Delhi District Court
State vs . on 16 September, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Nawab Khan S/o Sh. Mukhtiyar
R/o C151, Old Seema Puri,
Delhi.
2. Qamar Ahmad @ Sahil S/o Sh.Fazal Ahmad
R/o 15 Sahi Masjid, Rashid Market,
Patpar Ganj Road, Delhi
3. Rashmi @ Mahak D/o Sh. Prem Singh
R/o B52, 11nd Floor, Dilshad Colony,
Delhi.
FIR No.: 450/2005
PS: Seema Puri
U/Sections 365/302/120B/34 IPC
Sessions Case No. : 86/2008
Date of Institution of case : 17.12.2005
Date on which assigned to this court : 01.12.2008
Date of Arguments : 29.8.2011
Date of Judgment : 16.9.2011
JUDGMENT:
The case of the prosecution is that on 5.8.2005 in the Sessions Case No. 86/2008 Page 1/39 2 morning, one Vishram Singh came to the Police Station Seema Puri and lodged a complaint regarding missing of his son Gyanender Singh, which was recorded vide D.D. No. 12A. On that day at about 6.00 p.m. Vishram Singh again came in the Police Station along with Yashpal and made his complaint to the police. The complainant Vishram Singh has alleged in the complaint that he was Sub Inspector in Madhya Pradesh Police and was posted in Special Branch in Muraina, Madhya Pradesh. His son Gyanender Singh was working as Constable in Delhi Police since 1996 and he was dismissed from service on 14th July 2004. The marriage of Gyanender was solemnized in the month of November 2001 and his wife has expired in September 2002. After the death of his wife, Gyanendner came into contact with a girl namely Rashmi @ Mehak and they started living as husband and wife. He further alleged in his complaint that on his making him understand, Gyanender had severed his relations with Rashmi. Thereafter, in June 2004 he got married Gyanender Singh with one girl namely Chitra resident of Muraina. On this Rashmi was annoyed with Gyanender Singh. Even after the marriage of Gayender Singh, Rashmi had not severed her relations with him. Rashmi used to call Gayanender Singh in her tenanted Flat No. B52,11nd Floor, Dilshad Colony and had Sessions Case No. 86/2008 Page 2/39 3 relations with him. The complainant has further alleged in the complaint that when he made Gyanender Singh understand for not having intimacy with Rashmi. On 25th July 2005, Gayanender informed him i.e. complainant on telephone in his house at Muraina that Rashmi had developed her relations with Sahil, who was residing in Khureji, Delhi and Sahil had asked him not to meet Rashmi. Sahil had also threatened Gyanender Singh that in case he meets Rashmi he would kill him. Gyanender felt danger from Rashmi and Sahil.
The complainant Vishram Singh has also alleged in the complaint that on 31.7.2005 at about 11.00 a.m. Rashmi @ Mehak telephoned him on his telephone in his house at Muraina that he should make Gyanender Singh understand that he should not interfere between her and Sahil, otherwise he would have to repent for whole life. On this, on 3.8.2005 the complainant had come to Delhi from Muraina and he telephoned on her mobile phone number 9871918747 but the said mobile phone was off. Then, the complainant telephoned Yashpal, who was a friend of his son Gyanender Singh. Yashpal told the complainant that from 1.8.2005 the mobile phone of Gyanender was switched off. Thereafter, he went to the house of Yashpal at East Loni Road, Delhi and traced Sessions Case No. 86/2008 Page 3/39 4 him at some places, but could not locate him. On 5.8.2005 in the morning, he along with Yashpal went to the house of Rashmi at B52 Dilshad Colony where Rashmi and Shail were present. He enquired from both of them about Gyanender Singh, but both of them showed their ignorance about the whereabouts of Gyanender. But on their repeated asking, Rashmi and Sahil told them that on 1.8.2005 at about 10.00/11.00 p.m. Gayender met them at PVR Saket. Thereafter Rashmi and Sahil had not told anything. He further alleged in the complaint that he was not satisfied with the answers given by Rashmi and Sahil. He was afraid that Rashmi and Sahil had kidnapped his son Gyanender.
On this statement of Vishram Singh the FIR was registered. The investigation was taken up by S.I. Pramod Anand.
During investigation, on 5.8.05 the Investigating Officer arrested the accused Rashmi @ Mehak and Sahil from B52 11nd Floor, Dilshad Colony on the pointing out of complainant Visharam and Yashpal. The I.O. recorded their disclosure statements. Both the accused persons had disclosed that they have joined one Nawab Khan, who was working as a car mechanic at Seema Puri and they killed Gyanender Singh. They have also disclosed that after committing the murder of Gyanender Singh, they have thrown his Sessions Case No. 86/2008 Page 4/39 5 dead body near Palwal. The accused Nawab was arrested from House No. C151, Old Seema Puri on the pointing out of accused Rashmi and Sahil and his disclosure statement was also recorded by the IO. Accused Rashmi got recovered a gold chain of the deceased Gyanender from her room. In pursuance of the disclosure statement of accused Rashmi I.O. also seized the Maruti Zen car bearing No. DL3CL1012 which was parked on the road near the flat of accused Rashmi. This car was used in the commission of the offence. In pursuance of his disclosure statement, accused Nawab got recovered one wrist watch make Classic Quartz of deceased Gyanender Singh from the room. Accused Sahil got recovered one mobile phone make Nokia 2300 of deceased Gyanender from an almirah in his room. On 6.8.2005, all the three accused persons took the police including complainant Vishram and Yashpal to the place on a road leading towards Phulwari near Palwal and pointed out the place where they had thrown the dead body of Gyanender on the intervening night of 01/02.08.2005. The Investigating Officer made inquiries from the neighboring area and came to know that in the morning of 2.8.2005 a dead body was recovered from that place. During investigation, the I.O. made inquiries from local police. ASI Attar Singh of Police Station Palwal, who recovered the dead body Sessions Case No. 86/2008 Page 5/39 6 apprised the I.O. that the postmortem of the dead body was got conducted on 5.8.2005 in Civil Hospital, Palwal and the dead body had been kept in the mortuary of Civil Hospital. ASI Attar Singh showed photographs of the dead body and from the photographs, complainant Vishram Singh and Yashpal identified the dead body to be that of Gyanender Singh. Thereafter sections 302/201 IPC were added by the Investigating Officer. After completing the necessary formalities, the dead body was handed over to the legal heirs of the deceased.
