State vs . Ram Tej on 2 May, 2018

[Cites 41, Cited by 0]

Delhi District Court

State vs . Ram Tej on 2 May, 2018

           IN THE COURT OF MS. ANU GROVER BALIGA
      ADDITIONAL SESSIONS JUDGE : SPL. FAST TRACK COURT
               PATIALA HOUSE COURT : NEW DELHI

                                                                                              SC No. 8429/2016 
                                                                                               FIR No. 30/2015 
                                                                                            PS Vasant Kunj (S)
                                                                                U/s.  302/201/376A/392/411 IPC

State                 Vs.         Ram Tej
                                  S/o Sh. Ram Adhar
                                  R/o Vill. Duniya Ka Purva
                                  PS Jagdish Pur Tehsil Musafir Khana
                                  Distt. Sultanpur
                                  U.P. 
           Also At:               Kusum Nursery, Mahipal Pur,
                                  Mehrauli Road, near Chhattar Pur Metro Station
                                  New Delhi. 

Date of Institution                                                 -          09.04.2015 
Date of Committal                                                   -          29.04.2015
Arguments heard/Order reserved                                      -          31.03.2018
Date of judgment                                                    -          02.05.2018
Final order                                                         -          Convicted u/s  376A, 302 and 
                                                                               404 IPC.    


                                                        JUDGEMENT

1. The accused in the present case has faced trial on the allegations that on SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 1 of 90 the intervening night of 0910.01.2015 at Old Nursery, near Petrol Pump, Metro Pillar No.41, MG Road, Ghitorni, New Delhi, he committed the murder of a lady ''AG" W/o ''BDG" (the name of the deceased lady is not being mentioned to protect her identity) after forcibly committing rape upon her and that he also caused certain evidence, connected with the said murder, to disappear and also dishonestly retained the mobile phone, some jewelery and cash that the deceased lady was in possession of, on the said date.

2. Briefly stated the chronology of events leading to the arrest of the accused as described in the charge sheet (including the supplementary charge sheet) is as follows:

(a) On 10.01.2015, at about 8:35 a.m. an information was received at PS Vasant Kunj that the dead body of a female has been found lying in Old Nursery on DDA land, near Petrol Pump, Metro Pillar No.41, MG Road, Ghitorni. DD no. 8A was lodged in this respect and ASI Matwar Singh and Ct. Ranjan immediately left for the spot and in the meantime, on being informed about the said DD, Inspector Mahender Singh Dahiya, SHO PS Vasant Kunj alongwith L/Ct. Neeta also reached the spot.

(b) On reaching the spot, they found the dead body of a female aged about 33 years lying in semi naked condition. The dead body was found wearing green coloured shirt, white and pink coloured pullover, printed black coloured SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 2 of 90 socks on its feet. It was also noticed that wooden pieces had been inserted in her private parts and her neck and legs had been tied with a red coloured cloth and a grey coloured pyjami respectively. One tiffin box of red and black colour, orange and black coloured shawls, brown coloured ladies shoes and yellow coloured polythene were also found lying near the head of the dead body.

(c) Inquiries were made from the residents of nearby locality and Police Stations and it was found that one missing report of a lady, who had not returned to her home since 09.01.2015, was registered with PS Fatehpuri Beri vide DD No.12B dated 10.01.2015 and from said DD, the name of the husband of the lady was obtained and he was then called to the spot and after reaching the spot, he identified the dead body to be that of his wife.

(d) Based on the recovery and identification of the dead body, Inspector Mahender Singh then prepared rukka under section 302 IPC and got registered the FIR through Ct. Ranjan and marked the investigation to himself. During initial investigation, he also prepared the site plan of the spot and called the CFSL, CBI, Lodhi Road and South District Mobile Crime Teams at the spot and got inspected and photographed the body and the spot.

The CFSL team collected swabs of blood, blood stained leaves, control leaves, piece of wood and other samples from the spot and the said samples were then converted into a pullanda and sealed with seal of MSD. The SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 3 of 90 articles found near the dead body were also separately sealed and taken into possession.

(e) The dead body was then sent to AIIMS hospital for postmortem and the doctor after postmortem handed over seventeen sealed pullandas and nine sample seals to Constable Satya Prakash who further handed over the same to Inspector Dahiya.

(f) The statement of the husband of the deceased was then recorded and he interalia narrated therein that the deceased lady had left her house for work on 09.01.2015 and that when she had left, she had in her possession a mobile having no. 7836944656 and was also wearing a Mangalsutra in her neck and Pajeb on her ankles and further that she was also to receive her salary on the said day and all the said articles namely the phone, the jewelery and the cash were missing from her dead body. On the basis of the said statement and examination of other attendant circumstances, the provisions of section 376A, 377, 392 of IPC were added to the FIR.

(g) During further investigation, the call detail records of the mobile of the deceased were collected from the concerned Nodal Officer and the said record revealed that from one mobile connection no. 9711476409, calls had been received on the mobile of the deceased, almost on a daily basis. The details of the owner of the said mobile, on investigation, was found to be that of one SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 4 of 90 Ram Dheeraj, R/o C18/1, Village Sultanpur.

(h) On reaching the aforementioned address, it was revealed that the said mobile connection was being used by the brother of Ram Dheeraj, namely the accused and that he works as a Maali / Gardener at Kusum Nursery, Andheriya Mor. The Police team immediately then reached the said nursery and apprehended the accused his conduct was found to be suspect and he during interrogation confessed to have raped and murdered the lady. In his disclosure he interalia narrated that he resides in the nursery itself and goes to his brother Ram Dheeraj to take meals and further that he knew the deceased lady who was residing in a tenanted premises near the house of his brother. He further disclosed that since the deceased lady and her husband had frequent quarrels, he had expressed sympathy towards the lady and had gained her trust and friendship and had eventually established physical relations with her. He further confessed that since a few days, the deceased lady had started avoiding him and had wanted to discontinue her relationship with him and that he did not like this fact at all and he had started hating the lady. According to the disclosure given by him, on 06.01.2015, at about 9:30 p.m., after the duty of the deceased lady had got over at her factory at SEAMS Export, Sultanpur, he had met her and had picked her up on his motorcycle and had taken her to Purani Nursery, DDA and had tried to lovingly convince her but she did not agree to continue her relations with him. He further narrated that though he got very angry he did not say SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 5 of 90 anything to her on the said day but on 09.01.2015 called the deceased lady in the afternoon and waited for her outside her factory and on meeting her, convinced her to accompany him to DDA Nursery again and there he forcibly committed rape upon her and when the deceased lady threatened him that she would complain to the Police, he throttled her neck with the red pyjami that she was wearing and to make disappear the evidence of rape, inserted wooden sticks (kachi lakri) into her private parts and then fled away from the spot after taking her Mangalsutra, mobile phone, Pajeb and the cash that she was carrying and hid the said articles in his room in the nursery and parked the motorcycle of his brother at his house.

(i) Based on the aforementioned disclosure of the accused, he was arrested and on his personal search, a mobile phone Micromax X 243, attendance card of the deceased lady and her 14 passport size photographs were recovered from the jacket that he was wearing. Further, at his pointing out, motorcycle No. UP16C7537 Hero Honda Splendor was taken into possession from outside the house of his brother Ram Dheeraj and the Mangalsutra, Pajeb, mobile phone of the deceased alongwith cash of Rs.6,609/ in an envelope were recovered from his room in the nursery. All the said articles were then sealed in a pullanda and taken into possession. On the disclosure of the accused, the clothes worn by him on the date of the incident were also taken into possession from the said room and thereafter he was also taken to Old Nursery on DDA land where he pointed out the exact place where he had SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 6 of 90 raped and murdered the deceased lady. After the aforementioned recoveries, the accused was taken to Safdarjung Hospital for his medical examination on 11.01.2015 and on 12.01.2015, he was again taken to the hospital for getting his potency test conducted.

3. After the aforementioned medical examination of the accused, as per the contents of the chargesheet and record, he was produced before the court of concerned Ld. MM on 12.01.2015 and an application for getting his Test Identification Proceedings (TIP) was filed which was fixed for 14.01.2015 (Apparently, during investigation, one public witness Ram Chela Jha had informed the Police that he had seen the deceased riding pillion on a motorcycle on the night of the incident and he could identify the driver of the motorcycle). On this date, however, the accused refused to participate for the TIP proceedings and thereafter on 15.01.2015 three days custody of the accused was asked for by the investigating officer, for the recovery of the purse and one ear ring of the deceased lady and after the said custody was granted by the concerned Ld. MM, on 16.01.2015, accused was again taken to the DDA Old Nursery near Petrol Pump, Ghitorni where coincidently the witness Ram Chela Jha was also present and he informed the Police that he had, on 09.01.2015 at about 9:30 pm, seen the accused only with the deceased lady riding on a motorcycle near M.G. Road. The statement of the said witness was recorded and thereafter accused was again produced before the Ld. Metropolitan Magistrate and got remanded to JC.

SC No. 8429/2016 FIR No.30/15

State Vs. Ram Tej P.S. Vasant Kunj (S) 7 of 90

4. During further investigation the Test Identification Proceedings of the articles that were recovered from the room of the accused at the nursery where he was working, was got conducted and the articles of the deceased lady were correctly identified by her husband.

5. During further investigation, the postmortem report of the deceased was received from AIIMS hospital and in the said report the cause of death was opined to be ''combined effect of ligature strangulation shock due to visceral injuries and blood loss''.

6. After completing the remaining investigation including the recording of statement of witnesses, collecting of mobile detail records of the mobile of the accused, collecting the salary records of the deceased from her office and collecting the registration records of the motorcycle used by the accused in the incident, the chargesheet was finally filed before the concerned court of Ld. Metropolitan Magistrate on 09.04.2015.

Charge:

7. After the committal of the case and based on the material on record, Ld. Predecessor of this court had framed charges against the accused for having committed the offences punishable under Section 376A, 392, 411 and 201 of IPC against the accused.

SC No. 8429/2016 FIR No.30/15

State Vs. Ram Tej                                    P.S. Vasant Kunj (S)                                                8  of  90
            Prosecution Evidence:

8. In support of its case the prosecution has examined 42 witnesses in all (inadvertently, two witnesses namely Insp. Ugesh and Sh. Israr Babu, Nodal Officer have been given the same number PW30).

9. The witnesses examined by the prosecution to substantiate their case can be broadly categorized in three categories.

10. The First Category of witnesses includes the experts from CFSL and doctors of the hospital. The experts/doctors who have been examined and their depositions in brief are as follows:

(i) PW1 Dr. B.K. Mohapatra, SSOI, Biology, CFSL, Lodhi Road, New Delhi, has interalia deposed that on 10.01.2015, he alongwith Sh. P.K. Gautam, SSOI (Photo and Scientific Aid Division) had visited and inspected the scene of crime i.e. DDA Nursery, behind Chhattarpur Metro Station, New Delhi and had collected the relevant/concerned exhibits and had handed over the same to the Investigating Officer. He has further deposed that on 03.02.2015, 28 sealed parcels with sample seals were received with respect to the present case at FSL and that after tallying all the seals, he had opened the said parcels / exhibits and had examined the same and thereafter had given his SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 9 of 90 detailed reports Ex.PW1/B and SPW1/A respectively.

(ii) PW2 Sh. P.K. Gautam, SSOI, Photo and Scientific Aid Division, CFSL, Lodhi Road, New Delhi, has interalia deposed that he alongwith Dr. B.K. Mohapatra had visited the spot and had taken 30 photographs of the scene of crime and he has proved the 16 photographs, available on judicial record, as Ex.P1 to Ex.P16.

(iii) PW5 Dr. Abhishek Yadav, Assistant Professor, Department of Forensic Medicine, AIIMS Hospital, New Delhi and PW7 Dr. Mantaran Singh Bakshi, Junior Resident, Forensic Medicine, AIIMS Hospital, New Delhi are the members of the medical board that was constituted to conduct the postmortem of the deceased lady. Both these doctors have interalia deposed that both of them alongwith one Dr. Asit Kumar Sikary had conducted the postmortem of the deceased prosecutrix and thereafter had prepared a detailed postmortem report opining therein that the cause of death to be ''combined effect of ligature strangulation shock due to visceral injuries and blood loss''. The postmortem report prepared by the said doctors has been exhibited as Ex.PW5/C.

(iv) PW6 - Sh. Rajbir Singh, Medical Record Technician, AIIMS Hospital, New Delhi has identified the signatures of Dr. Debashish Hota and Dr. Neeraj SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 10 of 90 Sharma on the MLC of the accused and the deceased respectively and as per deposition of this witness, both have left the services of their hospital and their present whereabouts are not found and further that he had worked with both of them and had seen them writing and signing. Based on his deposition, the MLC of the deceased lady has been exhibited as Ex.PW6/A and MLC of the accused has been exhibited as Ex.PW6/B.

