Delhi District Court
State vs (1) Pintoo Bisbas S/O Sh. Madhusudan ... on 17 April, 2013
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) KARKARDOOMA COURTS, DELHI
Unique ID No. 02402R0047572009
Sessions Case No.07/13
Date of Institution: 24.12.08
Date of transfer to this order: 09.01.13
Date on which reserved for orders: 21.03.13
Date of delivery of order: 05.04.13
State v/s (1) Pintoo Bisbas S/o Sh. Madhusudan Bisbas
R/o. Village Jal Tank Para, Natana Colony,
PS Karimpur, Distt Nadia, West Bengal,
(2) Manoj Shah S/o Sh. Manav Shah
R/o. Village Jal Tank Para, Natana Colony
PS Karimpur, Distt. Nadia, West Bengal.
FIR No. 473/08
PS. Shakar Pur
U/s.302/380/411/120B/34 IPC
JUDGMENT:
1. On 21.09.2008 at 09:25 hours, an information was received at Police Station Shakar FIR No. 473/08, PS. Shakar Pur Page 1 of 42 St. Vs. Pintoo Bisbas etc. Pur from Police Control Room regarding a quarrel at 87 A Kundan Nagra Gali no 1. On receiving the information, which was recorded as DD No. 10A, S.P. Singh along with Ct. Pavindra no. 1599/E went to the spot i.e. House no 83 A I floor Kundan Nagar Laxmi Nagar, and found in the inner room between double bed and Almirah a dead body of a female with foam in her mouth and nose and strangulation mark on her neck. There was an extension cord wire lying near the dead body. The dead body was identified to be of Sushmita Dev w/o Sharad Bhatt, by Ms Lavanya B Jarwa, who was residing in the second floor of same house on rent and was working with deceased in EXL Service.com (I) Pvt Ltd Co. The servant of the deceased Manoj was found missing from the house along with his belongings. The senior officers were informed; Crime team was called; Tehrir was prepared by ASI K. P. Singh and was sent for registration of F.I.R. through Ct Pavindra. Inspector V.K.P. Singh reached at the spot and made inquiries from Ms Lavanya and Ms Kavita the maid servant of the deceased Sushmita. On the basis of enquiry investigation was taken up further and accused were apprehended and they made a disclosure that they used an angochha for commission of the offence. During the investigation the mobile phone of make Nokia IMEI 352938102138498811 was recovered from Manoj which had sim card of no 9800726845, and the purse of the deceased containing her passport, voter I card, pass book & chequebook etc and a ladies wrist watch & a mobile phone make Nokia IMEI no 354162022051338 with card of no 9733639007 were recovered from Pintoo. Accused Pintoo also got recovered the angochha allegedly used in the commission of offence. The cause of death as per postmortem report was asphyxia consequent upon FIR No. 473/08, PS. Shakar Pur Page 2 of 42 St. Vs. Pintoo Bisbas etc. ligature strangulation and as per subsequent report it was possible by the angochha recovered from the accused Pintoo.
2. The accused were charged under section 302/34 for having caused homicidal death amounting to murder of Ms Sushmita in common intention with each other and Shintu, whose case was tried by the Juvenile Justice Board, he being a juvenile. The accused denied their involvement and pleaded not guilty, claiming trial.
3. The prosecution examined 32 witnesses to prove its case.
PW1 Gopal Singh Nim had called the PCR. He stated in his evidence that on 21/09/2008 around 9 9:15 am he saw two ladies weeping in the street, he enquired from them the reason of their crying but they were too afraid and could not answer. He presumed that some qurrel might have taken place and so informed the Police accordingly from his mobile phone no 9899231484. The police reached in 15 minutes and he went along with the police to the first floor of house no 83A, where he saw a dead body. The witness thus explained how the information at PCr was recorded as that of a quarrel and not of a dead body having been found.
4. PW2 Yash Pal Jadeja stated in evidence that he had given on rent the first floor of his house to Sushmita Devi, who was a resident of West Bengal. After three months of having taken the portion on rent Sushmita introduced him to Lavanya, who took top FIR No. 473/08, PS. Shakar Pur Page 3 of 42 St. Vs. Pintoo Bisbas etc. floor of the house on rent. The two women shared the kitchen. He deposed that Sushmita had employed a servant named Manoj three four months after she started to live in the house, who used to look after the two dogs of Sushmita. He also said that accused Pintoo used to park his rickshaw in front of his shop and he used to take Sushmita to market etc on his rickshaw and also used to visit Sushmita's house. Pintoo and Manoj also used to talk to each other. He says that on 20/09/2008 he saw Manoj and Pintoo and another person going with a bag. On inquiry Pintoo told him that he was going to drop his friend to Railway Station. Next morning he came to know that Sushmita Dev was murdered. Manoj and Pintoo did not return after that. In his cross he stated that he had given the rent agreement with Sushmita to the police, which got exhibited as Ex PW2/DA. Regarding Lavanya he said that no rent agreement was executed because she had come through Sushmita and that the antecedents of the two were not got verified. He denied that some Kumar used to visit the house of the deceased. He stated that Sushmita used to come to his shop to give rent and that the two women used to purchase eatables etc from his shop, which either they used to take themselves or accused persons used to take the same. The witness categorically denied that he himself used to go to their house either to take rent or to supply the eatables and also denied that his servants used to supply the articles. It was thus clarified by the witness that none of his employees could have been at the house of deceased on the pretext of supplying some article. In any case though the questions were put in coss examination, nothing was said during the arguments. He named his workers and stated that one of them informed him about FIR No. 473/08, PS. Shakar Pur Page 4 of 42 St. Vs. Pintoo Bisbas etc. the incident and when he came at the spot the police had already arrived there.
5. PW3 Kuldeep Singh is the owner of Rickshaw Garage from whom accused Pintoo had taken the rickshaw on rent. He has deposed that accused Pintoo took his rickshaw in June 2008 and he used the rickshaw upto 20/08/08, thereafter he returned the rickshaw and told him that he was going to his native village. He stated in his evidence that his mechanic Wazid had verified the address of accused Pintoo. In his cross examination he has stated that he did not maintain any record of giving rickshaws on rent. The evidence of the witness was not challenged during arguments though Ld counsel took a plea on the basis of this evidence that Wazid should have been examined as a witness.
6. PW4 Ganesh Sahu was working in the shop of PW2 Yash Jadeja, who is also the owner of the premises where the incident occurred. He deposed that deceased was residing as a tenant on the first floor of premises no.83A, Kundan Nagar, Laxmi Ngar, Delhi and Lavanya was residing on the top floor of the premises. The workshop of Sweets sold from the shop where he was working, was on the back side of ground floor of same premises. He deposed that on 28/09/08 around 04.00 pm he saw maid servant of Sushmita sitting on the stairs. On inquiry she told that her landlady was not present and the premises was locked. Around 12.00 midnight the maid servant knocked his door. She was accompanied by Lavanya. Both of them told him that they did not have the key of her room as the same was with Sushmita. FIR No. 473/08, PS. Shakar Pur Page 5 of 42 St. Vs. Pintoo Bisbas etc. Lavanya further told him that she tried to contact Sushmita telephonically but could not get connected. Both of them requested him to open the room . He went alongwith them and broke the lock of room of Lavanya. On 21/.9/08 around 08.00 AM Lavanya and Kavita again requested him to break open the lock of room of Sushmita saying that their belonging were lying in her room. On request he broke the lock and the two ladies went inside the room. He came back but within 5 minutes he heard the cries of Lavanya and Kavita. The two came down crying and informed him that dead body of Sushmita was lying in the room. He went up and saw the dead body lying between the bed and fridge. In his cross examination the witness stated that he does not know Advocate Gopal Singh Nim personally but one Advocate was residing above the Sweet Shop. The witness thus proved the informant was also residing near the place. He said that he had seen Kavita siting on the stairs around 11.00 pm but he did not talk with her at that time. He stated that Bharat and Unis who were other workers in the shop were present in the shop when Kavita and Lavanya had come to the workshop but he had gone alone for breaking the room of Lavanya. Second time also he went alone to open the door of first floor. There is nothing else in the cross examination of this witness.
