to when, the above said persons who had admittedly entered into the house of the deceased, left the house of the deceased.
81.From the photographs and the PM report Ex. PW13/A, it is apparently clear that a number of wounds were inflicted upon the person of the deceased and the deceased was murdered brutally. The prosecution has relied upon the DNA Analysis report Ex. PW46/A to show that the DNA profile generated from Cotton wool swab from bedroom, cutting from bedsheet was found to be matching with the DNA profile generated from the blood sample of the accused Suraj but it has to be seen that in the very same report it has been mentioned that the DNA profile generated from the cotton wool swab from entrance of the drawing room was found to be dissimilar to the DNA profile generated from the blood gauze of the deceased and blood samples of all the four accused persons. The above said DNA analysis report Ex. PW46/A points SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 55 of 61 out to the theory that some other person was also available in the bedroom of the deceased on the date and time of the incident whose DNA profile was dissimilar to the accused persons and to the deceased also.
82.As per the DNA analysis report, DNA profile generated from the knives(weapons of offence) could not be matched with the DNA profile of the accused persons or with the DNA profile of the deceased.
83.The prosecution has relied upon the testimonies of Sh. Prabhati PW26 who had allegedly given his motorcycle bearing no. DL10SA1355 to the accused Mohit Sharma. PW27 Sh. Yudhvir Singh is the father of PW26 and is the registered owner of the above said motorcycle. Both the above said witnesses have not supported the case of the prosecution so far as the seizure memo of the above said motorcycle is concerned and the alleged injury on finger of the accused Mohit Sharma is concerned. I am of the opinion that the testimonies of PW26 and PW27, is of no help to the prosecution.
84.In the light of the above said discussion and in the light of the evidence led by the prosecution on the aspect of the recovery of the currency notes, jewellery and weapon of offence, the evidence led on the aspect of the arrest of the accused persons, the evidence on the aspect of the mobile numbers, the testimonies of PW3 Shailender Sharma, PW4 Complainant, PW50 IO of the case and the rest of the recovery witnesses as well, I have no hesitation to SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 56 of 61 hold that the chain of circumstances is not only incomplete but the chain of circumstances cannot be said to be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with the innocence of the accused persons.
85.The only incriminating evidence which has been relied upon by the prosecution is the report pertaining to the chance prints Ex. PW18/B which shows that the chance print of accused Pooja was found on the glass tumbler which was there in the kitchen of the deceased and the DNA analysis report Ex. PW46/A, as per which, the DNA profile of the accused Suraj was found to be similar to the DNA profile generated from the cutting of the bedsheet in the bedroom of the deceased. It has already been discussed hereinabove that as per the DNA analysis report, the DNA profile which was generated from the entrance of the drawing room was found to be dissimilar to the DNA profile of the deceased and the DNA profile of the accused persons, thus, leading to a grave suspicion that someone else was also there. The vital question which arises for consideration is as to whether the accused persons namely Pooja and Suraj can be held guilty merely on the basis of the chance print report and the DNA analysis report, when it has already been held that the chain of circumstances has many dents and the same is not complete. It has to be seen that the Hon'ble High Court of Judicature at Madras in the matter titled as Chander Mohan Vs. State arising out of Criminal appeal no. 538/2023 decided on 20.12.2023, in paras no. 12 to 16, thereof, has held as under:-
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 57 of 61 " 12. We find that since the facts in the instant case are very similar to the facts dealt with by the Bombay High Court in the above decision, we are inclined to accept the view taken by the Bombay High Court. https://www.mhc.tn.gov.in/judis In fact, the Bombay High Court had quoted with the approval of the Judgement of the Hon'ble Gujarat High Court in Premjibhai Bachubai Khasiya Vs. State of Gujarat and another, reported in 2009 Crl.L.J.2888, wherein the Gujarat High Court had held as follows:
" Positive DNA report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but, if the report is negative, it would conclusively exonerate the accused from the involvement of charge. The science of DNA is at a developing stage and when the Random Occurrence Ratio is not available for Indian Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the accused in the offence. The positive DNA report cannot be therefore accepted by the trial Court in isolation, i.e. as sole piece of evidence to record the conviction of accused under Sections 376, 366 of Indian Penal Code"
13. We may also remind ourselves about the observations of the Honourable Supreme Court in Pattu Rajan Vs. State of Tamil Nadu reported in (2016) 1 SCC 550, wherein they have been observed as follows:
''52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember,given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible.'' SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 58 of 61
14. Therefore, we are of the considered view that the results definitely lead to a strong suspicion against the appellant. However, suspicion howsoever strong cannot take the place of proof. In the absence of any other evidence, we cannot sustain the conviction on the basis of the DNA test reports alone especially in the absence of evidence regarding the drawing of samples, packing, and preservation of the abortus, which was compared with the blood samples of the appellant and the victim. The probative value of the test report is reduced in view of the same.