(v) PW31 Dr. Mahesh Kumar, Senior Resident, AIIMS, New Delhi has identified the signatures of Dr. Kartik on Potency Test Report and MLC of the accused and as per deposition of this witness, Dr. Kartik has left the services of their hospital and his present whereabouts are not found and further that he had worked with him and had seen him writing and signing. Based on his deposition, the aforementioned MLC of the accused has been exhibited as Ex.PW5/D and potency test report of the accused has been exhibited as Ex.PW5/E.

(vi) PW34 Sh. Jitender Kumar, Sr. Scientific Officer (Chemistry), FSL, Rohini, New Delhi, has interalia deposed that he had examined the viscera of the deceased lady and as per his deposition, the report prepared by him, wherein it was interalia opined that no tranquilizers, poison or pesticides were detected in the viscera, has been exhibited as Ex.PW34/A. SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 11 of 90

(vii) PW41 Dr. Rajender Singh, Rtd. Director CFSL, CBI New Delhi, has interalia deposed that he had examined some dry leaves, pieces of wood and broken pieces of bangles that were sent to him in three parcels for examination (Admittedly, these were collected from the spot where the dead body was discovered). The report of this witness has been exhibited as Ex.PW41/A.

11. The Second category of witnesses includes the public witnesses examined by the prosecution. The public witnesses who have been examined and their depositions in brief are as follows:

(i) PW3 - Sh. Ramchela Jha, S/o Sh. Suresh Jha, R/o B36, Brijwasi Colony, Sultanpur, MG Road, Delhi, has interalia deposed that he has been working as a Field Officer at Dev Bridge Security, Sultanpur for the last 78 years and on 09.01.2015, at about 9.30 p.m., while he was passing by the Sultanpur Main Market, he saw that the deceased lady was riding pillion on a motorcycle and that the motorcycle driver was wearing a black coloured jacket. He has further deposed that on 10.01.2015, he was called at PS Fatehpur Beri by the Police and that on 16.01.2015 while he was passing by M.G. Road, he saw that some police officials were walking towards DDA Old Nursery and that when he himself reached DDA Land, Old Nursery, he saw the accused in the custody of the police officials and after seeing the accused, SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 12 of 90 he told the police officials that he is the same person whom he had seen on 09.01.2015 on the motorcycle alongwith the deceased lady.

(ii) PW4 Sh. Jai Kishan, S/o Sh. Chhote Lal, R/o H.No. 76/9, Village Kishengarh, New Delhi, has interalia deposed that on 10.01.2015, at about 8.00 a.m. while he was wandering in the Nursery, he had seen the dead body of a lady whose neck and legs were tied with a cloth and that he had thereafter immediately made a call to the Police.

(iii) PW8 is the husband of the prosecutrix and he has interalia deposed that on 27.03.2014, he had met with a road accident, as a result of which, he had sustained injuries in his left leg and thereafter was unable to walk or do any work. According to his deposition, he was married to the deceased lady about 18 years ago and that they have three daughters who were all studying in school at the time of the incident and that the deceased was working in a garments factory and that she used to leave the house every day at 9.30 a.m and come home by 9.30 p.m. 10.30 p.m. and that she used to earn Rs.8,500/ p.m. This witness has further narrated that on 09.01.2015, his wife had left for work as usual - he has described the clothes that she was wearing and has also narrated that on the said day, his wife had informed him that she will be receiving her salary and that, therefore, she will bring ration on her way back from the office. According to this witness, when his wife did not return home till around 10.30 p.m and his daughter started worrying about her, at about 11 SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 13 of 90 p.m, he made a call on the mobile that his wife was using but that she did not answer. He has further narrated that thereafter he thought that his wife might still be working as earlier on one or two occasions she had come back home only by 11.15 p.m and therefore he went back to his room and slept for a while and then again at 11.30 p.m when his wife did not return, he requested a neighbour to take him to the factory where his wife worked and that on reaching the factory, they found that there was nobody present and so he finally made a call at 100 number. According to this witness, pursuant to his call, some police officials came and told him to go back home and provide them with the photograph of his wife, the next morning. This witness thereafter has gone to describe as to how the next day he was informed in the morning about the death of his wife and how he had gone to identify the dead body. As per this witness, during the investigation of this case, he had been called to identify the articles belonging to his wife and that he had identified in the Test Identification Proceedings, the mobile phone, pajeb and mangalsutra of his wife. This witness has also deposed about how he and his wife knew the accused - according to him, the elder brother of the accused one Ram Dheeraj was his acquaintance and that he had known him for the last 1012 years and that Ram Dheeraj was residing in their locality only. This witness has categorically deposed that the accused used to often come to their house and that on 01.01.2015 also, he had spent about 34 hours at his house and that his children used to call him Chacha.

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State Vs. Ram Tej P.S. Vasant Kunj (S) 14 of 90

(iv) PW9 Sh. Brijesh Mishra, S/o Sh. Ram Bahadur Mishra, R/o B134, Ambedkar Colony, Chhattarpur, New Delhi, a relative of the deceased lady, has merely deposed that he alongwith the husband of the deceased lady had identified the dead body of the deceased at the mortuary of AIIMS hospital.

(v) PW12 Sh. Ravind Sachdev, S/o Sh. Jasbir Sachdev, R/o H.No.A166, Sushant Lok, Phase I, Gurgaon, Haryana, has interalia deposed that he is running a garments export factory at premises No.10, Sultanpur Chopal, New Delhi and that the deceased prosecutrix was one of his employees and that she used to do the stitching work in his factory. As per this witness, on 09.01.2015, he had paid salary to all his employees including the deceased prosecutrix. As per his deposition, he had handed over one envelope containing Rs.6,609/ as salary to the deceased and on the said envelope had himself written the name of the prosecutrix. He has categorically deposed that the deceased had left his factory at about 9.30 p.m on 09.01.2015 after receiving her salary. He has placed on record the voucher book that was maintained in his factory in the usual course of his business and as per his statement, page no.16 of the said voucher book pertained to the salary paid to the deceased prosecutrix. The voucher book in question has been exhibited as Ex.PW12/B and the relevant page has been exhibited as Ex.PW12/C.

(vi) PW21 Tarsem Pal Singh S/o Sh. Sardar Amarjeet Singh R/o 142, Sultanpur Ext., Mehrauli Gurgaon Road, New Delhi, has interalia deposed SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 15 of 90 that he runs a PCO shop at Sultanpur, New Delhi and that he also used to sell mobile phones and on being shown the bill dated 07.10.2013, this witness has identified that vide the said bill, he had sold a mobile phone make Micromax X 243 to one Ram Dheeraj.

(vii) PW22 Neeraj Ahuja, S/o Sh. S.C. Ahuja, Daisy 305, Omex Green Valley, Green Field Colony, Sector 4142, Faridabad, has interalia deposed that in the year 200708, he was residing in a rented premises at Sultanpur and that in the year 2008, he had sold his motorcycle bearing no. UP16C7537 to one Ram Dheeraj for Rs.15,000/. This witness was shown the motorcycle that was seized during investigation from the house of the brother of the accused and he identified the said motorcycle as the same that he had sold to the brother of the accused.

(viii) PW23 Ram Dheeraj, S/o Sh. Ram Aadhar, R/o Khasra No.610, Sultanpur, New Delhi, is the brother of the accused and he has interalia deposed that he is a permanent resident of Village Duniya Ka Purva, District Sultanpur, U.P and that he has been residing in Delhi for the last 1520 years and that he has four brothers and the accused is his youngest brother who was working as a Maali in Kusum Nursery, Andheria Mor, New Delhi. According to this witness, he did not own any Hero Honda Splendor motorcycle which is shown to have been recovered from his house.

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State Vs. Ram Tej                                    P.S. Vasant Kunj (S)                                                16  of  90
 (ix)         PW27  Sh.   Sohan   Lal,   S/o   Sh.   Ram   Prasad,   R/o   C20,   Sultanpur

Colony, New Delhi, has interalia deposed that he runs the Kusum Nursery at Mahipal Pur, Andheria Mor and the accused is the son of his Sadu and that he had worked at his nursery from November 2014 to January 2015. He has also interalia deposed that the accused was residing in a room of the nursery which was in the rear portion of the nursery and that he used to pay him a salary of Rs.7,000/ p.m.

12. The Third category of witnesses includes the Ld. Magistrates/Nodal Officers examined by the prosecution. The Ld. Magistrates and Nodal Officers who have been examined and their depositions in brief are as follows:

(i) PW39 Sh.Akash Jain, now Secretary DLSA, Shahdara District, Karkardooma Courts, Delhi and PW40 Sh. Sujit Saurabh, MM04, Patiala House Courts, New Delhi are the Ld. Magistrates who as per the record, had conducted the Test Identification Proceedings of the accused and that of the articles belonging to the deceased lady respectively. As per their deposition, the proceedings conducted by them have been exhibited as Ex.PW39/A and Ex.PW8/B respectively.

(ii) PW28 Sh. Pawan Singh, Nodal Officer, IDEA Cellular Ltd, A26/5, SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 17 of 90 Mohan Cooperative, Mathura Road, New Delhi has placed on record the records of mobile connection no.7836944656. As per the record produced by him, the Customer Application Form of mobile connection no.7836944656 has been proved as Ex.PW28/A and as per the same, the said mobile connection was in the name of the husband of the prosecutrix. The call details record of the said mobile has also been proved on record by this witness and has been given Ex.PW28/C.

(iii) PW30 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd, C45, Okhla PhaseII, New Delhi has placed on record the records of mobile connection no.9711476409. As per the record produced by him, the Customer Application Form of mobile connection no.9711476409 has been proved as Ex.PW30/A and as per the same, the said mobile connection was in the name of Ram Dheeraj. The call details record of the said mobile has also been proved on record by this witness and have been given Ex.PW30/B.

13. The Fourth Category of witnesses examined by the prosecution includes the main investigating officer PW38 Insp. Mahender Singh Dahiya and the other police officials ( namely PW10, PW11, PW13, PW14, PW 15, PW16, PW17, PW18, PW19, PW20, PW24, PW25, PW26, PW27, PW30, PW32, PW33, PW35, PW36 and PW37) who all assisted him SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 18 of 90 during the investigation. The main investigating officer PW38 Insp.Mahender Singh Dahiya and the other police officials in their depositions have described in detail the investigation carried out by them. Since the investigation carried out is a part of the chargesheet and has already been narrated in the preceding paragraphs, for the sake of brevity, the depositions of the aforementioned police officials is not being repeated here and will be referred to, later in the judgment as and when necessary.

Statement of accused:

14. After the conclusion of the prosecution evidence, all the incriminating evidence produced by the prosecution was put to the accused by the Ld. Predecessor of this court and the statement of the accused was recorded under section 313 Cr.P.C. In the said statement, the accused has interalia taken a stand that he has been falsely implicated in this case only because he could not pay the amount of Rs.50,000/ which was being demanded by the police to let him off. According to the accused, on the night of the incident, he had remained at the house of his brother Ram Kalap w.e.f 9 p.m to 10.30 p.m. and that during the said period, he had taken dinner alongwith his nephew Rahul, his niece Arti and grandson of his maternal uncle, one Ganesh. The accused has also narrated that he never had any kind of relationship with the prosecutrix but only knew her casually as she had, at one time, resided near the house of his brother Ram Dheeraj. He has also denied that he had ever made any telephone call to the prosecutrix - according to him, the calls being SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 19 of 90 shown by the investigating agency to have been made by him to the prosecutrix were infact made by his sister in law i.e. wife of Ram Dheeraj for it is she who used the mobile that was recovered from his possession to speak to the prosecutrix. As per the statement of the accused, the said phone had required certain repairs and he had given the same for repair at Mehrauli and had collected it from the repair shop only on 09.01.2015 and that is how the mobile was in his possession on the day of his apprehension. The accused has also sought to state that no articles belonging to the prosecutrix were ever recovered at his instance from his room in the nursery and according to him, all the said articles have been planted upon him. He has also narrated that the salary of the prosecutrix which is shown to have been recovered from him, was actually his own salary which he was carrying at the time of his apprehension. The accused has also sought to assert that no medical examination was conducted upon him - as per his version, though he was taken to a hospital, he was brought back without any medical examination as no doctor was found available on the said day.

Defence Evidence:

15. In support of his defence, the accused has examined three witnesses.

(i) DW1 Rahul is the nephew of the accused and he has interalia deposed that on 09.01.2015, the accused had come to their house at about 7.30 - 8 p.m. to take care of him as his father was away. According to the deposition SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 20 of 90 of this witness, the accused stayed alongwith him till about 10.30 - 11 p.m.

(ii) DW2 Murari Lal has interalia narrated that he has been working as a gardener at Kusum Nursery and that he knows the accused as he had also started working in the said nursery 23 months before his arrest in the present case. According to this witness, the accused used to leave the nursery in the evening at about 7.30 p.m to have his dinner at his brother's house and used to return in night at about 1011 p.m. on daily basis. This witness has further deposed that on 09.01.2015, the accused had left the nursery at about 7.15 p.m and had returned in the night at about 10.45 - 11 p.m and that on the said day, he had left the nursery on a cycle and had returned also on the cycle itself.