7. PW5 Tausif Rahi deposed that he knew Ziaul Haq @ Akhtar, who had contacted him in February 2008 and had told him that he wanted to buy Sim Card but did not have identity proof. So on request of Ziaul Haq he gave his PAN card to Ziaul Haq as a proof of identity using which he purchased a SIM Card. The witness stated FIR No. 473/08, PS. Shakar Pur Page 6 of 42 St. Vs. Pintoo Bisbas etc. that the last digit of SIM Card number were 661. In his cross examination he stated that Ziaul Haq had got another number later on and he denied the suggestion that Sushmita was known to him or had stayed in his Hotel.
8. PW6 Ziaul Haq deposed that he came to know Sushmita during his employment at Royal Prince Hotel, where she used to visit as a customer. He had taken the PAN card of Tausif to purchase a SIM Card, which he purchased from "Mama Ji Telecom Service" located in front of Hotel Oasis. The number of sim card was 9873257661 and he was purchased in February 2008. He further deposed that Sushmita Dev met him in the Hotel and requested him to provide his SIM to her as she did not have any number of Delhi. He gave this number to her and used to occasionally talk with her on this number from his other mobile number 9999758249. In his cross examination he stated that he had visited the Laxmi Nagar house of Sushmita only once in May or June 2008 and had stayed there for 1520 minutes. He also said that he had seen another lady in the house.
9. PW7 Ms. Lavanya Barijwara deposed that she had come to Delhi on 25/02/08 and had joined EXL Company Gurgaon. She initially lived ast Safardarjung Enclave with a friend, who got married and thereafter she started to look for a separate accommodation. She told this need to Sushmita Dev, who was also working with her. Sushmita told her that there was vacant room in the house where she was living. She came to live with Sushmita on 14/05/08 and occupied the room on second FIR No. 473/08, PS. Shakar Pur Page 7 of 42 St. Vs. Pintoo Bisbas etc. floor of the house. Sushmita used to lived on the first floor. She used to share kitchen with Sushmita and also used to live with her but she used to sleep in her own room. She deposed that Manoj, duly identified by her during evidence, was engaged by Sushsmita for bringing house hold articles and that he was known to Sushmita through a rickshaw puller named Pintoo. Accused Pintoo was also identified by the witness in the Court. She deposed that accused Pintoo used to visit the house of Sushmita Dev and that Dev used to go to market and other places from his rickshaw. The witness stated that Sushmita trusted Pintoo like her brother and that he used to have lunch etc. in her house. On 07/09/08 Sushmita engaged a lady Kavita as Manoj was not expert in cooking though Manoj continued to work with Sushmita. She deposed that on 17/09/08 Pintoo along with his cousin brother Shintoo had come to the house of Sushmita Dev and they remained in her house on 17th and 18/09/08. The two left in the morning of 19/09/08 saying that they were going to look for a room to live. Manoj remained with Sushmita. On 20/09/08 when she went to the room of Sushmita, Kavita met her there and told her that she had pain in her feet for which she would go to the hospital. Kavita left at 09.00 am and she left at 11.00 am leaving Manoj and Sushmita at the home. She deposed that on her return around mid night, she found Kavita siting on the stairs and the room of Sushmita locked from outside. Kavita informed her that when she returned from the hospital around 02.00 pm, she found the room of Sushmita locked and Manoj was not found present in the house. The witness says she tried to contact Sushmita through her mobile but the mobile phone of Sushmita was switched off. She went up stairs to her room and found that FIR No. 473/08, PS. Shakar Pur Page 8 of 42 St. Vs. Pintoo Bisbas etc. her room was also locked. Since she had left the key of her room in the house of Sushmita, so she came down stairs and contacted some neighbour who used to work in the shop and requested them to break open the lock of her room. On her request Ganesh broke the lock of her room and she and Kavita spent the night in her room. Next day she woke up around 08.30 am and again tried to contact Sushmita but found her mobile switched off. Her cloth and other belonging were lying in the room of Sushmita and she had to go to her office so she again requested Ganesh to break open the lock on door of Sushmita's room. She and Kavita went inside the room and she noticed the door of inner room was closed. She pushed the door and saw Sushmita was lying on the floor with foam coming from her mouth. She got scared and went down stairs followed by Kavita. She shouted, neighbours came and she told them what she had seen. Some one called the police. She went inside the room of Sushmita room along with police. She told that Sushmita used to wear three rings, ear rings, chain,, bracelet etc. which were found missing from her body. Her wrist watch, black bag with brown strips and mobile phone were also missing. She told that one of the SIM Card used by Sushmita was in her name and was provided to her by her office and told the last three digits of numbers were 356. She deposed that Manoj used to keep his bag in the house of Sushmita and that his bag was found missing and he was also found missing after the death of Sushmita. She deposed that she was called at KKD Court and had identified the mobile phones, ladies purse and wrist watch of Sushmita Dev. The articles were got exhibited as : mobile phone Nokia Ex.P1; wrist watch Ex. P2; ladies purse Ex.P3 and another mobile Ex. P4. In FIR No. 473/08, PS. Shakar Pur Page 9 of 42 St. Vs. Pintoo Bisbas etc. her cross examination the witness stated that she knew one Kumar who used to work in her office and live in room where she was living prior to her. She denied that Kumar had visited Sushmita in her presence or that he used to stay in the room of Sushmita. She denied that Kumar had left the room after a quarrel with her. The witness deposed that no rent agreement was executed between her and her landlord. She stated that he used to pay the rent to Sushmtia who inturn used to pay to the landlord. The witness stated that she never saw Sushmita consuming alcohol nor she saw any African visiting her room. The witness stated that her working hours were from 11.00 AM till 12.00 midnight during the time of incident. Her attendance was marked in the company on 20/09/08. She said that she and Kavita both had gone to call Ganesh, who was in his room and other workers were also present in the shop. She stated that she had tried to contact Sushmita thrice. The witness stated that Kavita was behind her when she opened the room where dead body was lying and she and Ganesh had not entered the room. She stated that she was unaware if Sushmita Dev had provided any mobile phone to Manoj and denied that she used to talk with Manoj on the mobile provided to him by Sushmita. She denied that the articles P1 to P4 which were seized by the police, were lying in the room and were provided to the police by her. She denied that the applicants and other persons who used to visit Sushmita had committed her murder and the accused persons were falsely implicated.