After completion of the investigation, the charge sheet was filed in the court for the offences punishable U/ss 365/ 302/201/34 IPC against all the three accused persons.
The Ld. M.M after compliance the the provisions of section 207 Cr.P.C., committed the case to the court of Sessions.
Charges for the offences punishable under sections 120 B IPC, 365/34 IPC, 302/34 IPC and u/s 201/34 IPC were framed against all the three accused persons to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined as many as 17 witnesses.
PW1 is Avneet Thapar @ Mintu. He stated that he Sessions Case No. 86/2008 Page 6/39 7 did not know anything regarding this case. This witness has not supported the case of the prosecution. This witness was declared hostile by Ld. Addl. P.P. for the State. In his cross examination by Ld. Addl. P.P. he has sated that his statement was not recorded by the police in this case. He denied the suggestion of Ld.Addl.P.P. that he had stated to the police that on 1.8.2005 at about 10.30 P.M. he had gone to see a movie in PVR, Saket and he had seen Gyanender in the company of accused persons namely Rashmi @ Mehak,Sahil @ Qamar Ahmad and Nawab Khan, there. He denied the suggestion that he had seen deceased Gyanender in the company of accused persons on 1.8.2005 or that he has been won over by the accused persons and deposing falsely.
PW2 Vishram Singh is the complainant. He has deposed that he was Sub Inspector in D.S.B. Police in Muraina. He had retired from his service. Gyanender Singh was his son and he was working in Delhi Police as Constable. He was discharged from his duty from 14th July 2004. Prior to the incident, when he ( Gyanender) was posted in Police Station Preet Vihar, he came in contact with one Rashmi @ Mehak. Marriage of his son was solemnized in November 2000 but his wife had expired in the year 2001. He further deposed that his son was alone, so he came into the Sessions Case No. 86/2008 Page 7/39 8 contact of accused Rashmi. In the month of October 2003, he came to know that Gyanender Singh had married accused Rashmi and started living with her in Flat No.503, Neelgiri Apartment, Kaushambi, as husband and wife. He called Gyanender to his house to confirm this news, where he accepted that fact of marriage. But he told that he had severed his relations with Rashmi. Gyanender further told him that Rashmi was living in a tenanted flat at Dilshad Garden and he was living in his flat separately and he had no concern with Rashmi. He got married Gyanender with Chitra on 22nd June 2004. After the marriage, Gyanender came back to Delhi and telephoned him on 25th July 2004 that a quarrel had been taken place between him and accused Rashmi and Sahil. Gyanender also informed him that Rashmi and Sahil were living in Dilshad Garden as husband and wife and they threatened to kill him in case he interfered between them.
PW2 further deposed that on 31/07/05 at about 11.00 a.m. accused Rashmi telephoned him on his telephone No.231767 that he should make Gyanender understand otherwise he would have to repent for whole of life. He told Rashmi that he would come to Delhi in 23 days and till then, she should not take any step. She told him that she was fed up with him (Gyanender) and she would Sessions Case No. 86/2008 Page 8/39 9 take some step against him ( Gyanender). On 2nd August 2005, Yashpal, who was a friend of Gyanender informed him that for the last two days, mobile phone of Gyanender was found switched off and he ( Yashpal) had searched him (Gyanender), but he could not locate him. He told Yashpal on telephone that he had received a threatening telephone call from Rashmi and he should contact Rashmi and Sahil. Yashpal informed him that he had already contacted Rashmi and Sahil on phone, but they were not present in Delhi and were present in Dehradun. He had further told him that they had showed their ignorance about the whereabouts of Gyanender. He told him that he had contacted him ( Gyanender) on 01/08/05 between 8.00/9.00 p.m. on phone and he (Gyanender) told him that he was going to see Rashmi and Sahil to settle the matter at PVR in Saket. On 3rd August 2005, he contacted accused Sahil on his mobile phone. Sahil asked him to come to Delhi and told him that he would give all the detail about Gyanender in Delhi.
PW2 further stated that on next day, he reached Delhi at about 6.00 a.m. He contacted Yashpal from Railway Station, who called him to his flat at Loni Road. He alongwith Yashpal went to the flat of Gyanender Singh at Neelgiri Apartment, Kaushambi, Ghaziabad and found the said flat locked. He rang up accused Sahil, Sessions Case No. 86/2008 Page 9/39 10 who told him that he was in Dehradun and requested him to wait for him in Delhi.