(iii) DW3 Malkan Singh has interalia deposed that he has been working in the Kusum Nursery since 1997 as its supervisor and that his duty hours were generally from 8.30 a.m to 7 p.m and according to him, the accused had joined the said nursery in November 2014 and that though he used to stay in the nursery itself, he used to take meal at the house of his brother. On a leading question put by the Defence Counsel, this witness has also stated that the Police had visited Kusum Nursery on 11.01.2015 in the morning alongwith the accused.

16. It is relevant to mention herein that though after the conclusion of SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 21 of 90 defence evidence on 12.05.2017, the case was listed for final arguments, subsequently on 01.11.2017, a certified copy of the order dated 17.10.2017 passed by the Hon'ble Delhi High Court was received by this court whereby this court was directed to frame an additional charge against the accused for having committed the offence punishable under section 302 IPC. Pursuant to the said orders of the Hon'ble Delhi High Court, additional charges were framed against the accused for having committed the offence punishable under section 302 IPC, to which he pleaded not guilty. Since the Hon'ble Delhi High Court vide its order dated 17.10.2017 had also made it clear that after framing of additional charge, this court should commence the trial again in accordance with the provisions of section 217 and section 464 (a) (b) of IPC, this court had made it clear to both the Ld. Addl. PP for the State and the Ld.Defence Counsel that they are at liberty to resummon or recall any witness in view of the framing of additional charge. However, on behalf of the prosecution, Ld. Addl. PP for the State had filed an application under section 217 Cr.P.C categorically stating therein that the prosecution does not wish to produce any other witness apart from the witnesses it had already examined namely PW1 to PW41 for according to the prosecution, no additional evidence was required to be brought on record to prove the additional charge and the evidence already recorded was sufficient for the prosecution to prove the additional charge also. On the said date, Ld. Addl. PP for the State had further submitted that recalling of all the witnesses of the prosecution for the purposes of only retendering their evidence will be a SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 22 of 90 wastage of time and in this respect had relied upon a judgment dated 29.05.2011 pronounced by the Hon'ble Allahabad High Court in Criminal Appeal No.5714/2011 in the case titled as ''Smt. Krishna Vs. State of U.P.''. Keeping in view the submissions made by the Ld. Addl. PP for the State and the judicial dicta referred to by him, this court was of the considered opinion that there was no requirement of retendering of the entire prosecution evidence and therefore, the defence was then granted an opportunity to recall any of the prosecution witnesses that it wanted to. In exercise of the said right, the defence chose to recall PW1 Dr. B.K. Mohapatra and PW3 Ram Chela Jha for further crossexamination. Both these witnesses were then recalled and they were tendered for further cross examination to the defence. Since no additional incriminating evidence had been led by the prosecution after framing of additional charge, this court vide order dated 21.12.2017 had observed that no additional statement of the accused was required to be recorded under section 313 Cr.P.C and therefore, the case was thereafter again fixed for final arguments.

Contentions of the Prosecution and the Defence:

17. It is further relevant to mention that at this stage of final arguments, one Ld. Counsel Sh. Madhav Khurana had chosen to appear on behalf of the complainant and had prayed that he be also allowed to advance arguments and to assist the Ld. Prosecutor in this case. Accordingly, this court has heard SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 23 of 90 Ld. Addl. PP Sh. Kamal Akhtar, Ld. Counsel for the complainant Sh. Madhav Khurana and Ld. Defence Counsel Sh. Suresh Sisodia for the accused.

Written submissions have also been filed on record on behalf of the complainant and the accused.

18. According to the Ld. Addl. PP for the State, present is a case where the accused brutally murdered the prosecutrix after committing rape upon her and the motive behind this crime was a failed physical relationship. He has submitted that though present is a case where there was no direct evidence of the gruesome crime committed by the accused, the investigating agency was able to collect enough circumstantial evidence against the accused which has been proved during trial and which conclusively proves that the rape and the murder of the deceased lady was committed by the accused only. It is the contention of Ld. Addl. PP for the State that the facts established on record exclude every possible hypothesis of innocence of the accused. It has been pointed out by Ld. Addl. PP for the State that as narrated in the chargesheet and as proved during trial through the deposition of IO Mahender Singh Dahiya the accused was first picked up as a suspect because it was revealed that he had been in continuous telephonic touch with the prosecutrix not only on the date of her death but also 1 - 1 ½ months prior thereto. According to the Ld. Addl. PP for the State the accused after his apprehension admitted to his guilt and tendered a disclosure statement wherein he interalia narrated that he and the prosecutrix had been in a consensual sexual relationship SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 24 of 90 about 1 - 1 ½ months prior to the present incident and that a few days prior to the incident the prosecutrix had wanted to break her relationship with him, which he did not like at all and that on the night of the incident, he had picked up the prosecutrix from outside her factory and had then taken her to old nursery and had tried to convince her to continue her relationship with him and when she had refused, he had forcibly committed rape upon her and thereafter when she had threatened to report him to the Police, he had murdered her by strangulating her and also by inserting wooden sticks into her private parts.

19. According to the Ld. Prosecutor, though the disclosure statement of the accused is not per se admissible in evidence against him, the recovery of the articles belonging to the prosecutrix from the possession of the accused in pursuance of the aforementioned disclosure statement is admissible and the following material proved on record during trial forms a complete chain of circumstantial evidence, which conclusively proves that it was the accused alone who had committed rape upon the deceased prosecutrix and had thereafter murdered her:  The deposition of PW3 Ram Chela who has interalia deposed that he had seen the accused alongwith the prosecutrix on a motorcycle on 09.01.2015 at 9.30 p.m. this according to the Ld. Addl. PP for the State proves that the deceased lady was last seen alive with the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 25 of 90 accused. It has also been pointed out that a motorcycle was also recovered at the instance of the accused from the house of his brother and that the prosecution has proved that the said motorcycle belonged to the brother of the accused.

 The call detail records of the mobile connections bearing numbers 9711476409 and 7836944656 used by the accused and the prosecutrix respectively which according to the Ld. Addl. PP for the State, prove that the prosecutrix and the accused were in regular touch with each other prior to the date of incident and further prove that on the date of the alleged incident, the location of the mobile of the accused and the deceased prosecutrix was at the same place after at about 9.30 p.m. (During the course of final arguments, Ld.Addl. PP for the State had not pressed the contention with respect to the location of the mobiles being at the same place by fairly conceding that the residence of the accused, the prosecutrix, the workplace of the prosecutrix and the place of the alleged incident were all within a radius of 45 km and therefore the CDRs would show the same location).

 The DNA report proved on record by PW1 Dr. Mohapatra according to the Ld. Prosecutor, this report is, in itself, such a circumstance which proves the guilt of the accused beyond all reasonable doubt. Ld. Addl. PP for the State has pointed out that as per the DNA report Ex.PW1/B, the semen of the accused was found not only on the shawl of the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 26 of 90 prosecutrix, but also on the red panty that was recovered from the vaginal cavity of the deceased at the time of the postmortem. This according to the Ld. Prosecutor proves, beyond all reasonable doubt, that the accused had forcibly raped the prosecutrix on the night of the incident and had thereafter murdered her.

 The recovery of the articles possessed by the prosecutrix on 09.01.2015 recovered from the room of the accused at his pointing out. Ld. Addl. PP for the State has pointed out that as per the deposition of the IO Insp. Mahender Singh Dahiya and Insp. Ugesh Kumar, the accused on 11.01.2015 had led these police officials to his room in Kusum Nursery and had pointed out to a place at the edge of an iron pipe which was affixed to support the roof of the said room and had got recovered from the said place, the mobile phone belonging to the prosecutrix and one polythene containing a white coloured envelope on which the name of the deceased prosecutrix was written in English and was found containing the salary of the deceased amounting to Rs.6,609/. Ld. Addl. PP for the State has pointed out that as per the deposition of these witnesses, from another window of the same room, the accused had also got recovered one polythene from behind a 'gatta type ply' which was found containing one pair of silver pajeb and one mangalsutra which were wrapped in a piece of newspaper. Ld. Addl. PP for the State has further pointed out that all these articles have been proved during trial to be belonging to the deceased prosecutrix only and that SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 27 of 90 therefore this circumstance also conclusively proves that it is the accused who had murdered the prosecutrix and thereafter had taken away her belongings.

20. It is the contention of the Ld. Prosecutor that the aforementioned circumstances established by the prosecution are consistent only with the hypothesis of the guilt of the accused and the chain of evidence produced by the prosecution is so complete that it does not leave any reasonable ground for a conclusion consistent with the innocence of the accused. In support of his contentions, Ld. APP has relied upon the following judgments:

 State Vs. Bharat Singh, Delhi High Court 2014 SCC OnLine Del 2225.

          Dharam Deo Yadav Vs. State of U.P. 2014 (4) SCALE 730. 
           Laxman Naik Vs. State of Orissa AIR 1995 SC 1387.
          Inder Singh and Ors. Vs. State 61 (1996) DLT 566.
          State of Karnataka Vs. Mahabaleshwar Gourya Naik AIR 1992 SC
           2043.

21. On the other hand, Ld. Defence Counsel has contended that none of the circumstances being relied upon by the prosecution have been conclusively proved against the accused. Ld. Counsel Sh. Sisodia has pointed out that PW3 SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 28 of 90 in his crossexamination has categorically admitted that due to fog he had been unable to see the face of the accused and that, therefore, he cannot state at all that he had seen the accused alongwith the prosecutrix on the night of 09.01.2015 at about 9.30 p.m. He has also pointed out that the brother of the accused has categorically stated in his deposition that he was not the owner of any motorcycle and it is the contention of the Ld. Defence Counsel that it stands proved during trial that the IO alongwith the registered owner of the motorcycle in question had fabricated the transfer documents of the said motorcycle to falsely implicate the accused.

22. As regards the call detail records, the contention of the Defence is that the prosecution has utterly failed to prove that it was the accused who was using the mobile no. 9711476409. It has been pointed out that the prosecution has itself brought evidence to show that the said mobile was subscribed in the name of the brother of the accused and not the accused. According to the Ld. Defence Counsel, the mere circumstance that the mobile was recovered from the possession of the accused at the time of his apprehension hardly proves that it was the accused who was using it it has been submitted that the accused had explained in his statement u/s 313 Cr.P.C that on that day, he had collected the mobile phone from a repair shop at Mehrauli and it has also been pointed out that the brother of accused Ram Dheeraj who was produced as a prosecution witness has categorically deposed that it was his wife who used to use the said mobile connection and not the accused.

SC No. 8429/2016 FIR No.30/15

State Vs. Ram Tej P.S. Vasant Kunj (S) 29 of 90

23. Ld. Defence Counsel has also vehemently contended that the DNA report does not conclusively prove the guilt of the accused. According to Ld. Defence Counsel, the shawl of the prosecutrix was in the possession of the IO and that, therefore, the IO had ample opportunity to tamper with the same. It is submitted by the Ld. Defence Counsel that the accused while being in PC was forced to give his semen to the police officials and it is they who planted his semen on the clothes of the prosecutrix to falsely implicate him.

According to the Ld. Defence Counsel, the accused has been falsely implicated in this case only because he was unable to pay Rs.50,000/ to the IO which was the amount being demanded by the IO to let him off. It is the submission of the Ld. Defence Counsel that infact it was one Mohd. Alam who was the supervisor in the factory where the prosecutrix used to work, who is the culprit in the present case and he was let off by the IO only because he and the owner of the factory were able to meet the demands of the IO. Ld. Defence counsel has pointed out that the CDR of the mobile connection of the prosecutrix reveals that it is Mohd. Alam who had last made a call to the prosecutrix on her mobile at about 9.30 p.m on 09.01.2015 and that it is he with whom the prosecutrix was having an affair. It is the submission of Ld.Counsel Sh. Sisodia that the IO in connivance with Mohd. Alam and his employer PW12 falsely implicated the accused by planting the envelope containing the salary of the prosecutrix upon the accused. The submission, therefore, is that none of the circumstances on record are SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 30 of 90 sufficient to hold the accused guilty of the offences with which he has been charged with. In support of his contentions, the Ld. Defence Counsel has relied upon the following judgments:  State Vs. Lakshmidhar Das and Anr. 1999 Cril.J 2839.

 Gamparai Hrudayaraju Vs. State of A P 2009 (13) SCC 740.  Judgment pronounced by the Hon'ble Supreme Court in Criminal Appeal No. 1547 of 2011 titled as State of Karnataka Vs. Chand Basha.

          Pankaj Vs. State of Rajasthan 2016 X AD (SC) 384. 
          Shankarlal Gyarasilal Dixit Vs. State of Maharashtra (1981) 2 SCC
           35.

24. In rebuttal, Ld. Addl. PP for the State and Ld. counsel for the complainant Sh. Madhav Khurana have submitted that the mere fact that the witness PW3 Ram Chela Jha in his crossexamination has admitted that he had not been able to see the accused, is hardly a ground to discard his entire testimony. They have contended that his testimony to the extent that the deceased was riding pillion on a motorcycle remains unscathed and the fact of recovery of a motorcycle from the house of the brother of accused at the instance of the accused shows that it was the accused only who was present alongwith the prosecutrix on the night of 09.01.2015.