10. PW8 Ms. Kavita deposed that she had started to work in the house of FIR No. 473/08, PS. Shakar Pur Page 10 of 42 St. Vs. Pintoo Bisbas etc. Sushmita Dev as a maid on 7.9.08. She used to cook, clean the house and the clothes of Sushmita while Manoj ( accused identified by her in Court) was also a servant and was residing in the same house. Lavanya was also residing in the same house, on the upper floor. Lavanya shared the kitchen with Sushmita but she and Lavanya used to sleep in the room of Lavanya. Accused Manoj used to sleep on the bed lying outside the room of Sushmita and used to take care of her dogs and visit market for purchase of household articles. She deposed that in her presence accused Pintoo came to the house of Sushmita on 17/ 18.9.08 and she was asked to cook food for them. Sushmita informed her that one of them was Pintoo, a rickshaw puller and the other was his relative. They stayed at Sushmita's house for two nights and (after that ) left the house in the morning while Manoj remained with them. She says that on 19.9.2008 around 9 am she went to the hospital as she had swelling in her leg, leaving Sushmita, Lavanya and Manoj at home. On her return from the hospital she found the room of Sushmita as well as Lavanya locked and Manoj missing. She went downstairs and tried to contact Sushmita from STD booth but the number was found switched off. Around 12 midnight Lavanya came, she also tried to contact Sushmita but her phone was found switched off. Thereafter, Lavanya called Ganesh who broke the lock of room of Lavanya where they slept. Next morning Lavanya again they tried to contact Sushmita but phone was switched off and since Lavanya's articles were lying in the rooms of Sushmita, so she called Ganesh again to open the room of Sushmita. Lavanya went inside and came back crying saying that ' Didi was no more' . She also started cying. somebody called the police and then they went inside the room. She FIR No. 473/08, PS. Shakar Pur Page 11 of 42 St. Vs. Pintoo Bisbas etc. saw the bracelet, three rings, wrist watch, mobile phone and purse of Sushmita missing. The bag of Manoj was also found missing.
In cross examination the witness stated that no stranger, office collegue or family member of Sushmita had visited the room of Sushmita in her presence and no one was residing with Lavanya. She stated that the meals were prepared in kitchen of Sushmita and everyone used to eat the meals in her room. She stated that she never saw Sushmita taking liquour and denied the suggestion that some African persons used to visit Sushmita with whom she used to take liquor. She stated that she had seen two mobile phones with Sushmita but did not know if Manoj also had mobile and also that she never saw Sushmita talking with Manoj on mobile. The witness stated that she was not aware if Sushmita had provided a mobile to Manoj. She denied the suggestion that she had talked at her native place from mobile of Manoj and volunteered that She talke from Sushmita's mobile. She stated that the doctor of Hedgevar hospital asked her to come on Monday and so no prescription slip was issued. From the hospital she went to the person who had got her employment in the house of Sushmita and she came back around 34 pm. She stated that the key of room was with Sushmita and Manoj and so she did not ask for key from anyone else and that she did not call Manoj as she did not have his number. She stated that she and Lavanya tried to break open the room before calling Ganesh. She stated that Lavanya had called police from her phone. She pleaded ignorance about the brother of landlord being an Advocate. In answer to a Court question the witness stated that she had found uncooked cut potatoes, cooked rice, uncooked meat, masala in the jar of FIR No. 473/08, PS. Shakar Pur Page 12 of 42 St. Vs. Pintoo Bisbas etc. mixi mixed with onion and chilli and she had put all these things in the dustbin. She stated that she never gave raw meat to the pet dogs.
11. PW9 Anuj Bhatia, nodal officer of Vodafone deposed that mobile number 9733639007 was issued in the name of Pintoo Biswas. He proved computer generated record and stated that the original record is not available in the record system of Delhi. The documents were marked 9,9A and 9B.
12. PW10 is Dr. Akash Jhanji, who conducted postmortem on the dead body of deceased. He stated that the death was caused by asphyxia consequent upon ligature strangulation and was sufficient to cause death in ordinary course. The witness stated that the time since death was around 23 days. In his subsequent opinion, he had opined that the marks found on the neck of deceased were possible by the Angochha produced by the IO and were not possible by extension cord. The witness was not cross examined.
13. PW11 brought the summoned record in respect of mobile number 9800726845 and stated that the same was in the name of Sanjay Mandal of Darjeeling West Bengal. He filed the documents of subscriber and proved them as Ex.PW11/A and Ex.PW11/B. PW12 Pawan Singh Nodal Officer IDEA Cellular produced the record of mobile No.9990898356 and proved the call records as Ex.PW12/A and the documents of subscriber as ExPW12/B to ExPW12/D. PW13 FIR No. 473/08, PS. Shakar Pur Page 13 of 42 St. Vs. Pintoo Bisbas etc. HC Ompal had recorded the FIR on the basis of rukka sent to him by ASI S.B.Singh through Ct. Parvinder. The computerized version of FIR is EXPW13/A and the endorsement made on rukka by him was Ex.PW13/B. PW14 Mr. Vivek Kumar Gulia, Ld MM Karkardooma Courts proved the TIP proceedings in respect of the articles of deceased recovered from the accused and the TIP proceedings is marked ExPW14/A. PW15 Dev Dutt stated that he lives in house No. 11 Gali no. 1, Saronjni Naidu Park, Shastri nagar, Geeta Colony and has ten rooms in his house out of which he had given one room to accused Pintoo, identified by him in the Court, at a rent of RS. 1500/ per month in the month of July 2008. He said that Pintoo left the room in August 2008. PW16 has proved the MLC of accused. PW17 has proved the original record of original call received at PCR on 21.9. 08 at 9.19 am. PW18 Ct. Manoj Kumar deposed that he had gone to the place of incident and had taken 12 photographs of the spot. The photographs were proved as EXPW18/1 to 12 and negative are ExPW18/13 to 24. PW19 had taken the exhibits to FSL Rohini on 21.10.08 and then on 23.10.08.
14. PW20 Ct. Ramvir had gone to West Bengal alongwith ASI S.P.Singh, HC Vijendra and Ct. Ravinder on 25.9.08. He says that they went to PS Karim Pur and SI R.N.Dass , SI Anup Kr. Dey and other staff of PS Karim Pur joined them in the proceedings of the case. On 25.09.08 during night time they raided the house of accused Pintoo Biswan situated at Natna Colony, Jal Tank, Tada, KarimPur and on the pointing of secret informer accused Pintoo was apprehended. He made a FIR No. 473/08, PS. Shakar Pur Page 14 of 42 St. Vs. Pintoo Bisbas etc. disclosure statement and got recovered one Angochha lying under the bed, one mobile phone of Nokia company, one ladies bag. The bag was found containing ATM card of deceased, cheque book, pass book SIM card of mobile and some other articles. Thereafter accused Pintoo took them to the house of Accused Manoj Shah , who was also apprehended and interrogated. He made a disclosure and got recovered one mobile phone of make Nokia from a box and also handed over five SIM cards which were lying in a small packet. Both the apprehended persons were identified by him as accused Manoj and Pintoo present in the court. He deposed that the articles seized from Pintoo Biswas and Manoj were seized by the IO and were sealed with the seal of SPS. In his cross examination he admitted that no local persons joined the investigation at the time of arrest of the accused and denied the suggestion that no recovery was effected from the accused persons.