PW2 further stated that on 04th August 2005, He alongwith Yashpal reached Police Station Seema Puri in the afternoon and explained the circumstances of disappearance of Gyanender Singh to SHO Inspector Jai Kishan, who asked him to give the complaint in writing. Accordingly he gave the complaint in writing to the SHO. On 5.8.2005 he went to the Police Station and SHO advised him to lodge the DD entry which was registered vide DD No. 12A at 10.00 a.m. dated 05/08/2005 regarding missing of Gyanender. He had searched Gyanender of his own, but no clue was found. He alongwith Yashpal went to one Avneet @ Montu, a friend of Gyanender, Sahil and Rashmi to make inquiry about Gyanender. Avneet told him that he had seen Gyanender with the accused persons on 01/08/2005 at PVR Saket. On the same day, he again went to Police Station and told the said fact to SHO. SHO directed SI Pramod Anand to record his statement. SI Pramod Anand recorded his statement Ex.PW2/A on which SI Pramod Anand made an endorsement and got the FIR registered.
PW2 further stated that after registration of the FIR, he alongwith S.I Pramod Kumar, Yashpal and other police officials Sessions Case No. 86/2008 Page 10/39 11 went to the house of accused Rashmi where accused Rashmi and Sahil were found present. SI Pramod Kumar interrogated both the accused vide Ex.PW2/B and Ex.PW2/C and they confessed about the incident. Both the accused persons were arrested vide arrest memos Ex.PW2/D and Ex.PW2/E and their personal search were also conducted vide memos Ex. PW2/F and Ex.PW2/G. Accused Rashmi got recovered one gold chain of Gyanender from under her bed lying in her bedroom in her house, which was seized vide seizure memo Ex. PW2/H. Accused Rashmi pointed out a Maruti Zen car bearing No. DL3CL1012, which was used in the commission of offense. Their car was stationed in front of her flat i.e. B52, Dilshad Colony, which was also seized vide seizure memo Ex. PW2/1.
PW2 further stated that in pursuance of disclosure statement of accused Rashmi, accused Nawab Khan was arrested at the instance of accused Rashmi and Sahil from his house No. C151/C, Old Seema Puri, Delhi vide arrest memo Ex.PW2/J and his personal search was conducted vide memo Ex.PW2/K. Accused Nawab was interrogated. He made disclosure statement. Ex. PW2/L. Accused Nawab got recovered a wrist watch of Gyanender. It was of golden color having white dial. It was of Classic Quartz make and it Sessions Case No. 86/2008 Page 11/39 12 was kept in a box lying under his bed in a room of his house and the same seized vide seizure memo Ex.PW2/M. Thereafter, he, Yashpal alongwith police team and all the accused persons reached at the house of accused Sahil at Rashid Market, Khureji, from where, accused Sahil got recovered one mobile phone of Gyanender of make NOKIA of grey colour from an almirah, kept to a room in his house which was seized vide memo Ex.PW2/N. Thereafter, they all came back to Police Station Seema Puri.
PW2 further stated that on the next day. he and Yashpal again joined the investigation with the police. At the instance of accused persons, they went to District Faridabad, where accused persons pointed out a place near main GT Road,Village Phulwari, Police Station Sadar, Palwal, where dead body was thrown. The pointing out memos are Ex.PW2/O to Ex. PW2/Q. Dead body was not found there. Police made inquiries from passersby. One passerby told the police that on 02/08/05 in the morning hours, a body of young person was lying there which was taken away by police officials of Police Station Palwal Sadar. Thereafter, they went to Police Station Palwal, Sadar. SI Attar Singh of Police Station Palwal was conducting the investigation regarding the dead body. They met SI Attar Singh, who shown the photographs Sessions Case No. 86/2008 Page 12/39 13 of the dead body which he identified as of his son Gyanender. Dead body was preserved in mortuary. They went to mortuary alongwith police team, where he and Yashpal had identified the dead body of Gyandender. He received the dead body of his son for cremation. He left Faridabad for his native place Muraina and police officials alongwith accused persons left for Delhi.
PW3 is Yashpal. He deposed on the similar lines of complainant PW2. He also joined the investigation of this case along with the complainant PW2 with the police and supported the case of the prosecution on all the material facts. He corroborated the version of PW2 Vishram Singh on the material points.
PW4 SI Mukesh Jain Draftsman has deposed that on 16.8.2005 he along with Insp. Bakshi Ram and SI Pramod proceeded for village Bamni Khera, Phulwari Road, Palwal, Haryana. Prior to reaching the spot, they went to the local Police Station Palwal and from there ASI Attar Singh had joined them. On reaching the spot, he took rough notes and measurements of the spot which was an agricultural filed, at the instance of ASI Attar Singh. He further stated that on the basis of the said rough notes and measurements, he prepared scaled site plan of the spot, which is Ex. PW4/A. He destroyed rough notes and measurements after preparation of site Sessions Case No. 86/2008 Page 13/39 14 plan.
PW5 Head Constable Yashbir Singh is the Duty Officer. He deposed that on 5.8.2005 he was working as Duty Officer in Police Station Seema Puri. On that day, at about 6.42 p.m. SI Pramod Anand has handed over a rukka to him for registration of the case. Accordingly, he registered FIR No. 450/05 u/s 365/34 IPC. He proved the copy of FIR which is Ex. PW5/A. He made his endorsement on the rukka which is Ex. PW5/B. PW6 Constable Rambir Singh has stated that on 6.8.2005 on the direction of Duty Officer, he delivered the special report of this case to the Ld. M.M.at his residence and at the office of DCP North East.