SC No. 8429/2016 FIR No.30/15

State Vs. Ram Tej P.S. Vasant Kunj (S) 31 of 90

25. As regards the manipulation of the transfer documents by the IO, it has been submitted by Ld. Addl. PP for the State and Sh. Madhav Khurana that the evidence on record does not show the fabrication of any document but merely shows that the IO had got two documents Ex.PW22/A3 and Ex.PW22/A4 prepared during the investigation and though these could be stated to be an irregularity on the part of the IO, this will not be fatal to the case of the prosecution for the delivery receipt Ex.PW22/A1 and Ex.PW22/PX prove that the motorcycle in question was sold to the brother of the accused on 15.06.2008 by PW2 Neearj Ahuja.

26. As regards the contention of the Defence that the DNA report does not incriminate the accused for the possibility that the articles seized from the crime spot were tampered with, the contention in rebuttal is that the entire chain of custody of the aforementioned articles right from the seizure of material from the crime spot, to the sending of material to the CFSL, its return from CFSL and its storage in the malkhana has been satisfactorily accounted for and proved by the police officials namely PW13, PW15, PW16, PW17, PW18, PW24, PW26 and PW37. They have pointed out that the aforementioned witnesses prove that the articles seized during investigation have in no manner been tampered with and it was not suggested to any of the aforementioned witnesses that the samples had been tampered with and it is their submission that in the absence of the same, the accused cannot be heard SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 32 of 90 to allege that the samples were tampered with. According to the Ld. Addl. PP for the State, the DNA report conclusively proves that it is the accused alone who had committed the rape and murder of the deceased prosecutrix. It has also been submitted that the mere fact that no public witnesses were joined in the recovery of the articles belonging to the deceased lady from the house of the accused, is hardly of any importance in view of the recent judicial dicta laid down in this respect. It has been further contended by Ld. Addl. PP for the State and Sh. Khurana that the accused had taken a false plea of alibi in his statement u/s 313 Cr.P.C and this plea of alibi was not taken at all during the crossexamination of the prosecution witnesses. It has also been contended that the onus to prove that the accused was not using the mobile phone that was recovered from his possession at the time of his arrest and the cash amount recovered from his room actually belonged to him, was upon the accused and he has miserably failed to discharge the said onus for he has failed to produce his sister in law in the witness box whom he asserts was using the mobile phone in question and who had given an amount of Rs.35,000/ to him a day before his arrest. It is, therefore, asserted that the best evidence available to the accused, having not being led by him, shows that he has always been taking false pleas. In support of the contentions made in rebuttal, the following judgments have been relied upon:  Mukesh Vs. State (NCT of Delhi) and Ors. (2017) 6 SCC 1.

 Santosh Kumar Singh Vs. State through CBI (2010) 9 SCC 747.

SC No. 8429/2016 FIR No.30/15

State Vs. Ram Tej                                    P.S. Vasant Kunj (S)                                                33  of  90
            Ramnaresh and Others Vs. State of Chhattisgarh (2012) 4 SCC
            257.
           Inspector of Police, Tamil Nadu Vs. John David (2011) SCC 509.
           State of Karnataka Vs. K.Yarappa Reddy (1999) 8 SCC 715.
           Ujjagar Singh Vs. State of Punjab (2007) 13 SCC 90.
           Zahira Habibullah Sheikh (5) and Anr. Vs. State of Gujarat and
            Others (2006) 3 SCC 374.
           State (GNCTD) Vs. Sunil (2001) 1 SCC 652.
           Sunita Sharma Vs. State of Delhi (2016) 15 SCC 551.


           Findings and Conclusion:

27. Having considered the submissions made by the Ld. Addl.PP for the State, Ld. Counsel for the complainant and the Ld. Defence counsel and having gone through the records of this case meticulously, this court is of the considered opinion that the prosecution has been able to prove, beyond all reasonable doubt, that it was the accused alone who would have raped and murdered the deceased lady. This is so because of the two clinching circumstances proved on record by the prosecution.

a. The first of the said two circumstances is the DNA report Ex.PW1/B prepared and proved by PW1 Dr. B.K. Mohapatra. As per the deposition of this witness, he has been working in CFSL, CBI, Biology Division, Lodhi SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 34 of 90 Road, New Delhi since the year 2003 and has examined and reported 1000 number of cases relating to forensic biology and DNA profiling and that on 03.02.2015, he had received 28 sealed parcels in connection with the present case and after a comprehensive examination of the exhibits contained in the said sealed parcels, he had prepared his report Ex.PW1/B. The most material finding of the said report is that semen was detected on Ex.2(i) i.e. one black shawl (recovered from near the dead body & identified to be that of the 'deceased' by her husband) and Ex.21 i.e. one red coloured underwear having reddish brown stains (which was recovered from the vaginal cavity of the deceased) and that the DNA profile generated from the male fraction DNA obtained from the source of these exhibits i.e. Ex.2(i) and Ex.21 was found to be consistent with the DNA profile of the accused (the source of which was the blood sample taken of the accused at the time of his medical examination Ex.29). Thus, as per the said report, a black coloured shawl found near the dead body and one underwear recovered from the vaginal cavity of the deceased lady was found to contain the semen of the accused and that is why this report is being relied upon by the prosecution to contend that it is the accused alone who had committed rape upon the deceased and thereafter, had murdered her.

b. The second incriminating circumstance that has been proved on record by the prosecution against the accused is the recovery of the articles, which SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 35 of 90 the deceased lady had on her person on 09.01.2015, from the room of the nursery where the accused was admittedly residing. As per the deposition of the main investigating officer PW38 Inspector Dhaiya and PW30 Inspector Ugesh, on 11.01.2015 the accused led the Police party to the room in Kusum Nursery, where he used to reside and got recovered from therein, one mobile phone make Salora, one polythene containing a white coloured envelope on which the name of the deceased was written in English words and in which an amount of Rs.6,609/ was found, one polythene containing one pair of Paajeb of silver colour and one mangalsutra wrapped in a piece of newspaper. PW38 has interalia specifically deposed that the mobile phone and the envelope containing money were got recovered by the accused from the corner space between the edge of an iron pipe affixed to support the roof and the wall and the other polythene containing paajeb and mangalsutra were got recovered from behind a gattaply placed on a window of the same room. Now admittedly the mobile phone, the paajeb and the mangalsutra were identified during test identification proceedings conducted before Ld. Magistrate, by the husband of the deceased lady to be belonging to her and being carried by her on 09.01.2015. The husband of the deceased lady PW8 has interalia deposed that on 16.02.2015 he had participated in the TIP proceedings and had identified the aforementioned articles before the Ld. Magistrate. The said TIP proceedings, Ex.PW8/B on which the signatures of this witness appear have not only been proved by him but also by the Ld. MM PW40 Shri Sujit Saurabh. As regards the envelope containing an amount of Rs.6,609/, PW8 SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 36 of 90 interalia has deposed that on 09.01.2015 while his wife was leaving for work she had told him that she would be receiving her salary on that day. Further PW12 Shri Ravind Sachdev, the owner of the factory where the deceased lady was admittedly working, has inter alia deposed that on 09.01.2015 he had paid salaries to all his employees including the prosecutrix and that he had given an envelope containing Rs.6,609/ to the deceased prosecutrix towards her salary dues and that he himself had written her name in English on the said envelope. The said witness has identified the envelope recovered from the room of the accused to be the same envelope which he had handed over to the deceased lady.

28. Now, both these aforementioned incriminating circumstances are being challenged by the Defence. As regards the DNA report Ex.PW1/B, the contention of the Defence with respect to the same is two fold. It has been firstly sought to be contended that the semen of the accused which was collected from him forcibly during police remand, was planted on the shawl and underwear, in question. It has been pointed out that apart from the shawl and the underwear in question, the semen of the accused was not admittedly recovered from the vaginal swab or the swab from the inner thigh of the deceased or from the vegetative matter recovered from the left hip or the clothes of the deceased. It has also been pointed out that no DNA of the accused could be detected on the nail clippings of the deceased . The plea is that if the deceased had been raped by the accused, his semen/DNA should SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 37 of 90 have been found on the aforementioned parts of the body of the deceased and since it has not been so found, the only inference that should be drawn is that the exhibits collected from the spot were tampered with. In the alternative, it has been contended that no blood sample of the accused was ever collected during investigation and though he was taken to the hospital for his medical examination, no samples were drawn as no doctor was available at the time that he was taken to the hospital and that the FSL expert i.e. the author of DNA report Dr. B.K. Mohapatra has given a false report at the instance of the IO. It has been sought to be contended that in a recent case of the Talwars' the Hon'ble Allahabad High Court has given an observation that Dr. B.K. Mohapatra in the said case had given an incorrect statement. The submission, therefore, is that Dr. B.K. Mohapatra is not a credible witness at all and his report alone should not be made the basis for determining the guilt of the accused.

29. In the considered opinion of this court, none of the two contentions of the Defence have any merits whatsoever. There is absolutely no material on record which even suggests that the exhibits were tampered with. The black shawl in question, as per the evidence on record, was taken into possession by the investigating officer on 10.01.2015 as per the deposition of PW38 Insp. M.S. Dahiya, PW13 ASI Matwar Singh, PW15 Const. Ranjan Kumar, PW16 W/Const. Neeta, PW18 Ct. Satya Prakash, on 10.01.2015 when they had reached the spot where the dead body was discovered, they had found one SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 38 of 90 tiffin box, two shawls - one of orange colour and the other of black colour, one orange scarf, brown coloured ladies shoes and one yellow coloured polythene lying near the dead body. PW38 Insp. M.S. Dahiya has further specifically deposed that he had converted the shawls, the scarf and the polythene into a separate pullanda and had sealed the same with the seal of MSD and thereafter had seized the same vide seizure memo Ex.PW15/B. As per his further deposition and that of the concerned malkhana Incharge of PS Mehrauli PW37 HC Parvesh Kumar, the said pullanda alongwith other pullandas that were prepared at the spot were deposited by PW28 with the malkhana Incharge PW37 on 10.01.2015 itself. The relevant page of the register of the MHC(M) containing the entry with respect to the deposit on 10.01.2015 of said pullanda in a sealed condition has been proved by PW37 as Ex.PW37/A. Further, as per the deposition of PW37 and PW26 Ct. Bijender Singh, on the instructions of the IO, the said sealed pullanda alongwith other pullandas / parcels was deposited with CFSL, CBI Lodhi Colony on 03.02.2015 by PW26 Ct. Bijender Singh. The expert PW1 as per his report had found the pullanda to be properly sealed and had tallied the seal on the said pullanda with that of the sample seal of MSD before opening it. Thus, by virtue of the depositions of the IO PW38, the malkhana Incharge PW37 and PW26 Ct. Bijender, the prosecution has been able to prove that the pullanda containing the shawl in question was deposited with CFSL in the same condition in which it was prepared on 10.01.2015. Now interestingly SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 39 of 90 though it is being contended that the pullanda in question was tampered with, it is a matter of record that PW26 and PW37 were not even asked a single question in their crossexamination despite an opportunity for cross having been given to Ld.Counsel Sh. Suresh Sisodia. Even to the main investigating officer PW38, the only suggestion in this respect that has been put is that he did not prepare the seizure memo at the spot but had prepared the same, while sitting in the Police Station and that before sending the clothes of the deceased, he had mixed up the same with the clothes and blood samples of the accused. The said suggestion, in the considered opinion of this court, hardly raises a doubt on the testimony of the investigation officer or that of other police officials. As per the case of the investigating agency, the only three clothes of the accused that were recovered during investigation were his shirt, pant and underwear which he had disclosed to have worn at the time of the crime and had got recovered from his room and admittedly, though some blood stains were found on the said shirt, semen was not detected on any of these three clothes, as per the report Ex.PW1/B and therefore, it is not understandable how these clothes could have been mixed with the shawl in question to put semen on it to falsely implicate the accused. The contention of Ld Defence Counsel that during police remand, the accused was forced to give his semen, which was then planted upon the shawl is not even worth considering for not a single suggestion in this respect has been made to the investigating officer or to any of the police officials. The accused in his SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 40 of 90 statement tendered u/s 313 Cr.P.C has not taken any such plea whatsoever. In the considered opinion of this court, therefore, the mere contention of the Ld. Defence Counsel at the time of final arguments that since the medical examination of the accused shows that he had many injury marks on his body, he must have been tortured by the Police and that therefore there is a possibility that his semen was collected and planted on the shawl, cannot be accepted at all.