15. PW21 Ct. Pavinder had gone to the place of incident on 21.9.08 alongwith ASI S.P.Singh , on receipt of DD No. 10 A. He deposed that he had gone to first floor of the house where dead body of a lady was found lying on the floor and which had ligature marks on her neck. Her identity was revealed as Sushmita. the maid servant Kavita informed him that servant Manoj was missing from house and so was the jewellery worn by the deceased. The IO informed the senior officers . He prepared tehrir of the case and sent the same for registration through him. He got the FIR registered and came back to the spot alongwith copy of FIR and rukka and gave the same to the IO. Crime team came to the spot, Site plan was prepared by the IO. The FIR No. 473/08, PS. Shakar Pur Page 15 of 42 St. Vs. Pintoo Bisbas etc. extension cord and broken lock were seized by Ins. V.K.P.Singh who had reached at the spot, vide memo ExPW21/A. He says that IO made inquiries from Lavanya and Kavita and on inquiry it was revealed that one rickshaw puller used to visit servant Manoj in the house of deceased. He deposed that the landlord of deceased Yash Tuteja ( should be Jadeja) was examined by the IO and he informed that he had seen Manoj going in the rickshaw of Pintoo alongwith one person with a bag and on inquiry the landlord was informed that they were going to drop his friends. They went to the local place of residence of accused Pintoo wherefrom they got his permanent address. In his cross examination, the witness stated that he did not see any dog near the dead body. IO had recorded the statement of Lavanaya and Kavita at the spot and denied the suggestion that the ladies were beaten in PS and accused were falsely implicated. None of the other witnesses was asked about the dog. The statement ofwitness did not mean anything except that he did not see the dogs and not that there were no dogs in fact.
16. PW22 ASI Vijender Singh had also gone with ASI S P Singh to West BENGAL on 22.9.08 in search of the accused. He says that he had contacted the local police and informed by local police on 26.9.08 that accused Pintoo was at his home . The four officials of Delhi police alongwith local police went to raid house of Pintoo who was arrested on the pointing out of secret informer. Accused took out an iron box lying in his house from which a bag was recovered and then in the bag were found cheque book, pass book, passport, some documents ladies wrist watch. Mobile FIR No. 473/08, PS. Shakar Pur Page 16 of 42 St. Vs. Pintoo Bisbas etc. phone was found beneath the pillow at the Takhat and angocha was also found lying in the corner of the takhat. He proved the seizure memo of purse bearing his signatures as EXPW22/1. Memo of angochha as ExPW22/2. He said that IO had recorded disclosure of accused which was signed by him and is exhibited ExPW22/3. The accused Pintoo took them to the house of Manoj. Manoj also confessed his crime and his disclosure statement was recorded as ExPW22/4. Seizure memo of mobile recovered from Manoj is ExPW22/5. On 27.9.08 they had produced accused persons in local court of Distt. Nadiya wherefrom they got the transit remand. The witness identified the case property shown to him as the same recovered from the accused persons. In his cross examination, the witness said that they had left Delhi on 22/9/08 and returned on 29.9.08. They reached West Bengal in the evening of 23.9.08 and left from there in the morning of 27.9.08. He named the officials of local police who had accompanied them to the house of accused Pintoo. He stated that none of people from neighbourhood was asked to join the proceeding of arrest.
17. PW23 HC Ajendra had gone to the subzi mandi mortuary on 22.9.08. he said that the exhibits which were handed over by the doctor who conducted the postmortem were seized by IO in his presence vide memo signed by him and exhibited ExPW23/A. He also proved the memo of handing over of dead body as ExPW23/B. He had taken accused Pintoo and Manoj to LBS Hospital for their examination on 29.9.08. He says that IO had interrogated accused Pintoo and Manoj in his presence and proved his signatures on ExPW22/3 and EXPW23/D. He says FIR No. 473/08, PS. Shakar Pur Page 17 of 42 St. Vs. Pintoo Bisbas etc. that on 30.9.08 in his presence accused Pintoo and Manoj had pointed to the place of incident and the pointing out memo had his signatures . The documents are ExPW23/E and F. The witness identified Pintoo and Manoj in the Court.
18. PW24 is the draftsman HC Sonu Kaushik who prepared the scaled site plan of the place of incident and has proved the same as ExPW 24/A. PW25 ASI Gurmeet Singh was the member of Crime Branch team which visited the spot and he had proved the report of spot of crime as ExPW25/A. PW26 HC Raj Mohan was Incharge Malkahan and has proved the relevant entries made in register no. 19. The en 20. PW28 Sh. Sanjiv Rawat deposed that one lady Sushmita Dev had purchased a mobile phone from R.P.G Cellucom, where he was working as a sales executive on 6.7.08. He proved the invoice as ExPW28/A. He stated that the number of Sushmita was mentioned at the invoice as 987325661 and stated that IMEI number of the purchased mobile was 35416202251338.
19. PW29 Sourakr Mandal deposed that on 23.9.08 he had sold a SIM card of Vodafone bearing No. 9733639007 to Pintoo Biswas against voter I card, Passport size photo and the customer application form. The documents were sent by him to the office of Vodafone company. He Proved the record maintained by him in his register as ExPW29/A. The witness also identified accused Pintoo Biswas as the person who bought the SIM card. In his cross examination he said that he does not maintain record of relevant documents as they are sent to the concerned company FIR No. 473/08, PS. Shakar Pur Page 18 of 42 St. Vs. Pintoo Bisbas etc. and in this case they were sent to Vodafone company. He proved the copy of registration company of his shop as ExPW29/DA.
20. PW30 Rathin Saha deposed that on 23.9.08 he had sold a SIM card bearing no. 89915100000052228451 to Saraswati Sah. He proved his record as ExPW 30/A and registration certificate of his shop as ExPW30/B.
21. PW27 Ct. Ravinder has deposed that on 26/09/08 he was posted as Constable at PS Shakar Pur and had joined the investigation alongwith HC Vijender, ASI S.P. Singh and Ct. Rambir. They had gone to Karimpur West Bengal where they reached in the night of 25/09/08. Next day the police officials of Karim Pur also joined the investigation and on the pointing of a secret informer accused Pintoo Biswas was arrested. He confessed about commission of murder of Sushmita Dev. He got arrested accused Manoj. The accused Pintoo was arrested vide memo Ex. PW 27/A bearing his signatures at point A and his personal search was conducted vide Ex. PW 27/B. He says that he got recovered a ladies purse of black and brown colour from an iron box inside his house. He also got recovered Angucha. Accused Manoj was arrested vide memo Ex. Pw 27/C and his personal search was conducted vide Ex. PW 27/D. The witness deposed that Manoj had recovered a mobile phone make Nokia and 5 SIM Cards. On 27/09/08 they took transit remand of accused and came back to Delhi. The witness identified the articles recovered from the accused persons. In his cross examination the witness stated that he does not remember the FIR No. 473/08, PS. Shakar Pur Page 19 of 42 St. Vs. Pintoo Bisbas etc. train by which they went to Karim Pur but they had made relevant arrival and departure entries. Wife and mother of accused Pintoo were present in the house on 26/09/08. The IO did not summon any person from locality for investigation. He denied the suggestion that signatures of accused were obtained on blank papers. He admitted that the purse recovered from the accused are easily available in the market. But denied that the personal belongings of deceased were not recovered from the accused. He stated that at the house of accused Manoj Shah his parents and younger brother were present. He denied that nothing was recovered from Manoj and that the accused were falsely implicated in the case.