PW10 Surender Singh has stated that in the year 2005, he was Sarpanch of village Phulwari. When he along with Rishi and Bir Singh were going to Palwal, he received an information that one dead body was lying near the bushes on the left side of the road leading to their village, near GT Road. He informed the police of P.S.Palwal Sadar. The police reached at the spot, conducted the proceedings and recorded their statements.
PW8 Rishi has stated that on 2.8.2005 he along with ExSarpanch Bir Singh and Sarpanch Surender were going to Sessions Case No. 86/2008 Page 14/39 15 Palwal. When they reached G.T. Road on the way which leads to their village, police were present there and a dead body was lying on the side of the road. The police conducted the proceedings, recorded their statements and thereafter took away the dead body. His statement is Ex.PW8/A. He also signed the panchnama which is Ex. PW8/B. PW9 Bir Singh has also deposed on the similar lines of PW8 Rishi. In his presence police conducted the proceedings of the dead body and he also signed the panchanama Ex. PW8/B. Police recorded his statement Ex.PW9/A. PW12 Uday Pal is the Photographer, who took the photographs of the dead body lying at the spot at the instance of the police officials of P.S. Palwal. The photographs are Ex. PW12/A ( 1 to 4 ) and the negatives of the said photographs are Ex.PW12/B (1 to 4).
PW13 is Dr. Mahender Dheeraj. He has stated that on 5.8.2005 he was posted as Medical Officer at General Hospital, Palwal. He conducted the postmortem on the dead body of an unknown person aged 30 years male. Postmortem was done by a Board of two doctors i.e. he and Dr. Rajesh. The postmortem report is Ex. PW13/A. He further stated that as per his opinion the cause Sessions Case No. 86/2008 Page 15/39 16 of death in this case is asphyxia due to throttling which is anti mortem in nature and sufficient to cause death in the ordinary cause of nature.
PW14 is Retired SubInspector Attar Singh. He has stated that on 02.08.05, he was posted as ASI in Police Station Sadar Palwal. A person belonging to village Phulwari informed him that one dead body was lying on the road which was going towards Phulwari from GT Road. He made a entry to this effect in Police Station Sadar Palwal. He along with the person who had informed him reached the place where dead body was lying. He conducted proceedings u/s 174 Cr.P.C. After that he had brought the dead body to General Hospital Palwal. Since the body was not identified it was got preserved in mortuary for 72 hours. On 05.08.05, the postmortem on dead body was got conducted. He had also written application to local municipal body for its cremation.
PW14 further stated that on 06.08.05, the police officers from Delhi met him in PS Sadar Palwal. He had taken them to General Hospital Palwal where Postmortem Report was obtained. The photographs of the dead body were handed over to Delhi police officers. The clothes which were worn by the deceased were also taken by police officers from Delhi. The identity of the dead body Sessions Case No. 86/2008 Page 16/39 17 could not be established. The proceedings u/s 174 Cr.P.C. are Ex.PW14/A, Ex.PW8/A, Ex. PW8/B and Ex.PW9/A. He has recorded DD No. 35 dated 2.8.05 which is Ex. PW14/B. This witness was cross examined by Ld. Addl. P.P. for the State wherein he has admitted to be correct that the photographs were taken by one Udai Pal who was having Deepak Studio at G.T. Road. He had also told in his statement that the identification of the dead body was of Gyanender. The photographs were seized vide memo Ex. PW14/C. Police had also recorded his statement.
PW17 is SI Pramod Anand. He has stated that on 5.8.2005 he was posted at Police Station Seema Puri. On that day, complainant Vishram Singh had come to the Police Station in the morning and got registered DD No. 12A regarding missing of his son Gyanender. On the same day at about 6.00 p.m., complainant Visharam Singh along with Yash Pal had again come to the Police Station and he recorded his statement Ex. PW2/A. He put his endorsement Ex. PW17/A and got the case registered after handing over the rukka to the Duty Officer in the Police Station. The investigation of this case was marked to him. He also recorded the statement of Yashpal.