30. Even otherwise, in the considered opinion of this court, the contention of the Defence that the semen of the accused could have been planted on the underwear of the prosecutrix which was recovered from her vaginal cavity is absolutely ludicrous. Admittedly, as per the depositions of the two doctors who had conducted the postmortem of the dead body, namely PW5 Dr. Abhishek Yadav, Asstt. Professor and PW7 Dr. Mantaran Singh Bakshi, Jr. Resident, both from the Department of Forensic Medicine, AIIMS, this underwear was recovered by them at the time of postmortem and that they had sealed the same and signed thereon alongwith the other samples that were preserved and also similarly sealed and signed by them. Further, PW18 Ct. Satya Prakash has categorically deposed that on 12.01.2015, when he had gone alongwith PW24 Ct. Ajay to the AIIMS hospital, he had received, from the mortuary AIIMS, three sealed pullandas alongwith three sample seals of the hospital and that he had produced the said pullandas before the IO on the same day after his return to the Police Station and that the IO Insp. Mahender SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 41 of 90 Singh Dahiya had seized the same vide seizure memo Ex.PW18/B. He has also categorically deposed that so long as the exhibits remained in his custody, the same remained intact and not tampered with. Now perusal of Ex.PW18/B reveals that it is recorded interalia therein that one pullanda on which it was written ''red underwear recovered from vaginal cavity PMN 43/15 dated 11/01/15'' was produced by PW18 Ct. Satya Prakash before the IO Insp. Mahender Singh Dahiya on 12.01.2015 and the same was seized vide Ex.PW18/B. Further, the deposition of PW37, HC Parvesh Kumar, MHC(M) P.S. Mehrauli, and the relevant page of the register maintained by him, Ex.PW37/C, makes it clear that this pullanda was deposited with the malkhana on 12.01.2015 itself and it was sealed with the seal of 'Department of Forensic Medicine, AIIMS, New Delhi'. The deposition of PW26, Ct. Bijender Singh, and the road certificate, Ex.PW37/D, further makes it clear that this police official had deposited this pullanda (mentioned at Sr. No.21 of Ex.PW37/D) alongwith the other pullandas with FSL on 03.02.2015. Further, the report Ex.PW1/B of Dr. B.K. Mohapatra also reveals that he had received this pullanda in a sealed condition bearing the same seal namely 'Department of Forensic Medicine, AIIMS, New Delhi'. As narrated hereinabove, neither has the Defence chosen to cross examine PW37 or PW26 nor has it been put to Dr. B.K. Mohapatra that he had not received the samples in a sealed condition. It is also relevant to mention that even to the doctors who had conducted the postmortem of the deceased, not a single SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 42 of 90 suggestion has been put that they had not sealed the underwear. In such view, without even putting such a plea to the prosecution witnesses during the recording of their evidence, the Defence has no right to contend at the stage of final arguments that the doctors of AIIMS had handed over the underwear to the IO in an unsealed condition and he had tampered with it. It cannot at all be conceived as sought to be contended by the Ld. Defence Counsel that the doctors of AIIMS at the behest of the IO may have handed over to him the underwear of the prosecutrix in an unsealed condition only to falsely implicate the accused. Further, the record infact reveals that the exhibits recovered during the postmortem of the deceased were first sent to the mortuary in a sealed condition and were thereafter collected from the mortuary by PW18.

31. As regards the contention of Ld Defence Counsel that since apart from the shawl and the underwear of the deceased which were recovered from her vaginal cavity, no other body part was found to contain the semen of the accused, an inference should be that the exhibits have been tampered with, has also no merit for PW1 Dr. B.K. Mohapatra on a query by this court has clarified that though the semen of the accused was found on the underwear of the deceased which was recovered from her vaginal cavity, the semen could not be traced otherwise in her vaginal area because of excessive bleeding that occurred due to the insertion of the wooden sticks in her vaginal area. The said witness has also explained that when the vaginal swab or the swab from SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 43 of 90 her hip would have been collected by the concerned doctor, who would have conducted the postmortem the wooden sticks would have been taken out by the doctor and that too, would have caused flow of blood in all directions and the same would have also made it very difficult for the semen to have remained in the said cavity and be collected. The said expert was also put a question by the Ld. Defence Counsel as to why no blood of the accused could be traced on the body of the prosecutrix and in reply thereto, the said expert has explained that the inspection of the dead body had made it clear to him (as narrated in para 10 of this judgment, this witness had also inspected the dead body on the date of its discovery) that at the time of the death of the deceased lady, much bleeding had occurred and that therefore the blood of the victim in high concentration on her body parts would have masked the small portion, if any, of the blood of the accused that might have been possibly present thereon. In the considered opinion of this court, the deposition of Dr. B.K. Mohapatra is completely trustworthy and credible and he has been able to stand the test of crossexamination.

32. Coming now to the alternative plea of the Defence namely that the medical examination of the accused was never got conducted and no blood or other samples were drawn from his body and that Dr. B.K. Mohapatra at the instance of the investigating officer, gave a false report, in the considered opinion of this court, the same has also no merit whatsoever. The allegation of Ld. Defence Counsel that Dr. B.K. Mohapatra is not a credible witness SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 44 of 90 because in some other case, the Hon'ble Allahabad High Court has passed adverse observations against him and that therefore there is a possibility that in the present case also without even having the blood samples of the accused, he gave a false report at the instance of the Investigating Officer cannot be accepted at all, firstly because it was not at all suggested to the said expert that he did any such act and that infact the blood samples of the accused were never received at the FSL and secondly, the prosecution has brought sufficient evidence on record to show that the accused was infact taken for his medical examination to AIIMS and his blood samples were taken at the time of his medical examination and were sent in a sealed condition to the FSL. In this respect, first of all PW18 Ct. Satya Prakash, PW24 Ct. Ajay and PW25 SI Deepak Panwar have all categorically deposed that on 12.01.2015, they had taken the accused to AIIMS hospital in a Government vehicle No. DL1LD5052 TATA 407 and according to all three of them, the medical examination and potency test of the accused was conducted at AIIMS on the said date. Apart from these witnesses, PW31 Dr. Mahesh Kumar, Senior Resident, AIIMS, has proved the MLC and the potency report of the accused that was prepared on the said day. He has interalia deposed that as per MLC Ex.PW5/D, the medical examination and potency test of the accused Ramtej was conducted on 12.01.2015 by Dr. Kartik [Admittedly, as per record, summons sent to Dr. Kartik, Senior Resident, AIIMS, had been returned back with the report that he had left the services of the AIIMS hospital and SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 45 of 90 thereafter, the Medical Superintendent of AIIMS was directed to depute any doctor of AIIMS who could identify the signatures of Dr. Kartik and it is Dr. Mahesh Kumar who was so deputed]. This witness has categorically deposed that Dr. Kartik was his batch mate and he had seen him writing and signing in the course of his duties and that is the reason he is able to identify his signatures on Ex.PW5/D. He has further identified on judicial record the medical examination and potency test report, Ex.PW5/E of the accused as also bearing the signatures of Dr. Kartik and the official stamp of AIIMS.

33. In the considered opinion of this court, the MLC Ex.PW5/D and Ex.PW5/E proved by the aforementioned doctor clearly proves that the medical examination of the accused was conducted at AIIMS on 12.01.2015 and that the accused is falsely contending that his medical examination was not conducted as the concerned doctor was not available. The aforementioned medical reports record not only the general physical examination that was conducted but also specifically records the marks of identification and the injuries found on the body of the accused. It is mentioned in the said reports that a black mole is present on the chest of the accused and an old healed scar is present on the left side of his neck. In view of such specific identification marks recorded in the aforementioned reports, it is absolutely frivolous on behalf of the Defence to contend that the accused was not got medically examined and that his samples were not collected.

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34. It also cannot be doubted that the samples collected from the accused were properly sealed and handed over to PW24, Ct. Ajay as deposed by him and as recorded in MLC Ex.PW5/D and Ex.PW5/E. It is to be taken note of that PW31 Dr. Mahesh has clearly deposed that as per the endorsement on Ex.PW5/D and as per the contents of Ex.PW5/E, the exhibits were preserved, sealed and were handed over to the Police alongwith the sample seal. Perusal of Ex.PW5/E shows that it is categorically recorded therein by Dr. Kartik Krishna that blood in gauze, penile swab, control swab, underwear, nails clippings of the accused have been preserved, sealed, signed and handed over the Police alongwith the sample seal. PW24 Ct. Ajay has also specifically interalia deposed that after the medical examination and potency test of the accused were completed, the doctor had given him sealed pullandas alongwith sample seal. On being questioned during the crossexamination, he has deposed that his signatures were taken on the MLC by the concerned doctor in acknowledgement of the samples received and it is relevant to mention herein that though Ld. Defence Counsel had submitted that the MLC in question Ex.PW5/D did not have the signatures of Ct. Ajay, during the course of final arguments, Ld. Addl. PP for the State had submitted before this court that the signatures of the police official were taken on the carbon copy of the MLC and that a copy of the said acknowledgement is available with the police file and the same was filed before this court and it was further SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 47 of 90 submitted by Ld. Addl. PPP for the State that if this court so wishes, the carbon copy of the MLC on which the acknowledgement of receipt by Ct. Ajay was taken, can be proved by resummoning the hospital records. Since the Ld. Defence Counsel had then submitted that he does not wish to dispute the acknowledgement filed on record during final arguments but had merely reiterated that his contention that the accused was never taken for his medical examination be noted, this court had not found it necessary to recall the hospital records in view of the fact that the acknowledgement filed on record is not disputed per se. In the considered opinion of this court, the medical documents proved on record and the depositions of PW18, PW24 and PW25 are sufficient to hold that the accused was got medically examined on 12.01.2015 and that his blood and other samples were also drawn out by Dr. Kartik on this day. Further, the deposition of PW24, Ct. Ajay that after collecting the samples from the hospital, he had produced the same before the IO and that the IO had seized the same is also proved by the seizure memo Ex.PW24/A. Perusal of Ex.PW24/A reveals that it is recorded interalia therein that one small plastic container sealed with the seal of Department of Forensic AIIMS, New Delhi, stated to be containing blood in gauze of accused, MLC N.4782015 dated 12.01.2015 was produced by Ct. Ajay (PW24) before the IO Insp. Mahender Singh Dahiya and the same was seized. The said sealed pullandas were deposited with the FSL in the same sealed condition also stand proved by the deposition of P26 Constable Bijender SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 48 of 90 Singh and PW37 Parvesh Kumar MHC(M), whom as narrated hereinabove, the Ld. Defence Counsel did not even choose to crossexamine.

35. In view of the aforementioned discussion, this court is absolutely convinced that there is no material on record to even remotely doubt that the semen of the accused was found on the black shawl recovered from near the body of the deceased and on the underwear of the prosecutrix recovered from her vaginal cavity.

36. Coming now to the second incriminating circumstance namely the recovery of the articles belonging to the deceased prosecutrix having been recovered from the room of the accused, the said recovery is being challenged by the Defence on the following grounds:  Since there is no public person who was made to join the alleged recovery proceedings, the recovery cannot at all be believed. Ld. Defence Counsel Shri Sisodia has pointed out that though the defence witness DW2 Murari Lal in his crossexamination has categorically deposed that there were seven persons working in the Kusum Nursery at the relevant time and on 09.01.2015, he himself, Bhagirath, Shiv Kumar, Rahul, Radhey, Shatrughan and Pawan were all present in the Nursery, none of them were admittedly joined in the alleged recovery proceedings, that according to the investigating agency were conducted on 11.01.2015 He has further pointed out that even DW3 SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 49 of 90 Malkan Singh, who was working as Supervisor in Kusum Nursery and who was present in the Nursery on 11.01.2015, was not joined by the investigating officer in the recovery proceedings.

 The missing report Ex.PW14/A lodged by the husband of the deceased in the morning of 10.11.2015 at PS Fatehpur Beri does not mention the deceased to be wearing any mangalsutra, paajeb or carrying mobile phone or purse on her person and therefore the version that the deceased was carrying such things is an afterthought and concocted.

 The husband of the deceased, PW8 in his crossexamination has neither been able to produce on record the purchase bills of the mobile phone, paajeb or the mangalsutra which he identified to be belonging to his wife nor has he been able to give the dates on which or the names of the shops from which he had purchased the said articles.  In the natural course of human conduct, had the accused actually murdered the lady, he would not have kept her mobile with himself - according to Ld. Defence Counsel, since as per the deposition of the husband of the deceased, he had continuously called on the mobile number of his wife during the intervening night of 0910.01.2015 and that the mobile had kept ringing shows that the mobile was never switched off and it is his contention that if the accused had actually murdered the lady, he would have either switched off the mobile or he would have left it at the site of the murder itself and would not have SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 50 of 90 taken the chance of retaining the mobile with him. According to the Ld. Defence Counsel, the mobile must have been recovered from near the deceased body only and would have been planted upon the accused later to falsely implicate him.