22. PW31 Inspector V.K. P. Singh deposed that on 21/09/08 he was informed by the duty officer about a murder having taken place and he went to the place of incident, where he inspected the site and found one extension code lying near the dead body and a broken lock which were seized by memo Ex. PW 21/A. The goods in the room were scattered and locks of almirah were lying open. Crime team had arrived and inspected the secen of crime. They had also developed the chance prints. He prepared the site plan. He examined Ms. Lavanya who identified the deceased and disclosed that she and deceased were working at the same company at Gurgaon. He also made inquiry from Kavita. he had recorded statement of Ganesh Sahu on 23/09/08. During investigation it was revealed that Pinto Biswas lived in the house of one Dev Dutt. He checked the room of Pintoo Biswas and found photocopy of one Mandal Shyam Pada R/o District Karim Pur, Nadia West Bengal. On 22/09/08 FIR No. 473/08, PS. Shakar Pur Page 20 of 42 St. Vs. Pintoo Bisbas etc. brother and husband of deceased came and identified the dead body. He recorded their statement Ex. PW 31/B and C and prepared inquest paper Ex. PW 31/D. Thereafter a raiding party was constituted under the supervision of ASI S.P. Singh, which left for search of accused to Karim Pur. On 24/09/08 he had requested the companies for running the IMEI number of cell phones of Sushmita Dev in the area of West Bengal and he got the information on 25/09/08. It was revealed that IMEI number of mobile phone number 9990898356 was being used in the phone number 9733639007, which was in the name of Pintoo Biswas and another number of Sushmita, which had SIM of number 9873257661 was found in use by another number 9800726845, which was in the name of Saraswati Shah. ASI S.P. Singh who was already in West Bengal was directed to obtain the record and verify the users. On 26/09/08 he was informed by ASI S.P. Singh that he had obtained the record of both the numbers and had also arrested accused persons. On 26/09/08 he verified from Sanjeev Rawat regarding purchase of a mobile phone by Sushmita, in which he had used her SIM Card number 9873257661. On 27/09/08 he obtained the ownership and CDR of mobile numbers 9990898356 and 9873257661. On 29/09/08 ASI S. P. Singh came alongwith Pintoo Biswas and Manoj Shah and also produced the case property which was got deposited in Mall Khana. He interrogated both the accused persons and recorded their disclosure statements (Ex. PW 22/3 and EX. PW 23/B). On 30/09/08 accused Pintoo Bishwas and Manoj Shah pointed to the place of incident. The medical examination paper of both the accused were seized by him. He moved the application to get TIP of the accused conducted, however both of them FIR No. 473/08, PS. Shakar Pur Page 21 of 42 St. Vs. Pintoo Bisbas etc. refused to participate in TIP. He examined other witnesses who were part of investigation. He deposed that on 18/11/08 he got conducted the TIP of case property belonging to deceased, collected the FSL result, file the same in the record. He identified the extension cord and the lock. In his cross examination the witness stated that he did not measure the ligature mark on the dead body as it was not his duty. He remained at the spot for about 34 hours and recorded statements of Kavita, Lavanya, police staff and some other persons. He denied the suggestion that memos were prepared while siting in PS and so signatures of Kavita and Lavanya were not taken.
23. PW32 ASI S.P. Singh has deposed that he had gone to the place of incident on 21/09/08 after receiving the DD No. 10A, copy of which is Ex. PW 32/A. He found the dead body of lady lying between double bed and almirah having deep ligature mark on her neck. One lady Lavanya told him that the dead body was of Sushmita and her house was closed since 03.00 PM of the preceding day. He prepared the ruka Ex. PW 32/B and sent Ct. Pavinder for registration of FIR. Crime team was called. Dead body was sent to mortuary along with application Ex. Pw 32/C. On 22/09/08 he alongwith others went to Karim Pur in search of accused. On 26/09/08 they reached the house of accused Pintoo who led them to the accused of Manoj. He admitted his signatures on the relevant documents of recovery and arrest and identified the case property. Since there were documents on record which were not tendered by the witnesses during evidence and also there was a statement of IO FIR No. 473/08, PS. Shakar Pur Page 22 of 42 St. Vs. Pintoo Bisbas etc. under 161 Cr. P. C., which was ignored during recording of evidence, taking guidance from the judgment of Hon'ble Supreme Court in AIR 1999 SC 2292, Rajender Prasad Vs Narcotic Cell, the witnesses were called for further examination under section 311 Cr.P.C. The witness deposed that the IMEI no of the phone recovered from Manoj Shah was 352938023549681 but was inadvertently noted down as 352938023849881 as it was dark at the place where the memo was prepared. PW 31 proved the CDRs of mobile phones 9990898356 & 9873257661 obtained by him during the investigation and stated that IMEI no of phone no 9733639007 was found same as that of 9990898356 and IMEI no of phone no 9800726845 was same as that of 9873257661. records were exhibited Ex PW 31/X and X1 respectively.
24. In his statement u/s 313 Cr.P.C. accused Pintoo admitted that he was arrested from his house but stated that he was wrongly arrested. He stated that he does not remember if mobile number 9733639007 was in his name. Similarly accused Manoj stated that he was not aware if SIM card bearing No. 89915100000052228451 was in the name of Saraswati Shah but he stated that Saraswati was his mother.
25. Arguments were advanced by Mr. I.H. Siddiqui Ld Addl. PP on behalf of the state and Mr Gaurav Vashishtha Adv. on behalf of the accused persons.
26. It was argued by Ld Addl PP that the accused Pintoo used to visit the house of deceased and he had introduced accused Manoj Sah to the deceased, who then FIR No. 473/08, PS. Shakar Pur Page 23 of 42 St. Vs. Pintoo Bisbas etc. engaged accused Manoj as a domestic help. On 17/09/2008 & 18/09/2008 Pintoo stayed in the house of deceased along with the juvenile associate who had come with him from the village, Manoj was in the house when after Pintoo and Shintoo left. The deceased and Manoj were alone at the house after the maid and Lavanya had left. Manoj was already living there. The three of them left the city after the incident and were seen going along with a bag by the land lord. After PW7 and PW8 saw the deceased alive in the company of accused Manoj, she was not seen alive by anybody.
He argued that both the mobiles of the deceased were recovered from the possession of the accused persons, they were being used in West Bengal and there was absolutely no possibility to plant, the sim cards which were used by the accused in the mobile phones were purchased from the local shops of the place of residence of accused, the shopkeeper concerned have been examined in this regard.
Accused Pintoo also got recovered the angochha, which was used in the commission of offence. The subsequent opinion of the doctor says that this cloth could be the one with which the deceased was strangulated.
It was argued that one of the stolen mobiles had a sim card, issued in the name of Saraswati Shah mother of accused Manoj Shah. The robbed articles were recovered from the possession/at the instance of accused persons and the same were identified by PW 7 in Judicial TIP as the ones belonging to deceased Sushmita.
He argued that the accused had both the opportunity and occasion to commit the offence. They had the motive (stealing) also. The conduct of theirs in running away from the place after the incident is also indicative of their guilt. FIR No. 473/08, PS. Shakar Pur Page 24 of 42 St. Vs. Pintoo Bisbas etc. It was argued that the time and date of death as indicated in post mortem report tallies with the time of death concluded by investigation. The complete chain is established and is pointing towards the accused persons.
27. The defence counsel argued that the three things were seized from the spot the broken lock, extension cord and the dead body. Seizure memos of none of these seizures bear signature of either PW Lavanya or Kavita and also PW 2 does not say that they were present at the spot; which creates a doubt regarding their presence at the place of incident at the time of discovery of incident and seizure of the three mentioned articles. He argued that the rent agreement of Lavanya has not been produced leaving a doubt that she might have been residing with the deceased and thus had an occasion to commit the offence. He argued that the recovery of angochha as it is against the human conduct that a person will keep with him the cloth used by him in the commission f an offence.
The sim card found from the mobile recovered from the possession of accused Manoj is in the name of one Sanjay Mandal. There is no invoice or bill of the number issued in the name of Sarawati Shah.
There are different versions regarding the sim cards given by PWs 5 & 6. One of the sim cards was in the name of Lavanya, why she gave the phone to deceased is not clear.