PW17 further stated that on that day, he along with ASI Sessions Case No. 86/2008 Page 17/39 18 Shahid, Ct. Rohtas, Lady Ct. Ajnesh along with the complainant Vishram and Yashpal joined the investigation of the case. They reached B52, Second Floor Dilshad Colony, in a flat where they found Rashmi @ Mehtak, Qamar Ahmad @ Sahil. At the pointing out of Vishram and Yashpal, they were joined in the investigation of the case and were throughly interrogated. He inquired from them about the whereabouts of Gyanender. At the first instance both of them did not disclose anything but they broke down and stated that both of them had joined one Nawab Khan, who was working as a car mechanic at Seema Puri and was residing at Seema Puri. They all three had killed Gyanender and thrown the dead body near Palwal on the intervening night 01/02.08.2005. Accused Rashmi was arrested vide arrest memo and personal search memos Ex. PW2/D and PW2/F. Accused Qamar @ Sahil was also arrested vide arrest and personal search memos Ex.PW2/E and PW2/G. Thereafter he recorded the disclosure statements Ex. PW 2/B of Rashmi and that of Qamar Ex. PW2/C. In pursuance of her disclosure statement, accused Rashmi got recovered a gold chain from the left side below the mattress on the double bed in the room. The gold chain was identified by Vishram Singh father of the deceased as belonging to his son. The chain was measured and it was found to be of length of Sessions Case No. 86/2008 Page 18/39 19 35 c.m. and on the hook was written 22C KDM. A pullanda of the recovered chain was prepared and sealed with the seal of PA. Seal after used was handed over to ASI Shahid. The chain was seized vide seizure memo Ex. PW2/H. As per the disclosure statement of accused Rashimi, Maruti Zen Car bearing no. DL 3CL 1012 of white colour which was used in the commission of offence was parked on the road near the flat. The car was seized vide seizure memo Ex. PW2/I . At the pointing out of both the accused i.e Rashmi and Qamar, they reached H. No. C 151, Old Seema Puri and accused Nawab was apprehended from his house at the instance of the accused persons Rashmi and Qamar @ Sahil. Accused Nawab was arrested vide arrest and personal search memos Ex. PW2/J and PW2/K. He recorded the disclosure statement of accused Nawab which is Ex. PW 2/L. Accused Nawab then got recovered one wrist watch of make Classic Quartz, which was kept in a box inside the room. This watch was identified by complainant Vishram as belonging to his son Gyanender. It was seized vide seizure memo Ex. PW2/M. PW17 further stated that as per the disclosure statement of accused Qamar @ Sahil one mobile phone of the deceased was retained by him at the time of commission of the offence. Thereafter Sessions Case No. 86/2008 Page 19/39 20 the police team alongwith the accused persons and witnesses Vishram and Yashpal reached H.No.50 Shahi Masjid, Rashid Market, Patpar Ganj Road, which was the house of accused Qamar @ Sahil. He had requested 45 public persons from the locality to join the investigation but no one was willing to come forward. Accused Qamar @ Sahil got recovered one mobile phone make Nokia 2300 of grey colour from an almirah in the room. The said mobile phone was identified by Yaspal and Vishram as belonging to Gyanender. The IMEI number was recorded in the seizure memo and the mobile phone was seized vide seizure memo Ex. PW2/N. After that they all returned back to the Police Station Seema Puri and the case property was deposited in the malkhana. All the facts of the case were apprised to the SHO and section 120B IPC was added.
PW17 further stated that on the next day i.e. on 06.08.2005 in the morning, he, Inspector Bakshi Ram, ASI Shahid, Ct. Rohtash, Lady Ct. Ajnesh, Yashpal and Vishram along with all the three accused persons left for Palwal, Haryana and reached Palwal at about 9.3010.00 a.m. Seven eight kilometer ahead of Palwal, they have taken a UTurn on the left side. There is a kaacha road leading towards village Phulwari. They went ahead on the road Sessions Case No. 86/2008 Page 20/39 21 for about 200 meters and on the left side there was a transformer situated in the fields . The accused persons identified the place near the bushes to be the place where they had thrown the dead body of Gyanender on the intervening night of 01/02.08.2005. He prepared separate pointing out memos in this regard which are Ex. PW2/O, Ex. PW2/P and Ex. PW2/Q. He made inquiries from the neighbouring areas and it was revealed that on the morning 02.08.2005 a dead body was recovered from that place. The said area is under the jurisdiction of Police Station Sadar Palwal. Then, they all reached Police Station Sadar Palwal and made inquiries from the local police staff. In the Police Station Sadar Palwal, it was revealed that a dead body had been recovered on the morning of 02.08.2005 and the necessary legal proceeding in this regard were carried out by ASI Attar Singh. He met ASI Attar Singh at P.S. Sadar Palwal who told him that an unidentified dead body of a young male was recovered in the morning of 02.08.2005. He also apprised him that the postmortem of the dead body was carried out on 05.08.2005 in Civil Hospital, Palwal and that the dead body had been kept in the Civil Hospital Mortuary. ASI Attar Singh showed four photographs of the dead body and from the photographs, witnesses Vishram Singh and Yashpal identified the dead body to be that of Gyanender. Sessions Case No. 86/2008 Page 21/39 22 The photographs are Ex.PW 12/A and Mark PW 2 (1 to 4). Sections 302 /201 IPC were added. The investigation of the case was handed over to Inspector Bakshi Ram. Thereafter the whole team comprising of the police staff, witnesses and accused persons reached Civil Hospital Mortuary. In the hospital the dead body was identified by Vishram Singh as of his son Gyanender. The IO recorded the identification statements of Vishram and Yashpal.
PW17 further stated that I.O. Inspector Bakshi Ram recorded the statement of the police staff of PS Sadar Palwal and other witnesses. On 16.08.2005 he again joined the investigation in the present case alongwith the IO Inspector Bakshi Ram and Draftsman SI Mukesh Jain. They all reached PS Sadar Palwal from where ASI Attar Singh accompanied them to the spot where the dead body was found. On the pointing out of ASI Attar Singh, Draftsman Mukesh Jain prepared the site plan. Then they returned back to Delhi.
PW16 Inspector Bakshi Ram is the Investigating Officer of the case. He has stated that on 06.08.05, he was posted in Police Station Seemapuri as Additional SHO. SI Pramod was already investigating the present case and he had already arrested the accused persons. In the disclosure statements of the accused the fact Sessions Case No. 86/2008 Page 22/39 23 was revealed that accused persons had murdered Gyanender and thrown his dead body in Palwal. On 06.08.05, he along with SI Pramod, ASI Shahid Khan, Ct. Rohtash, lady Ct. Ajnesh and three accused persons along with Vishram and Yashpal had gone to Sadar Palwal area. As per the pointing out and disclosure statements of accused persons who had led them to a road leading towards Phulwari village which was at a distance of 200250 meters from the main road. There was a electric transformer installed near the place. All the accused persons had pointed out the place and pointing out memos in this regard were prepared. Thereafter, they all had returned to P.S. Sadar Palwal. There, they met ASI Attar Singh & Incharge of P.S. Sadar SI Bhagat Ram. The I.O. ASI Attar Singh was investigating the case. He showed them 4 photographs which were of deceased Gyanender and the same were seized vide memos Ex.PW14/C. The photographs are Mark Ex.P2/1 to Ex.P2/4 and Ex.PW12/A. The photographs were seen by Vishram and Yashpal. Vishram had identified his son Gyanender from the photographs. Thereafter, They went to Civil hospital Palwal where the dead body of Gyanender was kept. The dead body was taken into possession. Thereafter, on his dictation the statements of Vishram, Yashpal, A.S.I. Attar Singh and other witnesses were recorded by S.I. Sessions Case No. 86/2008 Page 23/39 24 Pramod. Information regarding murder was sent to the court and the senior police officers through special messenger. He also recorded the statement of one public person Avneet @ Mintu in the Police Station.