 The envelope containing an amount of Rs.6609/ was also planted upon the accused, for PW12 is not a credible witness at all as he has been unable to stand the test of crossexamination and has not produced sufficient evidence in the court to prove that he had given the salary to the deceased on the night of 09.01.2015. According to Ld. Defence Counsel this witness being the employer of Mohd. Alam, who was the main suspect initially, in connivance with the police officials, has deposed falsely about the envelope in question, in order to save Mohd. Alam. It is the contention of Ld.Defence Counsel that infact the amount of Rs.6,609/ was a part of Rs.35,000/ which the accused was carrying on his person when he was arrested. Ld. Defence Counsel has pointed out that in his statement recorded u/s 313 Cr.P.C, the accused has narrated that on the date of his apprehension, he had handed over his purse containing Rs.35,000/ to one Brijesh, the son in law of his Mausa Sohan Lal, and that Brijesh told him that this amount was taken away by the Police from Brijesh after calling him to the Police Station. It has been further pointed out that the accused has also explained that this cash amount was saved by him out of his salary and that he had given it to his Bhabhi for safe keeping and the same was returned to SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 51 of 90 him by his Bhabhi. According to the Ld. Defence Counsel, the brother of accused Ram Dheeraj and his wife had to go out of station and before leaving station, the Bhabhi of the accused i.e. wife of Ram Dheeraj had returned the amount of Rs.35,000/ to the accused.

37. The contention therefore is that the prosecution has not only failed to prove that the aforementioned articles belonged to the deceased lady but have also failed to prove that they were recovered at the instance of the accused from his room. According to Ld. Defence Counsel all these articles are easily available in market and were planted by the investigating officer to show that they had been recovered at the instance of the accused.

38. In the considered opinion of this Court, the aforementioned contentions raised by the defence will also have to be negated. Though no doubt DW2 Murari Lal has inter alia stated in his crossexamination that he himself, Bhagirath, Shiv Kumar, Rahul, Radhey, Shatrughan and Pawan were all present in the Nursery on 09.01.2015, he does not make any such statement with respect to 11.01.2015. On the contrary, in his examination in chief itself he has deposed that on 10.01.2015, he Bhagirath, Rahul and Shiv Kumar were picked up by the Police at about 8.00 PM and illegally detained in the police station for three days and were released only on 12.01.2015 in the middle of the night. Further DW3 Malkan Singh, the Supervisor of Kusum Nursery on a leading question put by the Ld. Defence Counsel himself has categorically SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 52 of 90 deposed that on 11.01.2015 the Police had visited the Kusum Nursery in the morning. Further, though on a question put by the Ld. Defence Counsel, this witness has stated that nothing was recovered in his presence, he has clarified that the Police had taken the accused towards the back side of the Nursery where he did not go. What the deposition of these two defence witnesses reveals is firstly that the colleagues of the accused who were present in the nursery on 10.01.2015 were picked up by the Police on that day and secondly, on 11.01.2015, the Police officials had infact visited the Kusum Nursery and at that time only DW2 was present and he too did not accompany the Police officials to the room of the accused which was towards the end of the Nursery. The contention of the Ld. Defence Counsel that since as per the deposition of DW2 only he himself, Bhagirath, Rahul and Shiv Kumar were illegally detained by the Police in the night of 10.01.2015, the other three employees at the Kusum Nursery namely Radhey, Shatrughan and Pawan may have been present and that the Police did not deliberately join them in the asserted recovery proceedings for nothing was recovered from the room of the accused cannot be accepted because there is no affirmative evidence on record that the persons namely Radhey, Shatrughan and Pawan were present in the Nursery on 11.01.2015. DW3 was the witness of the Defence and if the Defence so wanted they could have easily affirmed the presence of Radhey, Shatrughan and Pawan in the Nursery on 11.01.2015 from DW3 which has not been done.

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39. In the considered opinion of this court, what the aforementioned evidence reveals is that only DW3 was available at the Kusum Nursery when the police team arrived there alongwith the accused and DW3 did not choose to accompany the police team. In such view, there is no reason for this court to hold that the Investigating Officer, PW38 in the present case has concocted the version of recovery of articles from the room of the accused at his instance, more so when the articles have been recovered from such places in the room of the accused which were only in his exclusive knowledge - as narrated hereinabove some of the articles, in question, were recovered from the corner space between the edge of an iron pipe affixed to support the roof and the wall of the room and the remaining were recovered from behind a gatta ply placed on a window of the same room. The Hon'ble Supreme Court in a case titled and reported as State Vs. Sunil (2001) 1 SCC 652 ( a judgment relied upon by the Ld. Counsel for the complainant), has made the following important observations with respect to a recovery effected pursuant to a disclosure made by an accused: '' 20. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leaded to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 54 of 90 for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an orchaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 55 of 90 materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.''

40. In the present case also, this court has no reasons to doubt the seizure records of the recovery in question proved by PW38 and PW30.

41. As regards the contention of Ld. Defence Counsel that the purchase bill of the mobile phone has not been proved on record, suffice is to state that the customer application form of mobile connection bearing no. 7836944656, the SIM of which has been found in the mobile recovered at the instance of the accused, has been proved to have been subscribed in the name of the husband of the deceased (the IMEI number of the mobile phone recovered at the instance of the accused from his room, as per the seizure memo Ex.PW29/F, is 911347100542620 and this number is also mentioned in the CDR record). It is also to be noted that the husband of the deceased PW8 has categorically SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 56 of 90 deposed that this mobile was purchased by him in the year 2014 and he had lost the purchase bill of this mobile phone due to shifting of his residence. He has also stated in his deposition that his wife used to use the said mobile connection and this portion of his deposition has not been challenged by the Defence and on the contrary it is the contention of the Defence that it is the Bhabhi of the accused who used to speak to the prosecutrix on this number these two facts on record are sufficient to prove that the mobile shown to have been recovered at the instance of the accused was being used by the deceased only. Further though no doubt the husband of the deceased has been unable to place on record the purchase bills of the mangalsutra and the paajeb, it is to be borne in mind that he has explained that the mangalsutra was purchased by his wife on her own and he did not have the bill of the same and further that he recollects that the name of the jeweller, J. Shri or Shri J. from whom the paajeb was purchased, was engraved on the paajeb. The fact that there is a Court observation of the Ld. Predecessor that the words Shri ji were infact found engraved does show that the witness was truly deposing that the paajeb was belonging to his wife. In the considered opinion of this Court, the mere fact that the husband of the deceased was unable to place on record the purchase bills of the aforementioned articles, is not a ground to disbelieve his testimony that the said articles belonged to his wife. Further the fact that in the missing report, Ex.PW14/A, these jewelery articles or the mobile were not mentioned hardly takes away anything from his credibility for it may be that when he went to lodge the missing complaint of his wife, the concerned SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 57 of 90 Police official asked him to only describe the clothes and not the jewellery that his wife was wearing on the day that she was last seen. No explanation regarding the nonmentioning of the mangalsutra or paajeb or the mobile phone in Ex.PW14/A was sought from the husband of the deceased in his crossexamination and in the absence of any such questions, his credibility cannot be challenged in the manner sought to be done.

42. As regards the contention of Ld. Defence Counsel that in the natural course of human conduct the accused would not have retained the mobile of the deceased lady with himself, in the considered opinion of this court, it is rightly submitted by the Ld. Addl.PP that it is not always correct to presume that a person having committed a crime would act in the same manner as an ordinary person would do. Further, the fact that the accused did not at all hear the mobile phone ringing to become apprehensive could be due to the fact that the mobile was hidden by the accused in the roof of his room, from where it was admittedly recovered. It also cannot be lost sight of that the photographs of the dead body Ex.P1 to Ex.P16, proved on record by PW2 to have been taken by him on 10.01.2015, clearly show that there was no mobile phone lying next to the dead body and therefore the contention of the Defence that the mobile of the deceased must have been lying next to her and was later planted upon the accused, cannot be accepted at all.

43. Coming now to the contention of the Ld.Defence Counsel namely that SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 58 of 90 the envelope containing the salary of the deceased prosecutrix was also planted upon the accused and that PW12 is not a credible witness, this court again is unable to agree with the Ld. Defence Counsel. This court has carefully considered the deposition of PW12 Ravind Sachdev. As narrated hereinabove, this witness has interalia deposed that the deceased lady was working at his factory and that on 09.01.2015, he had paid salary to all his employees including the deceased lady and that he had given an envelope containing Rs.6,609/ to the deceased lady towards her salary dues. This witness has also produced the original voucher book on record and the same has been exhibited as Ex.PW12/B and page No.16 of the said book reveals that Rs.6,609/ was paid to the prosecutrix on 09.01.2015 and that she had signed as receipt of the salary amount. This witness has also categorically deposed that he was present when the deceased had received the salary and he himself had handed over the envelope containing Rs.6,609/ to her. In the considered opinion of this court, nothing has come to the fore during his crossexamination which makes this court doubt his testimony. The submission of Ld. Defence Counsel that this witness, who has no enmity with the accused, would falsely implicate the accused at the instance of the police officials only to save one of his employees Anwar Alam who was a suspect, cannot be accepted. It is relevant to mention that during the course of final arguments, the Ld. Addl.PP for the State had informed this court that during initial investigation, based on the call detail records of the mobile phone being used by the prosecutrix, all those persons who had telephoncially called SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 59 of 90 the prosecutrix on 09.01.2015, had been called for interrogation and that since there were two telephone calls made between the prosecutrix and Anwar Alam, this person was also called and inquired from and after being satisfied that Anwar Alam had nothing to do with the murder of the deceased prosecutrix, no further action was taken against him. The submission of Ld. Addl.PP for the State was that the prosecution was not bound to have filed alongwith the chargesheet all the investigation that it had done and that since Anwar Alam was not finally found to have nothing to do with the murder of the deceased lady, the inquiry conducted with respect to him, was not made a part of the chargesheet and that does not at all lead to the inference that the IO had connived with Anwar Alam or with Ravind Sachdev to let go Anwar Alam and falsely implicate the accused. In order to satisfy itself, this court had asked the IO of this case to give a written report in this respect and he had, during the course of final arguments, filed a report alongwith the statements of Anwar Alam and three other employees of the SEAMS factory that were recorded during initial investigation. The said report and the statements reveal that Anwar Alam had informed the IO that prior to 09.01.2015, the prosecutrix had been requesting him, he being the Production Manager, to get her an advance of Rs.2,000/ from the owner of the factory and that on 09.01.2015, he had at about 7 - 7.15 p.m. called up the prosecutrix to inform her that the owner would be disbursing salary and that he has spoken to him about her request and that the prosecutrix had then called him up at about 9.36 p.m that the owner had not given any advance to SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 60 of 90 her. A copy of the aforementioned report was also supplied to the Ld. Defence Counsel. Though strictly speaking this report and the statements shown to have been recorded on 04.10.2015, are not admissible in evidence per se, this court on the repeated insistence and contention of Ld. Defence Counsel that the actual murderer was Anwar Alam and that the IO had let him off, to satisfy its conscience, had called for this part of the investigation which was not referred to in the chargesheet and this court is satisfied that the investigating officer has not acted with any malafide intentions in this respect.

44. On the contrary, it shows that the Investigating Officer with all fairness and had initially rounded up all the persons who had been in telephonic touch with the prosecutrix on the date of her death and a few days prior thereto and ultimately, the accused was zeroed in as the prime suspect because it was the accused who was unable to provide a satisfactory answer about his talks with the prosecutrix. As narrated in the preceding paragraphs, the analysis of the call detail records of the mobile used by the prosecutrix revealed that one caller from the mobile no. 9711476409 had been calling the prosecutrix at about the same time when she used to leave her factory and that when the details of this caller were obtained from the concerned mobile company, it was revealed that one Ram Dheeraj (the brother of the accused) was the subscriber of this mobile connection and accordingly, the police party had reached his residence and there the daughter of Ram Dheeraj had informed SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 61 of 90 the police party that it was the accused, her chacha, who was using the said number and that he works at the Kusum Nursery. It is based on this information given by the niece of the accused that the police party had reached the Kusum Nursery. It is pertinent to mention that in his statement recorded u/s 313 Cr.P.C., in reply to question No.38, the accused has admitted that on 10.01.2015, the police alongwith his niece had come to the Kusum Nursery and that from his possession one Micromax mobile was recovered. The said admission on the part of the accused and the acceptance of the testimony of the IO that they had reached Kusum Nursery only after the niece of the accused had informed them that the accused would be available there, shows that despite the fact that the niece of the accused has not been produced in the witness box by the prosecution, the police party reached the Kusum Nursery only after the information that the mobile number being reflected in the CDRs of the prosecutrix was infact being used by the accused. Once this circumstance has been proved on record by the prosecution against the accused, it was upon the accused to have proved that despite the mobile phone having being recovered from his possession, he was not the user of the same. The submission of the accused u/s 313 Cr.P.C that the said mobile belonged to Ram Dheeraj and was being used by wife of Ram Dheeraj and that on 10.01.2015, it was in his possession only because he had brought the same from a repair shop at Mehrauli, was for the accused to have proved and he has absolutely failed to discharge this onus. Neither has the sister in law of the accused stepped into the witness box to state that it was she who was SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 62 of 90 using the mobile phone in question nor has the Defence given any details of the repair shop from which the accused allegedly had collected the mobile phone.