It was argued that there is no record to suggest that Lavanya went to the duty and Kavita to the hospital as claimed. He argued that PW 5 says that Kavita came FIR No. 473/08, PS. Shakar Pur Page 25 of 42 St. Vs. Pintoo Bisbas etc. back from hospital at 2 while Kavita says that she came back at 3. PW4 says that the door was broken at 8 and the police was informed immediately; the DD entry however is of 9:25 am.
He argued that the case has not been proved beyond reasonable doubts. He argued that PW 3 is referring to one Wazid however this person has not been examined.
28. Arguments heard record perused.
29. Dealing with defence of the accused first, it was argued that the absence of signatures of PW Lavanya and Kavita on the seizure memos create a doubt regarding their presence at the spot. The evidence led by prosecution is required to be looked into totality to see if any such doubt is actually arising. PW 1 Gopal Singh Nim in his evidence says that he saw ladies crying, who were so disturbed that they could not respond his queries, which prompted him to report the matter to the police. PW 4 Ganesh Sahu deposed that Lavanya and Kavita had come to his shop on 21/09/2008 around 8 am and had sought his help to break open the door of Susmita's room. He broke the door and both the women went inside the room. They came back in five minutes and told that dead body of Sushmita was lying in the room. He says in his cross examination that Lavanya and Kavita went to the room with him, when he went there with the police. PW 21 Ct. Pavinder says that the IO made inquiries from Lavanya and Kavita at the spot. He says that the phone no of brother of the deceased was taken by the IO from Lavanya and Kavita at the spot. IO PW 31 also says that he FIR No. 473/08, PS. Shakar Pur Page 26 of 42 St. Vs. Pintoo Bisbas etc. examined Lavanya at the spot and that Lavanya had identified the deceased as Sushmita. With that much evidence on record regarding presence of the two women at the spot, mere non existence of their signatures on seizure memos, does not become a better evidence to presume their absence from the spot.
30. The next argument of Ld counsel is that the rent agreement of Lavanya has not been proved; her articles were lying in the room of deceased as claimed by her, thus there is a presumption that she was living in the flat of Sushmita along with her. PW 2 Yash Pal Jadeja said in his evidence that he had given the first floor of the house to Sushmita and the top floor to Lavanya. He says that he did not get an agreement executed with Lavanya, as she had come through Sushmita and also says that the two women shared the kitchen. PW 4 Ganesh Sahu deposed that on 20/09/2008 he had broken the door of Lavanya's room in the night of 20th and the room of Sushmita, the next morning, which clearly shows that the two women were in possession of different rooms at different floors. PW 8 Kavita also stated that Lavanya was residing on the upper floor of house of Sushmita and that she i.e.PW 8 and Lavanya used to sleep in Lavanya's room. As regards the belongings of Lavanya being with Sushmita are concerned, PW 2& 8 have stated that the two of them shared the kitchen and were known to each other so the articles of Lavanya lying in the room of Sushmita is not completely unbelievable.
31. The argument on IMEI nos and the sim cards shall be considered while we discuss the evidence later in the order.
FIR No. 473/08, PS. Shakar Pur Page 27 of 42 St. Vs. Pintoo Bisbas etc.
32. Ld counsel argued that there are different versions regarding the sim cards of Sushmita . There is however absolutely no contradiction in the testimony of PW 5 & 6. Both are saying that PW 6 needed the mobile for which pan card was provided by PW 5. The sim card no with 9873257661 was purchased by PW6 on the ID of PW5 and PW6 gave this number to deceased Sushmita. PW 28 says that he sold a mobile hand set to Sushmita with IMEI no 354162022051338 and she disclosed her phone no as 9873257661. The three witnesses are in fact corroborating each other to prove that the sim card no 9873257661 purchased by PW6 in the name of PW5 was given to deceased and this number was informed by her at the time she purchased a handset from PW 28. So far as argument of Ld counsel on why Lavanya gave her sim card to Sushmita is concerned, no such question was put to the witness when she entered the witness box. With no question or suggestion on the issue having been given to the witness at relevant time, it cannot now be questioned as to why she gave her sim card to the deceased. The witness stated that the number was issued in her name and she gave it to Sushmita. The fact having not been questioned in evidence is to be accepted as correct.
33. The defence counsel argued that the attendance register of Lavanya was not proved to show that she had gone to her office on the date of incident. The relevant portion of cross examination of Lavanya, who has been examined as PW 7 is reproduced hereunder for ready reference on the issue.
FIR No. 473/08, PS. Shakar Pur Page 28 of 42 St. Vs. Pintoo Bisbas etc. 'Examination in cheif : On that day I proceeded for my office around 11 am leaving Manoj and Sushmita Dev there at home and I returned home from my duty around midnight. Cross examination: My working hours are not fixed. At the time of incident I used to go at 11 AM and return back (sic) at 12 mid night. My attendance is marked in the company on 20/09/2008.' Apart from above there is no questions from or suggestion given to the witness on the issue of her work. The witness having categorically said that she went at 11 Am and came back after mid night and that her attendance was marked in her office and the defence having not questioned the truthfulness of her statement by questioning further or suggesting that she was telling lie on the issue, her statement stood proved as per law, leaving no doubt regarding her presence at her office during aforesaid period.
Similarly regarding Kavita, Lavanya stated in her evidence that when she went to Sushmita's room, Kavita met her there and informed her that she was having pain in her feet and so wanted to go to hospital. She further said that Kavita left for hospital around 9AM. She was not cross examined on the issue at all. Kavita who is examined as PW 8 also says that she left for hospital at 9 as she had swelling in her leg. In her crossexamination she was asked about the prescription of the hospital and she said that she was asked by the doctor to come on Monday and that thereafter she went to meet the person, who had got her employed in the house. Her statements so made were not questioned in crossexamination. No further proof on the issue was required as the defence itself did not challenge the truthfulness of the statements of these two FIR No. 473/08, PS. Shakar Pur Page 29 of 42 St. Vs. Pintoo Bisbas etc. witnesses.
It was argued by Ld defence counsel that there are contradictions regarding the timings. PW Lavanya told about the time of return of Kavita as 2 PM. Kavita, however, said that she came back around 3 3:30 PM. This is not a material contradiction more so when PW Lavanya's statement regarding time of return of Kavita is not coming from her personal knowledge. Similarly regarding time of breaking open of the door and the time of giving of information to the police, witnesses have given slightly different timings as Lavanya said that they woke up at around 8 :30, Kavita said that they woke up at 8 and PW 2 said that the two had come to his shop at 8. The times given by the witnesses were thus approximately said and the entire incident took place between 89 am. The time of giving information to Police Station has been specifically mentioned by PW 1 as 9:15 AM. There is no major contradiction as none of the witnesses was in fact speaking by the watch.
34. Evidence against the witnesses:
Access to the house of the deceased: PW 2 Yash Pal Jadeja stated in his evidence that Sushmita had engaged Manoj (who was identified by him during the evidence) as a servant and that accused Manoj used to look after her two dogs. He said that accused Pintoo (identified by him in court) was a rickshaw puller, who used to park his rickshaw in front of his shop. He stated that accused Pintoo and Manoj used to talk to each other.
PW 7 Lavanya deposed that accused Manoj ( identified by her in court ) FIR No. 473/08, PS. Shakar Pur Page 30 of 42 St. Vs. Pintoo Bisbas etc. was engaged by Sushmita through a rickshaw puller Pintoo ( identified by her in court). She said that accused Pintoo used to visit the house of Sushmita and Sushmita used to go to market and other places in his rickshaw. Pintoo used to have lunch at the house of Sushmita and she trusted him like a brother. She also deposed that Pintoo and his cousin (the juvenile tried by JJB) had come to the house of Sushmita on 17th September 2008 and remained there on 17th and 18th. On 19th Pintoo and the other boy left while Manoj remained in the house. PW 8 Kavita said that Manoj (identified by her in court) used to work in the house of Sushmita and used to sleep in the same house outside Sushmita's room. Regarding Pintoo she says that he and his associate had come to the house of Sushmita on 17th or18th of September 2008.