PW16 further stated that on 16.08.05, he again joined the investigation of this case along with S.I. Pramod and Draftsman S.I. Mukesh. They all reached PS Sadar Palwal. ASI Attar Singh had accompanied them to the place where the dead body was thrown by the accused. S.I. Mukesh prepared rough and marginal notes on the basis of which scaled site plan was prepared. On 10.10.05, HC Rajender had gone to Palwal and brought the Postmortem Report and other papers. The same was handed over to him which were seized vide seizure memo Ex.PW16/A. He has also recorded the statement of Avneet (Mark PW1/A) correctly and whatever was stated to him by the witness.
PW7 Lady Constable Ajnesh Tyagi, PW11 Head Constable Rohtash Kumar & PW15 ASI Shahid Khan have joined the investigation of this case with SI Pramod Anand and other staff. They have supported the case of the prosecution on all the material points.
The statements u/s 313 Cr.P.C. of all the three accused Sessions Case No. 86/2008 Page 24/39 25 persons recorded. In their statements all the accused have stated that they are innocent and they were falsely implicated in this case.
Accused Qamar Ahmed @ Sahil has stated that he was falsely implicated in this case at the instance of Yashpal. He was aware about the quarrels which had started taking place between Yashpal and deceased Gyanender over their financial matter and with regard to using Rashmi for their evil designs. He further stated that nothing was recovered from his possession or at his instance.
Accused Rashmi has stated that she was falsely implicated in this case at the instance of Yashpal. Deceased Gyanender and Yashpal were misusing her for extorting money from people. Subsequently, Yashpal started compelling her to work for him only, upon which quarrel started taking place between Yashpal and Gyanender. It was Yashpal who wanted to get rid off Gyanender. Nothing was recovered from her possession or at her instance.
Accused Nawab Khan has stated that he has been running a shop of scooter mechanic in Old Seema Puri as a tenant. Udaibir was his landlord and is a police informer. He wanted to get the shop evicted from him by hook or crook. Yashpal was known to Udaibir and used to visit him. He was falsely implicated in this case by Yashpal at the instance of Udaibir.
Sessions Case No. 86/2008 Page 25/39 26
Accused have examined one Naveen Ramani, L.D.C. Record Room Sessions, Patiala House Court, Delhi. He has brought the record of case FIR No. 619/04 Police Station Kalkaji titled as StateVs.Yashpal etc. U/ss 341/366/384/511/109/120B/506/34/376(2) (G) IPC. The charge sheet in this case was filed against Gyanender S/o Sh. Vishram Singh, Yashpal s/o Phool Singh and other three persons.
I have heard Sh. Mukul Kumar Ld. Addl. P.P.for the State, Sh. P.L. Behl Ld. Counsel for accused Sahil and Nawab Khan and Sh.Gaurav Seth Ld. Counsel for accused Rashmi @ Mehak. I have also gone through the file and the written submissions filed on behalf of accused Rashmi.
It was submitted on behalf of the State that the prosecution case stands proved from the statements of witnesses. It was submitted that all the prosecution witnesses have supported the prosecution case.
It was submitted on behalf of the State that the deceased Gyanender got married to accused Rashmi and thereafter a quarrel had taken place between the deceased and accused Rashmi. Hence, the deceased Gyanender had severed relations with her. It was further submitted that thereafter accused Rashmi and Sahil Sessions Case No. 86/2008 Page 26/39 27 started living as husband and wife in Dilshad Garden and both of them threatened Gyanender to kill in case he interfered in their life. It was further submitted by Ld. Addl. P.P. that the accused Rashmi telephoned Vishram Singh father of deceased Gyanender that he should make Gyanender understand, otherwise he (Gyanender) would have to repent for whole life. It was further the submission of Ld. Addl. P.P. that the deceased Gyanender met the accused persons at PVR Saket and he was abducted by the accused persons from there. It was further submitted that all the accused persons hatched a conspiracy to kill Gyanender and thereafter the accused persons committed the murder of Gyanender.
It was submitted on behalf of the State that after committing the murder of Gyaneder, the accused persons threw away the dead body of the deceased near Village Phulwari, District Faridabad.
It was further submitted on behalf of the State that the deceased was last seen with the accused persons. It was submitted that the deceased Gyanender was seen in the company of the accused persons at PVR Saket by Avneet Thapar when he went to see movie in PVR Saket on 1.8.2005 at about 10.30 p.m. It was submitted that PW Yashpal had also conversation Sessions Case No. 86/2008 Page 27/39 28 with deceased Gyanender on telephone on 1.8.2005 at about 88.30 p.m. and the deceased Gyanender told him to come within half an hour. It was further submitted that PW Yashpal had also again conversation on telephone and then Gyanender told him that he was unable to come to him as he ( Gyanender) was going to PVR Saket as Rashmi and Sahil were calling him there.