45. In view of the discussion hereinabove, this court is of the considered opinion that none of the contentions raised by the Defence with respect to the recovery of the articles of the deceased from the room of the accused have any merit and the prosecution has been able to prove beyond all reasonable doubt the said recovery.

46. Now despite the aforementioned two irrefutable circumstances proved on record, the contention of the Ld. Counsel Sh. Sisodia is that since the prosecution has failed to prove the first link in the chain of circumstantial evidence namely that the deceased was last seen alive with the accused on the night of 09.01.2015 by PW3 Ram Chela, the entire case of the prosecution must fail. Ld. Defence Counsel Sh. Sisodia has pointed out that though in his examination in chief, PW3 Ram Chela had interalia deposed that on the night of 09.01.2015, he had seen the prosecutrix riding pillion on a motorcycle and that he had seen a man wearing a black jacket driving the said motorcycle and further that during investigation he had identified the accused to be that man, in his crossexamination, he has admitted that he had not seen the face of the driver of the motorcycle on which the deceased was riding pillion on the night of 09.01.2015 and that it is at the instance of the Police SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 63 of 90 only that he had stated that it was the accused only who was driving the motorcycle. The further contention of Sh. Sisodia is that it has also been proved during trial that the motorcycle, in question, did not at all belong to the brother of the accused and the IO has manipulated the documents to show that the motorcycle, in question, infact belonged to the brother of the accused. In this respect Ld. Defence Counsel has pointed out that though as per the case of the prosecution, the motorcycle bearing No. DL16C7573 was got recovered by the accused from the house of his brother and that one Neeraj Ahuja (PW22) had sold the said bike to the brother of the accused, it is apparent from the evidence on record that the said bike was never sold by Neeraj Ahuja to the brother of the accused. It has been pointed out by the Ld. Defence Counsel that PW22 in his crossexamination has admitted that the affidavits relating to the sale and purchase of the motorcycle were prepared on 06.04.2015 - the contention is that the said admission shows that the said documents were got prepared at the instance of the IO, after the alleged incident of murder of the deceased on 09.01.2015. The contention of the Ld. Addl. PP for the State, on the other hand, is that though the affidavits of sale and purchase have been got prepared on 06.04.2015, the delivery receipts Ex.PW22/A1 and Ex.PW22/PX were prepared on 15.06.2008, i.e. the date of the sale only. It has also been pointed out by the Ld. Addl. PP for the State that PW3 Ram Chela had supported the case of the prosecution when he was earlier examined and crossexamined in the year 2015 and that he refused to SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 64 of 90 identify the accused as the driver of the motorcycle only in the year 2017 when he was recalled after the orders of the Hon'ble Delhi High Court directing the framing of additional charge and his contention, therefore, is that the possibility that he was won over by the accused in the intervening period cannot be ruled out.

47. Having considered the submissions made by both the Ld. Addl. PP for the State, Ld.Defence Counsel and Counsel for the complainant, this court is of the considered opinion that the prosecution does appear to have failed to prove beyond all reasonable doubt that PW3 Ram Chela had seen the deceased alongwith the accused on the night of 09.01.2015. It cannot be ignored that this witness in his crossexamination conducted on 16.12.2017 has categorically deposed that he does not remember whether or not the motorcycle driver was wearing a helmet and that he is not sure whether or not he was able to see the face of the accused. This court does not agree with the Ld. Addl.PP for the State that there is a possibility that PW3 was won over after he was examined in court in 2015 and before he was recalled in the year 2017. It cannot lost sight of that the accused has been in custody since the time of his arrest and his family does not appear to be financially that well off so as to win over a witness, in the manner being alleged by the prosecution. The deposition of PW3 recorded by this court on 16.12.2017 has a ring of truth about it. On being categorically asked by the Ld. Addl. PP for the State that while on 14.10.2015 he had stated in his deposition that there was fog on SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 65 of 90 09.01.2015, in the evening and that now he was stating that he was not sure whether or not he was able to see the face of the accused as it was night time and there was fog, this witness after keeping quiet for a very long time had then informed this court that he had been able to identify only the deceased lady on 09.01.2015 and not the accused and that on 16.01.2015 it is the police officials who had shown the accused to him and had told him to state that it was the accused only whom he had seen alongwith the deceased lady on 09.01.2015. Even otherwise, if one does not consider the crossexamination of this witness conducted on 16.12.2017, even then his deposition given on 14.10.2015, that he had seen the deceased and the accused together on the night of 09.01.2015, hardly inspires confidence. In the said deposition, this witness admitted that though he had seen the driver of the motorcycle wearing a black coloured jacket, he had not noticed anything else about him and had not given any description whatsoever of the said driver to the Police and that he did not even remember the colour or the make of the motorcycle at all. His crossexamination of the said date also reveals that he himself was a suspect initially, as he also had telephonically spoken to the prosecutrix twice on 09.01.2015 and had been called to the Police Station for inquiry on 23 occasions and was questioned for about 1 and ½ hours on 10.01.2015. He also admitted that he used to frequently go to the Police Station Fateh Pur Beri, being in the services of security agency and that it was by sheer coincidence that on 16.01.2015 that while he was passing through MG Road, he saw the police officials walking towards DDA nursery with the accused SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 66 of 90 and it is then that he had identified him. In the considered opinion of this court, in view of such statements, the possibility that he being known to the police officials and initially being a suspect himself, agreed to identify the accused as the person whom he had seen with the deceased on the night of 09.01.2015, cannot be ruled out at all.

48. As such, this court is of the considered opinion that the prosecution has been unable to prove beyond all reasonable doubt that PW3 had seen the deceased and the accused on the night of 09.01.2015.

49. In such view of the matter, it is now irrelevant to consider whether or not the prosecution has been able to sufficiently prove the recovery of one motorcycle at the instance of the accused from the house of his brother as admittedly the said recovery was being relied upon by the prosecution only to show that the accused was riding the same motorcycle on which he was seen by PW3. Even otherwise since PW3 had not given any make, colour and registration number of the motorcycle which he saw, in the considered opinion of this court, the recovery of a motorcycle from the house of the brother of the accused has not much relevance. As regards the submission of the Ld. Defence Counsel that since the documents Ex.PW22/A3 and Ex.PW22/A4 prove that they were prepared at the instance of the IO, this court should not believe any part of the deposition of IO and that he becomes SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 67 of 90 a completely unreliable witness, suffice is to state that no such inference can be drawn against the IO. No doubt, from the date of the documents Ex.PW22/A3 and Ex.PW22/A4 itself, it is apparent that the same were got prepared after the present incident, however, the same only reflects the over zealousness of the IO and not his malafide intention. Had his intentions been malafide, he would have got prepared ante dated affidavits of sale and purchase. Further, it cannot be lost sight of that the delivery cum receipt of the motorcycle in question, Ex.PW22/A1, bears the date of 15.06.2008, the date deposed by PW22 as the date on which he had sold his motorcycle to Ram Dheeraj - there is no doubt about the execution of the said document at all. Thus, the irregularity on the part of the IO in insisting that PW22 and the brother of the accused Ram Dheeraj must also execute the affidavits of sale and purchase of the motorcycle, on 06.04.2015, does not cast any aspersion on the remaining investigation conducted by him. It is well settled law that justice is not to be made a casualty for the wrongs committed by the Investigating Officers.

50. Now, despite this court holding that the prosecution had not proved the fact that PW3 had seen the deceased along with the accused on the night of 09.01.2015, in the considered opinion of this court, the same is not fatal to the case of the prosecution. It is not that the judicial dicta relied upon by the Ld. Defence Counsel lays down that all circumstances relied upon by the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 68 of 90 prosecution in a case of circumstantial evidence are to be proved - in the considered opinion of this court, the judicial dicta is that in cases based on circumstantial evidence, the circumstances being relied upon by a court to hold an accused guilty should be sufficiently proved and should irrefutably point out to the guilt of the accused. In a judgment titled and reported as Inspector of Police Vs. John David (2011) 5 SCC 509 (a judgment relied upon by the Ld. Counsel for the complainant), the Hon'ble Supreme Court has clearly held that failure to prove one of the circumstances would not be fatal to the case of the prosecution and if the cumulative effect of the remaining circumstances clearly point out to the guilt of the accused, he cannot seek to derive any benefit from the non proving of one circumstance against him. In the considered opinion of this court, the two circumstances discussed hereinabove to have been proved by the prosecution alone in themselves are sufficient to hold that it is the accused only who would have raped and murdered the deceased prosecutrix. The cumulative effect of the two said circumstances namely that the semen of the accused was found on the underwear of the prosecutrix recovered from her vaginal cavity and on her shawl and the fact that the articles which the prosecutrix was possessing on her person on the night of her death were recovered from the room of the accused establishes the guilt of the accused beyond all reasonable doubt and therefore, even if the prosecution has failed to prove that PW3 had witnessed the two of them together, the same is not fatal to its case. The fact that the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 69 of 90 accused had sexual intercourse with the prosecutrix just before her death itself shows that she was last alive with him only. There is nothing on record for this court to doubt the DNA report in question. The use of DNA as a scientific tool in forensic medical examination has also been statutorily acknowledged now by virtue of section 53A (2) (iv) of the Cr.P.C which requires that a medical practitioner conducting the examination of a person accused of rape, take samples for his DNA profiling also. This court is, therefore, of the view that in the present case, since the DNA report confirms that the semen detected on the underwear of the victim containing alleles were fully accounted for in the blood samples taken from the accused, this conclusively proves the guilt of the accused. In similar circumstances like the present one, the Hon'ble Delhi High Court in the case titled and reported as State Vs Bharat Singh 2014 SCC OnLIne Del 2225 ( a judgment relied upon by the Ld. Addl. PP for the State), has also held that an incriminating DNA report against the accused determines his guilt beyond all reasonable doubt.

51. At this stage, it will be relevant to mention another circumstance that has come to the fore which points out to the guilt of the accused and that is the fact that he appears to have taken a false plea in his statement under section 313 Cr.P.C., that he had never spoken to the prosecutrix and that he had never visited the house of the prosecutrix and that he was not even aware that the husband of the prosecutrix had met with an accident and could not SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 70 of 90 work and that the prosecutrix used to work in a factory in Sultanpur (these statements have been given by the accused in answer to question nos. 1, 2, and 87A put to him). The falsity of the said plea is proved on record by the call detail records of the mobile number used by the prosecutrix and also by the deposition of brother of the accused and the defence taken during trial.

52. Coming first to the call detail records of the mobile being used by the prosecutrix, Ex.PW28/C (for the period 01.10.2014 to 10.01.2015), the same reveal that the accused had been in touch with the prosecutrix about 1 - 1 ½ months prior to her murder and used to frequently call up the prosecutrix at the same time that she used to leave the factory. As per the said call detail records, the accused had called the prosecutrix from mobile no.9711476409 on various days in the month of December and that too sometimes at odd hours. In particular the said details reveal that the accused made calls to the prosecutrix on the following days:  29.11.2014 at about 16:50 hours, 20:57 hours., 21:08 hours and 21:09 hours.

          06.12.2014  at about 18:18 hours.
          07.12.2014     at about 14:47 hours, 14:48 hours,   18:22 hours, 18:39
           hours and 18:41 hours.
          08.12.2014   at about 12:43 hours, 17:31 hours, 17:42 hours, 17:54
           hours and 18:12 hours.




SC No. 8429/2016                                    FIR No.30/15
State Vs. Ram Tej                                    P.S. Vasant Kunj (S)                                                71  of  90
           09.12.2014  at about 13:42 hours., 18:30 hours and 18:55 hours.
          10.12.2014   at about 18:40 hours.
          11.12.2014     at about 14:20 hours, 17:53 hours, 19:24 hours, 21:29
           hours, and 21:37 hours.
          12.12.2014  at about 21:38 hours.
          13.12.2014   at about 21:36 hours and 21:36 hours. 
          15.12.2014  at about 11:30 hours and 21:35 hours.
          16.12.2014  at about 21:14 hours.
          19.12.2014  at about 16:04 hours, and 21:34 hours.
          20.12.2014  at about 19:22 hours and 21:13 hours.
          25.12.2014  at about 20:51 hours.
          28.12.2014   at about 13:27 hours and 18:28 hours.
          29.12.2014  at about 21:36 hours and 21:40 hours.
          30.12.2014 at about 14:58 hours, 18:34 hours and 19:30 hours.
          01.01.2015  at about 13:00 hours.
          03.01.2015  at about 16:06 hours, 16:11 hours and 20:32 hours.
          04.01.2015  at about 17:04 hours.
          05.01.2015  at about 13:54 hours.
          06.01.2015   at about 18:12 hours and 21:31 hours.
          08.01.2015  at 21:15 hours and 21:32 hours.
          09.01.2015 - at about 13:49 hours. 