15. For all the aforesaid reasons, we are of the view that the prosecution has not approved the case against the appellant beyond reasonable doubt, and therefore, we are of the view that the judgment of conviction and sentence passed in Spl.S.C.No.20 of 2017, dated 07.02.2018 on the file of learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Villupuram, is liable to be set aside.
16. As a result, this Criminal Appeal is allowed, and the appellant is acquitted of all the charges. The conviction and sentence passed in Spl.S.C.No.20 of 2017 on the file of the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court) Villupuram,, vide judgment dated 07.02.2018, are set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged. "
86.In the light of the ratio of the above stated judgment, I am of the opinion that in the absence of any supportive or corroborative evidence and in the light of the finding to the effect that the chain of circumstances, in the case in hand, is absolutely incomplete, the accused persons namely Pooja and Suraj cannot be held guilty merely on the basis of the chance print report Ex. PW18/B and DNA analysis report Ex. PW46/A.
87.Needless to mention that the complicity of the accused persons could have been proved either by the ocular evidence or by the circumstantial evidence. As stated and discussed hereinabove, SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 59 of 61 there is no last seen evidence in the case in hand. There is no eye- witness to the incident in question. The ocular evidence in the form of the complainant, in form of Dr. Anurag Pandey is not sufficient to bring home the guilt of the accused persons. The chain of circumstances is absolutely incomplete having many dents in it. The scientific evidence in the form of chance print report Ex. PW18/B against the accused Pooja and the DNA analysis report in the form of Ex. PW46/A against the accused Suraj is not sufficient in itself to convict the accused persons in the absence of the complete chain of the circumstantial evidence and in the absence of any supportive or corroborative evidence.
88.The settled law is that the burden to prove the case beyond any reasonable doubt lies on the shoulder of the prosecution. The accused persons have a right to maintain silence in the trial. Every accused person is to be presumed innocent until proved guilty. The burden of proof is on the prosecution to prove its case by leading cogent, convincing and reliable evidence so as to prove the guilt of the accused persons beyond any reasonable doubt. The accused persons cannot be convicted on the basis of merely probabilities or presumptions. Suspicion, howsoever grave, cannot take the place of proof. Benefit of doubt has to be given to the accused.
89.In the light of the above said discussion, I have no hesitation to hold that the prosecution has failed to prove its case against all the four accused persons by leading convincing or cogent evidence and thus, it has failed to discharge the burden placed upon it and therefore, the accused persons are entitled to be exonerated.
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 60 of 61
90.Resultantly, the accused persons namely Suraj Singh @ Sahil, Pooja, Mohit Sharma @ Sunny and Munni @ Moni are acquitted of the charges u/s 302/392/397/411/34 IPC.
91.Bail bonds u/s 437A of the Cr.P.C. have already been furnished and accepted, which shall remain in force for a period of six months from today.
92.File be consigned to Record Room, after necessary compliance.
Digitally
signed by RAJ
RAJ KUMAR
Date:
KUMAR 2024.02.28
16:58:31
+0530
(Raj Kumar)
ASJ-05, Central District
Tis Hazari Courts, Delhi
28.02.2024
SC 28296/2016 State Vs. Pooja FIR no. 292 /2014 PS Rajinder Nagar Page no. 61 of 61