It was submitted on behalf of the State that a gold chain of the deceased Gyanender was recovered from the house of accused Rashmi at her instance. It was submitted that a Maruti Zen car bearing No. DL3CL1012 which was used by the accused persons for throwing the dead body of Gyanender was also recovered from outside the flat of Rashmi at her instance.
It was further submitted on behalf of the State that a wrist watch of the deceased Gyanender was recovered from the house of accused Nawab Khan at his instance. It was further submitted that Accused Sahil @ Qamar Ahmad got recovered a mobile phone make Nokia of deceased Gyanender, from his house house.
It was submitted on behalf of the State that accused persons pointed out the place i.e. the service road which leads to Village Phulwari, which was at a distance of 200 yards from the Sessions Case No. 86/2008 Page 28/39 29 Main G.T. Road near Palwal, Haryana where the accused persons had thrown away the dead body after committing murder of the deceased Gyanender.
It was submitted on behalf of the State that from the statements of witnesses, it is proved that chain of the circumstances is complete and prosecution case states proved.
On the other hand it was submitted by Ld. Counsels for the accused persons that the accused have been falsely implicated. It was submitted that as per the prosecution PW1 Avneet Thapar is a witness of alleged last seen and he has not supported the case prosecution in this regard. It was further submitted that as per version of prosecution the deceased Gyanender went missing on 1.8.2005 and missing report was lodged on 4.8.2005 by Vishram Singh at Police Station Seema Puri. No explanation has come on record as to why the missing report was lodged after the delay of 34 days.
It was submitted by the Ld. Defence Counsels that the prosecution has failed to prove the last seen theory. It was submitted that the alleged recoveries have been planted upon the accused persons. It was submitted by Ld. Counsels for the accused persons that there are material contradictions in the statements of witnesses Sessions Case No. 86/2008 Page 29/39 30 and statements of witnesses cannot be relied upon.
In this case prosecution has examined as many as 17 witnesses. The scrutiny of the prosecution evidence reveals that in the present case there is no direct evidence and prosecution case rests upon circumstantial evidence.
The Hon'ble Supreme court in a case titled as State of Goa Vs. Sanjay Thakran and Anr 2007 (2) Crimes 294 (SC), held that, it is well settled proposition of law that when a prosecution case rests upon the circumstantial evidence, such evidence must satisfy following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firstly established.
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(iii) the circumstances, 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
(iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any Sessions Case No. 86/2008 Page 30/39 31 other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
In a case reported as '' 2010 (3) JCC2361 Naveen Chauhan @ Chussi Vs. State'' the Hon'ble Delhi High Court has observed that in a case based purely on circumstantial evidence the prosecution needs to establish all the circumstances cogently and firmly to the full satisfaction of the court before they can be acted upon. The circumstances proved by the prosecution ought to be wholly incompatible with the innocence of the accused and must necessarily and unerringly point towards him as perpetrator of the crime. The courts need to be satisfied that in all probability it was the accused and no one else who had committed the crime for which he was charged.
In a case reported as '' 2010 (3) JCC1648 Musheer Khan @ Badshah Khan & Anr Vs. State of Madhya Pradesh'' the Hon'ble Supreme Court observed that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. The Hon'ble Supreme Court further held that when a murder Sessions Case No. 86/2008 Page 31/39 32 charge is to be proved solely on circumstantial evidence, presumption of innocence of accused must have a dominant role.
In a case reported as '' 2006 (1) JCC318 State through CBI Vs. Gurpal Singh'' the Hon'ble Delhi High Court observed that in case of circumstantial evidence chain of circumstances should be unbroken. Circumstances proved must be consistent only with guilt of accused and same must be totally inconsistent with innocent of accused. Where major links between alleged offence and accused are entirely nonexistent, conviction on such evidence would not be sustainable.
In a case reported as State of U.P Vs. Ashok Kumar Srivstava (1992 Crl.L.J.1104 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
The circumstantial evidence upon which the prosecution case is based is as under :
i.) Last seen evidence. Sessions Case No. 86/2008 Page 32/39 33 ii ) Motive. iii) Phone Call details iv) Recovery of articles.
v) Pointing out of the place by the accused persons from where the dead body was recovered.
Last seen evidence :
As per the prosecution case PW1 Avneet Thapar was a witness of the last seen. As per the prosecution story, he had seen the deceased Gyanender lastly with the accused persons at PVR Saket when he had gone to see a movie on 1.8.2005 at 10.30 p.m. The perusal of the statement of PW1 Avneet Thapar shows that he did not support the case of the prosecution. This witness was cross examined by Ld. Addl. P.P. for the State but even in his cross examination nothing could come out which could help the prosecution case. He denied the suggestion of Ld. Addl. P.P. for the State that he had stated to the police that on 1.8.05 at about 10.30 P.M. he had gone to see a movie in P.V.R. Saket and he had seen Gyanender in the company of accused persons. He also denied the suggestion of Ld. Addl. P.P. for the State that he had seen deceased Gyanender in the company of accused persons on 1.8.2005.
Therefore, in my considered opinion, the prosecution Sessions Case No. 86/2008 Page 33/39 34 has failed to prove the last seen theory.