She said that the two of them remained in the house for two nights. This part of the evidence of both the witnesses remained unchallenged in cross examination. It thus stands proved that accused Manoj was living in the house of deceased while accused Pintoo used to visit her and had stayed at her house on 17th and 18th /09/2008 along with his cousin.
35. Last seen evidence: PW 8 says that when she left for hospital at 9 AM accused Manoj and Lavanya were with deceased. PW 7 Lavanya says that she left the house at 11 am leaving behind accused Manoj with the deceased. PW 2 saw all the three accused Pintoo & Manoj and the juvenile on 20/09/2008 around 2: 30 or 3:00 PM and on inquiry he was told that they were going to railway station. Around 3:00 PM PW 8 came back and found the door locked. Thus accused Manoj was seen alive FIR No. 473/08, PS. Shakar Pur Page 31 of 42 St. Vs. Pintoo Bisbas etc. for the last time with the deceased by ywo witnesses. He & accused Pintoo & another boy were seen by PW 2 around 2:30 3:00 pm that day and Manoj was not found in the house after 20/09/2008, accused Pintoo was also not seen in the area after this date. Accused Pintoo and Juvenile had also come to Delhi and had stayed in the house of the deceased and had left a day prior to the incident. Thereafter they were seen by PW Jadeja near the house of the deceased on the date of incident. Thus there are as many as three witnesses who saw the accused Manoj and Pintoo in and near the house of the deceased after which the deceased was not seen alive. The prosecution thus succeeds in proving that the accused were with the deceased around the time of incident and that no body saw her alive after that.
36. Conduct of the accused The conduct of accused Manoj Shah after the incident gives an indication regarding his involvement in the commission of offence. He as per three prosecution witnesses was working as a servant in the house of deceased. In fact the defence indirectly admitted this fact when it gave suggestions to the prosecution witnesses Lavanya and Kavita that deceased had given a mobile phone to Manoj Shah and she used to talk with him; it was also suggested to Kavita that she had talked with her relatives from the phone provided to Manoj by the deceased. Manoj as per PW Lavanya and Kavita was in the house when they left. He was not found in the house after the incident. His bag was also found missing. There is no explanation by the defence on what made the witness leave the house abruptly without informing anyone FIR No. 473/08, PS. Shakar Pur Page 32 of 42 St. Vs. Pintoo Bisbas etc. and thus points towards his involvement in the commission of offence. Similarly accused Pintoo as per PW Lavanya and Kavita had come to the house of deceased and had also stayed there for two days and was seen by PW Yashpal Jadeja around 2:30 3:00 PM near the house of the deceased. In fact the witness had also talked with the accused and on asking was told that they were going to leave a friend to railway station. They had a bag with them at that time. He too however, left abruptly and was arrested from West Bengal. The conduct of both the accused points out towards his involvement in the commission of offence and is admissible under section 8 of evidence act.
37. Recoveries: The prosecution has examined several witnesses to prove that Sushmita Dev was in possession of two mobile phones, which along with some other articles were stolen from her house. As discussed above PW 4, 5 and 28 have proved that Sushmita used mobile number 9873257661, which was given to her by PW 5 and was purchased on the ID of PW 4. It is also proved (by PW 28) that she had bought a mobile hand set with IMEI no 354162022051338. PW 12 has brought the record of mobile no 9990898356, which was in the name of Lavanya and as per the call records produced by PW 12 and exhibited as PW 12/A this no. was used in the mobile hand set with IMEI no 354162022051338 i.e. the hand set bought by Sushmita from PW
28. This mobile phone as per PW 20, 22, 27 & 32 was found beneath the Takhat at the house of accused Pintoo, who was traced with the help of the local police FIR No. 473/08, PS. Shakar Pur Page 33 of 42 St. Vs. Pintoo Bisbas etc. of West Bengal. As per PW 22 this mobile was seized by the I.O. vide seizure memo Ex PW 22/1 and was signed by him at point X. This mobile at the time of seizure had sim card no 9733639007 in it. The witness said in his cross examination that the entire recovery proceedings were conducted in presence of local police and the local police also accompanied the investigation team to the court where the accused was produced after his arrest. The witness gave the names of the police officers of the local Police Station, who accompanied them.
PW 29 has deposed that in the year 2008 he used to sell SIM cards from his shop "Kalpana Telecom" and that he had sold sim card no 9733639007 to Pintoo Biswas of Karimpur. He said that he had taken voter I card and one passport size photograph along with customer application form from Pintoo. He proved his original register as Ex PW29/A. The witness also produced the registration certificate of his shop as Ex PW 29/DA. The witness had identified accused Pintoo as the person to whom he had sold the sim. Further corroboration comes from evidence of PW 9 of Vodaphone, he said that documents mark X9, X9A and X 9B were sent to Delhi police on its registered ID after obtaining the same from the West Bengal office of Vodaphone. The witness did not produce any document in original, yet his testimony is important for prosecution and is to be accepted as a corroboratory piece of evidence since he admits that the emails relied upon by the Prosecution were in fact sent from his office and that they were obtained from the concerned office of Vodaphone. This email is an official exchange between two companies and the document along with email are the computer generated documents, and though the witness says that he does not have FIR No. 473/08, PS. Shakar Pur Page 34 of 42 St. Vs. Pintoo Bisbas etc. personal knowledge about the document, he does not say that this document is not genuine. No such suggestion has either been given to him. These documents corroborate the testimony of PW 29 that the sim card 9733639007 was sold to accused Pintoo and that this sim card was used in the mobile phone of the deceased with IMEI no 354162022051338 has been proved by IO PW 31 V.K.P.Singh.
The prosecution thus proved that accused Pintoo was in possession of mobile hand set of the deceased with IMEI no 354162022051338 and the sim card bought in his name was in the mobile handset at that time.
PW 20, 22, 27 & 32 also proved that accused Manoj, had got recovered mobile phone make Nokia which had sim card no 899151000000522288451 and five more sim cards. The seizure memo prepared in this regard says that the IMEI no was 35293802938023849881 and the sim no was 9800726845, memo is Ex PW22/5 and as per PW22 had his signatures at point X. PW 20, 22, 27 & 32 deposed that accused Manoj was apprehended at the instance of accused Pintoo and had got recovered the mobile handset and the sim card from a box lying inside his house. It was argued that there are different IMEI no of this phone as mentioned on seizure memo and the evidence.The memo is of recovery of the mobile phone with IMEI no 35293802384988, which at that time had sim card no 9800726845 inserted in it. ASI S.P.Singh PW 32, who prepared the memo, however gave a statement to the I.O. that he had written the IMEI no incorrectly in the memo as it was dark and he gave a similar evidence in the court when examined under section 311 Cr.P.C. The IMEI no of the recovered phone as proved, therefore, is 352938023549681. The investigation suggests that the handset with FIR No. 473/08, PS. Shakar Pur Page 35 of 42 St. Vs. Pintoo Bisbas etc. IMEI no 35293802938023849681 was used by deceased and sim no. 9800726845 was used in this handset. Ld counsel has argued that there are two different versions regarding ownership of the no 9800726845. While as per PW30 Rathin Saha a SIM card bearing no. 89915100000052228451 and mobile no 9800726845 was sold to Saraswati Saha by him; PW11 brought the summoned record in respect of mobile number 9800726845 and stated that the same was in the name of Sanjay Mandal of Darjeeling West Bengal. He filed the documents of subscriber and proved them as Ex.PW11/A and Ex.PW11/B. It has been proved by PW 22, 27 & PW 32 that the sim card no 9800726845 was recovered from the possession of accused Manoj and this no was used in one of the mobile phones of Sushmita. The evidence in this matter has shown that the ownership & the possession of the sim cards have been found to be with different persons. Both the no of deceased were in names of other persons but it has been proved that both the nos were used by her. PW 11 categorically said that accused Manoj was with Saraswati Shah when the mobile number was given to her. Thus even if no 9800726845 was not in the name of accused Manoj or Sarawati Shah, the same was found from his possession has been established in the evidence. It is relevat to note at this juncture that accused Manoj was in possession of five more sim cards when he was arrested.