Motive :
As per the version of PW2 Vishram Singh on 31.7.2005 at about 11.00 a.m. in the morning, Rashmi had given a threat to him with regard to make understand Gyanender otherwise, he would face serious consequences. Accused Rashmi also told him that she was fed up with Gyanender Singh and she would take some step against him. It was submitted by Ld. Addl. P.P. for the State that earlier Gyanender and accused Rashmi were living as husband and wife, but some dispute arose between them and Gyanender severed his relations with Rashmi. Thereafter Gyanender married one girl namely Chitra. It was submitted that accused Rashmi was annoyed with deceased Gyanender and wanted to take revenge from Gyanender. It was contended that on this account accused Rashmi along with her coaccused murdered the deceased.
It is also important to note that on 31.7.2005 when accused Rashmi told the father of the deceased Gyanender that she was fed up with Gyanender and she had given threat to his father with regard to make Gyanender understand, otherwise he would face serious consequences, then why they have not reported the matter to the police. It is also important to note that Vishram the father of Sessions Case No. 86/2008 Page 34/39 35 deceased was a police officer and he was well aware regarding the procedure. It is also important to note that the missing report was lodged after a delay. No complaint was ever made by deceased Gyanender or by his father regarding the threats given by accused Rashmi. Therefore, under these circumstances, in my opinion, the prosecution has failed to prove the motive on the part of accused Rashmi for killing Gyanender.
Phone call details :
As per the prosecution story, PW3 Yashpal had contacted deceased Gyanender on 01.8.2005 on phone and Gyanender told him that he was going to PVR Saket Rashmi and Sahil were calling him.
The perusal of the testimony of PW3 Yashpal shows that he has stated in his statement that he had a conversation with accused Rashmi. He asked Rashmi about the whereabouts of Gyanender. Accused Rashmi told him that she was in Dehradun and showed her inability to tell about Gyanender. He further stated that father of Gyanender told him on phone itself that on 31.7.2005 at about 11.00 a.m. in the morning, Rashmi had given a threat to him with regard to make understand Gyanender otherwise, he would face serious consequences. In his cross examination, he has stated that he Sessions Case No. 86/2008 Page 35/39 36 told the police that on 3.8.2005 he made a call on the cell phone of Gyanender but the same was switched off.
The prosecution has not been able to prove as to who was the user of mobile phones regarding which call details have been produced. There is nothing on record to show that the said mobile phones were being used by the accused persons. The Investigating Officer collected the phone call detail but the same has not been proved in accordance with law as laid down by the Hon'ble Delhi High Court in the case of Mohd. Afzal Vs. State 2003 VII AD(Delhi)1.
Recovery of Articles :
It was submitted by Ld. Addl. P.P. that a gold chain of the deceased Gyanender was recovered from the house of accused Rashmi at her instance. It was submitted that a Maruti Zen car bearing No. DL3CL1012 which was used by the accused persons for throwing the dead body of Gyanender was recovered from outside the house of accused Rashmi at her instance. It was further submitted that a wrist watch of the deceased Gyanender was recovered from the house of accused Nawab Khan at his instance. It was further submitted that Accused Sahil @ Qamar Ahmed got recovered a mobile phone make Nokia of deceased Gyanender from Sessions Case No. 86/2008 Page 36/39 37 his house.
As regards the recoveries of the articles are concerned, in my view, no accused would keep such type of evidence with him if he is involved in any crime. In my view the accused persons had ample time to dispose off the articles of the deceased.
The Hon'ble Delhi High Court in a case reported as 2011 (3) JCC1814 (Delhi) has held that recoveries of articles does not prove the guilt of the accused.
Pointing out of the place by the accused persons from where the dead body was recovered :
It was contended by Ld. Addl. P.P. for the State that accused persons pointed out the place where the dead body of deceased Gyanender was thrown by them after committing his murder. On the other hand, it was contended by Ld. Counsels for the accused persons that the accused persons never pointed out any such place as alleged by the prosecution.
The perusal of the file reveals that prosecution has examined PW8 Rishi, PW9 Bir Singh and PW10 Surender Singh and they informed the Police Station Sardar Palwal regarding a dead body which was lying near the bushes on the left side of the road leading to their Village. It is important to note that they have Sessions Case No. 86/2008 Page 37/39 38 admitted in their cross examination that police officials of Delhi Police were also present and they made inquires regarding the dead body. Therefore, it is clear that prior to the arrest of the accused persons the police officials of Delhi Police were having knowledge about the place where the dead body was lying. Therefore, in my view, the story of the prosecution that the accused have pointed out the place where the dead body was thrown by them is without any merit as the Delhi Police had already seen the said place. The Delhi Police was already aware of the place from where the dead body was recovered, even before the arrest of the accused. Hence, under these circumstances,the pointing out of the place after making the disclosure by the accused persons is of no help. It is not a discovery of a fact rather it is a rediscovery of the fact.
It was held by Hon'ble Delhi High Court in a case titled as Raj Mani Vs. State 1997(2) C.C.Cases 101 (HC) that " Discovery of a fact known to the police is inadmissible."
Therefore, in view of the judgment referred above the pointing out of the place by the accused persons from where the dead body was recovered, is of no help to the prosecution case.
In view of the above discussion and case law discussed above, I am of the considered view that prosecution has failed to Sessions Case No. 86/2008 Page 38/39 39 prove its case against the accused persons as the chain of circumstantial evidence is not complete. Accordingly, all the accused persons are acquitted for the offences charged with.
The bail bonds of all accused persons are cancelled. Their sureties are charged. The file be consigned to Record Room. Announced in Open Court on 16th September 2011 (Surinder Kumar Sharma ) Addl. Sessions Judge/North East KKD, Delhi.
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