If the recovery of mobile phone from the accused is found believable, rest of recoveries at his instance vide the same memo are also to be accepted as genuine recoveries. These recoveries as stated above are of personal belongings of the deceased and the articles were duly identified by PW Lavanya in TIP proceedings proved by PW FIR No. 473/08, PS. Shakar Pur Page 36 of 42 St. Vs. Pintoo Bisbas etc. Sh Vivek Gulia Ld Magistrate in his evidence.
Ld Counsel for the accused relied upon the judgment of Honble Delhi High Court in T. Murugan Vs State, 2008 (10)AD Delhi 91 Staila Sayyed Vs State and 2011 (4)JCC 2463, State of NCT Delhi Vs Hazara Singh wherein the recoveries from the alleged accused were not believed by the Hon'ble High Court as they were not made in presence of independent witnesses.
The Hon'ble Supreme Court, however, in AIR 2003 SC 1311, KaramJit Singh Vs State (Delhi Administration) held that " The testimony of police personnel should be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person Acts honestly applies as much in favour of police personnel as from other persons and it is not proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.
A prudent understanding in view of the aforesaid judgments would be that it is nature and the manner of recovery, which should be decisive of whether it is reliable or not.
Recoveries in the present case are specific articles, which belonged to the deceased. The two mobiles phones, which have been conclusively proved to be of the deceased were not only recovered from the possession of the accused but it is proved that these mobiles were also used by the accused using sim cards, which were recovered from their possession and which were purchased by the accused. FIR No. 473/08, PS. Shakar Pur Page 37 of 42 St. Vs. Pintoo Bisbas etc. Admittedly no public witness has witnessed the recovery proceedings. Yet these recoveries become beleivable when read with the other evidence collected by the prosecution. The two police witnesses prosecution could name the police officials of local PS, who went with them in the raid and on whose instance the accused were arrested. This is also a relevant when trying to judge whether or not the recoveries were genuinely made.
Corroborative evidence: Accused Pintoo was a rickshaw puller and he had taken the rickshaw on rent from PW 3 Kuldeep Singh. He took the rickshaw on rent in June2008 and used the rickshaw till 20/08/2008 (the date of incident). Thereafter he deposited the rickshaw with PW 3 saying that he was going to his village. The witness stated that one Wazid, who was his mechanic, had verified the address of Pintoo before he gave the rickshaw to Pintoo on rent. Ld defence counsel argued that Waazid should have been examined. Wazid could merely have proved that he verified the address of the accused Pintoo. The fact that accused Pintoo took the rickshaw and used it till 20th August 2008 has been proved by the witness and has not disputed by the defence in cross examination. Further PW 15 has proved that accused Pintoo had taken a room on rent in his house in July and had left the same in August 2008 and also that he used to ply Paddle rickshaw. The evidence of PW Lavanya and Yash Pal Jadeja that accused Pintoo used to ply rickshaw in the area and that he had left for village and had come back with the juvenile, whereafter he stayed in the house of Sushmita for two days and then left saying that he had to look for a house to live, thus stands corroborated by the evidence of these witnesses.
FIR No. 473/08, PS. Shakar Pur Page 38 of 42 St. Vs. Pintoo Bisbas etc. It was argued by Ld counsel that it was unbelievable that accused would keep the angochha with him after the incident. The accused could not have left the angochha at the place and it was not blood stained. There was, therefore nothing abnormal in accused having not thrown it.
The Prosecution in the case thus has proved that the accused Manoj was living in the house of deceased. He was left with the deceased when she was last seen alive. Thereafter he, accused Pintoo and juvenile were seen near the house of deceased. They had a bag with them. They left the place and were not seen thereafter till their arrest from West Bengal. It has proved the accused were found in possession of mobile phones and the sim cards which were as per witnesses sold to accused Pintoo and mother of accused Manoj in his presence and also the personal belongings of the deceased, for which they had no explanation. The chain of the events is thus complete and is pointing towards the guilt of the accused.
The accused are convicted of the charge framed against them i.e of having caused the murder of deceased Sushmita on 20th September 2008 at 83 A I floor Kundan Nagar Laxmi Nagar. Let they be heard on point of sentence.
Announced in the open
court on 05.04.13 (ANURADHA SHUKLA BHARDWAJ)
ASJ03, (EAST) KKD COURTS/DELHI/05.04.13
FIR No. 473/08, PS. Shakar Pur Page 39 of 42 St. Vs. Pintoo Bisbas etc.
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) KARKARDOOMA COURTS, DELHI
Unique ID No. 02402R0047572009
Sessions Case No.07/13
State v/s (1) Pintoo Bisbas S/o Sh. Madhusudan Bisbas
R/o. Village Jal Tank Para, Natana Colony,
PS Karimpur, Distt Nadia, West Bengal,
(3) Manoj Shah S/o Sh. Manav Shah
R/o. Village Jal Tank Para, Natana Colony
PS Karimpur, Distt. Nadia, West Bengal.
FIR No. 473/08
PS. Shakar Pur
U/s.302/380/411/120B/34 IPC
Pr: Sh. I.H.Siddiqui, Ld. Addl. PP for the State.
Both the convicts in custody.
Sh. Gaurav Vashisth, Ld. Amicus Curiae, for both the
convicts.
ORDER ON SENTENCE
1. Both the convicts have been convicted of the charge framed against them i.e of having caused the murder of deceased Sushmita on 20th September 2008 at 83 A I floor Kundan Nagar Laxmi Nagar.
FIR No. 473/08, PS. Shakar Pur Page 40 of 42 St. Vs. Pintoo Bisbas etc.
2. Heard on the point of sentence.
3. Ld. Counsel for the convicts has argued that the offence does not fall within the ambit of rare cases and that a lenient view should be taken.
4. Ld. Addl. PP on the other hand argued that the offence was committed in brutal manner and that maximum punishment should be awarded. The convicts had caused the death of deceased by strangulation with a motive of theft. The act is not of the category of rarest amongst the rare cases.
5. Both the convicts are sentenced U/s. 302 IPC to rigorous imprisonment for life and also to pay a fine of Rs. 10,000/ each in default of payment of fine to further undergo SI for three months.
6. The period of detention already undergone by them during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
7.
8. A copy of this order as well as of judgment be given to convicts free of cost. Copy be also sent to Jail Superintendent for information and necessary action. FIR No. 473/08, PS. Shakar Pur Page 41 of 42 St. Vs. Pintoo Bisbas etc. Announced in the open court on 17.04.13 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/17.04.13 FIR No. 473/08, PS. Shakar Pur Page 42 of 42 St. Vs. Pintoo Bisbas etc.