SC No. 8429/2016                                    FIR No.30/15
State Vs. Ram Tej                                    P.S. Vasant Kunj (S)                                                72  of  90

53. Though the accused, as narrated hereinabove, has taken a defence that he was not at all using this mobile number to speak to the prosecutrix and that his Bhabhi, i.e. the wife of his brother Ram Dheeraj, used to use the said number, this court has in the preceding paragraph 44, already negated this defence of the accused and has held that the prosecution has been able to prove that it is the accused only who was using this mobile number and therefore, it stands proved that it is the accused only who used to speak to the prosecutrix.

54. Apart from the call detail records, the falsity of the plea taken by the accused under section 313 Cr.P.C is also proved by the own brother of the accused PW23 Ram Dheeraj who has deposed in his crossexamination that the deceased and his family were having cordial relationship with him and his family and he and his family used to visit the house of the prosecutrix often. The husband of the deceased PW8 has also categorically deposed in his deposition that he knew the brother of the accused for the last 1012 years for both of them had stayed together in the same locality for long periods of time and that the accused had come to stay at the house of Ram Dheeraj, sometime back and that the accused also used to frequently come to his house and that his children used to address him as Chacha and in particular in the evening of 01.01.2015 also, the accused had come to his house and had remained at his house till 9:30 p.m and during a casual talk had informed him SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 73 of 90 that his elder brother Ram Dheeraj and his wife had gone to their native village and that PW8 had requested the accused to look for a job for the deceased prosecutrix and that the accused had stated that there is some cooking job for her in Vasant Kunj and that he will try to find out more about the same. Now, there is no suggestion put in the crossexamination of this witness that he has deposed the aforementioned facts falsely and on the contrary, it has been put to him that he and his family were having cordial terms with the family of Ram Dheeraj and that he and his wife i.e. the deceased prosecutrix used to frequently visit the house of Ram Dheeraj. In the considered opinion of this court, when it is the own plea of the Defence that the families of Ram Dheeraj and the deceased were on very good terms and used to frequently visit each other's place and it is also their own case that the accused used to spend a substantial amount of his time at the house of his brother Ram Dheeraj, the accused obviously is making a false statement that he had never spoken to the prosecutrix or that he did not know that her husband had met with an accident and that she only used to earn for the family. This false plea being taken by the accused strengthens the belief of this court about the guilt of the accused for it forms an additional circumstance proved against him.

55. However, there are yet two other contentions made by the Ld. Defence Counsel to contend that the accused must be granted the benefit of doubt, which need to be dealt with. The first of the said contentions is that since the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 74 of 90 prosecution has not proved any motive for the accused to have committed the murder of the prosecutrix, in the absence of same, in a case based only on circumstantial evidence, this court should not hold the accused guilty. It has been contended by the Ld. Defence Counsel that assuming that the accused was having an extramarital affair with the prosecutrix as sought to be contended by the prosecution, there would have been no reason for him at all to rape and murder her. It is the submission of Ld. Counsel that the disclosure statement allegedly made by the accused cannot at all be read in evidence to hold that the accused had committed the murder because the prosecutrix had started avoiding the accused and had wanted to break her relations with the accused.

56. As regards the said contention, it will be relevant to note the observation made by the Hon'ble Supreme Court in the case titled and reported as Ujjagar Singh Vs. State of Punjab (2007) 13 SCC 90 ( a judgment relied upon by the Ld. Counsel for the complainant). In the said judgment, it has been observed by the Hon'ble Supreme Court that though it is true that in a case relating to circumstantial evidence, motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and further that the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. In the present case, the fact that the accused had raped the deceased lady itself reveals the motive for SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 75 of 90 the accused to have murdered her. No doubt the prosecution has not been able to prove how things turned sour between the prosecutrix and the accused to a point that the accused raped her, as observed by the Hon'ble Supreme Court, it is not always possible for the prosecution to prove such things. The fact that the prosecutrix and the accused were close to each other, the fact that the accused has been taking false pleas that he did not know the prosecutrix at all, the fact that the semen of the accused was found on the underwear worn by the prosecutrix on the night that she was murdered, the fact that the articles possessed by the prosecutrix on the date of her death were recovered from the room occupied by the accused, have all been proved by the prosecution beyond all reasonable doubt and the cumulative effect of the said facts, even in the absence of the proving of a motive, is that they lead to the conclusive inference of the guilt of the accused.

57. Coming now to the second contention taken by the Ld. Defence Counsel in this respect is that the accused by leading defence evidence has been able to prove that he could not have been present at the place where the prosecutrix was allegedly raped and murdered. According to the Ld. Defence Counsel Sh. Sisodia, DW1 Rahul, the nephew of the accused, and DW2 Murari Lal, a Maali working at Kusum Nursery, have both been able to prove this plea of alibi taken by the accused. Ld. Defence Counsel has pointed out that DW1 in his deposition has categorically deposed that on 09.01.2015, the accused had come to his house at about 7:30 - 8 p.m and had stayed with SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 76 of 90 them till 10:30 - 11 p.m. and DW2 Murari Lal has also similarly deposed that on 09.01.2015, he had seen the accused leaving the nursery at about 7 - 7:30 p.m and coming back at about 10:45 - 11 p.m. The contention of the Ld. Defence Counsel is that there is no reason for this court to disbelieve the depositions of these two witnesses merely on the ground that they are defence witnesses and could be interested in the acquittal of the accused. On the other hand, Ld. Addl. PP for the State and Ld.Counsel for the complainant, have contended that this plea of alibi has not been taken by the Defence at all during the recording of the evidence of the prosecution and that this is a mere afterthought and concocted at the stage of 313 Cr.P.C. They have pointed out that it has not been suggested to the investigating officer Insp. Dahiya or to any of the other police officials who have investigated this case that the accused could not have committed this offence for he was not even present near the site.

58. Though this court completely agrees with the Ld. Defence Counsel that defence witnesses are not to be disbelieved only because they may be related to the accused or otherwise interested in his acquittal, in the present case, this court does not find the testimony of either DW1 or DW2 worthy of any credence. This is so for mainly two reasons. Firstly, as pointed out by the Ld. Addl PP for the State and Ld. Counsel for the complainant, this plea of alibi has been set up belatedly at the stage of Section 313 Cr.P.C and no reasons whatsoever are being given as to why this plea was not taken at any SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 77 of 90 earlier point of time. In the judgment pronounced by the Hon'ble Supreme Court in the case titled and reported as Sunita Sharma Vs. State of Delhi (2016) 15 SCC 551 (a judgment relied upon by the ld. Counsel for the complainant), one of the reasons that the Hon'ble Supreme Court also rejected a plea of alibi was because it was taken belatedly at the stage of section 313 Cr.P.C. The second reason why the plea of alibi is not inspiring any confidence in this court is because of the own statement tendered by the accused under section 313 Cr.P.C. In the said statement, the accused has interalia stated that on the night of 09.01.2015, he had reached the house of his brother Ram Kalap near Chhattarpur, Durga Mandir, at about 9 p.m and had remained there till about 10:30 p.m. Now if one accepts this statement of the accused, it is inconsistent with the testimony of both DW1 and DW2, for according to both of them, the accused was present at the house of DW1 from 7:30 p.m onwards. DW1 Rahul, the nephew of the accused has categorically deposed that on 09.01.2015, the accused had come to his house at about 7:30 or 8 p.m. Now if the contention of the Ld. Defence Counsel that DW1 may have given the time of 7:30 - 8 p.m by approximation only is to be accepted then it can also equally be accepted that the time given by him of the accused leaving his house at about 10:30 p.m is also by approximation and the accused might have left his house at about 9:30 p.m as being contended by the prosecution and could have met the prosecutrix at 9:30 at her factory (Admittedly, as per the case of the prosecution and the Defence, the Kusum SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 78 of 90 Nursery, the factory of the prosecutrix, the house of DW1 at Chhattarpur, are all within a radius of 23 km). Thus, in the considered opinion of this court, the testimony of DW1 does not at all prove the plea of alibi being taken by the accused.

59. Coming now to the testimony of DW2 Murari Lal, he has deposed that the accused used to leave the nursery everyday at about 7:30 p.m to have dinner at his brother's house and that he used to return back by 10 - 11 p.m and further that on 09.01.2015 also, the accused had left the nursery at about 7:15 p.m (which is, as narrated hereinabove, inconsistent with the statement of the accused tendered under section 313 Cr.P.C) and had returned in the night at about 10.45 - 11 p.m. In crossexamination, this witness has admitted that he had not dropped off the accused at the gate of the nursery on 09.01.2015. According to him, he used to sleep in the office room which was near the gate of the nursery and that the gate of the nursery was visible from the said office room - according to the Ld. Defence Counsel, it is in this manner that this witness could have seen the accused leaving the nursery at about 7:15 p.m and returning at about 10:45 - 11 p.m. It has to be taken note of that this witness in his crossexamination has stated that the distance between the gate of the nursery and the office room was about 150 feet and that he usually used to start consuming liquor at about 7 - 8 p.m and then sleep at about 10 - 11 p.m. He has also stated in his crossexamination that on 09.01.2015 at about 10:30 - 11 p.m, he had gone to sleep on his bed and that SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 79 of 90 he had finally fallen asleep at about 11:30 p.m. In view of such statements made by this witness, it does not seem probable that at about 10:30 - 11 p.m. while lying reasonably drunk down on his bed, he could have seen the accused entering the gate at a distance of 150 feet and that too, when as per the own case of the Defence, there was huge amount of fog on the said night (it was put by the Defence itself to PW3 that on 09.01.2015, there was huge amount of fog and that there was almost zero visibility and DW3, another witness of the defence, has himself stated that there was indeed fog on 09.01.2015).

60. Even otherwise, presuming that this witness had seen the accused return on the night at about 11 p.m, the nursery where the murder was committed and the nursery where the accused resided were situated near to each other and since the prosecutrix had left her factory at about 9:30 p.m, the accused could have easily committed the rape and murder of the prosecutrix before 11 p.m and therefore, the deposition of DW2 hardly makes the presence of the accused at the spot of the murder highly improbable and as such, his deposition does not come to the aid of the defence under section 11 of the Indian Evidence Act, 1872.

61. In view of the discussion hereinabove, this court hereby rejects the plea of alibi taken by the accused. At this stage, it would be relevant to mention a contention made by the Ld. Defence Counsel at the fag end of the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 80 of 90 final arguments namely that there is a possibility that the accused had sexual intercourse with the prosecutrix one day before her murder and that it being winters, the prosecutrix may have worn the same underwear for two days. According to the Ld. Defence Counsel, the photographs of the crime reveal that the prosecutrix might have been gangraped and one man could not have murdered and raped her. Needless to state that this kind of a contention made is nothing but a desperate attempt to somehow explain the incriminating circumstance that has come against the accused, to the fore during trial. No basis has been set up for this plea during the entire trial. On the contrary, during the entire trial, it has been the defence of the accused that he never had sexual intercourse with the prosecutrix and that he did not even know her very well. In a case titled and reported as Iqbal Moosa Patel Vs. State of Gujarat reported in 2011(1) JCC (Narcotics) 35, it has been observed by the Hon'ble Supreme Court that though it is true that under our existing jurisprudence in a criminal matter, we have to proceed with a presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man and the prosecution is not required to meet any and every hypothesis put forward by the accused. It was further observed that a reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense and must necessarily grow out of the evidence in the case. This court is constrained to note that this doubt being raised by the Defence at the fag end SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 81 of 90 of the trial i.e. final arguments is absolutely baseless and frivolous and does not at all grow out of the defence taken in this case.

62. In the considered opinion of this court, the prosecution has been able to prove beyond all reasonable doubt that it is the accused alone who would have raped and murdered the prosecutrix and there is no hypothesis of innocence of the accused that can be drawn on the basis of the evidence that has come on record. The two incriminating circumstances proved against the accused coupled with the false pleas taken by him do not leave any reasonable ground for a conclusion consistent with the innocence of the accused.

63. The question that now remains to be determined is under which sections of the IPC is the accused to be held guilty i.e. to determine if he has to be held guilty under section 376A IPC and 302 IPC or under section 302 IPC, section 376 IPC and section 201 IPC. In this respect, the contention of the Ld. Defence Counsel is that since it is the case of the prosecution itself that the accused was having a consensual physical relationship with the deceased prosecutrix, it cannot be ruled out that even on the night of her death, she had consented to have sexual intercourse with the accused. The submission, therefore, is that the accused cannot at all be held guilty of the offences punishable under section 376A IPC or 376 IPC, even though he may be convicted of the offences punishable under section 302 IPC and 201 IPC.

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State Vs. Ram Tej P.S. Vasant Kunj (S) 82 of 90

64. In rebuttal to the said contentions, Ld. Addl. PP for the State and the Ld. Counsel for the complainant have urged before this court to consider the injuries received by the prosecutrix which are mentioned clearly in the postmortem report and it is their contention that the said injuries itself prove that the prosecutrix had put up a struggle to prevent the accused from committing rape upon her.

65. Now the postmortem report, Ex.PW5/C, records that there were thirteen antemortem injuries found on the body of the deceased prosecutrix. It will be relevant herein to reproduce the injuries described in the postmortem report. Same are as follows:

1. A bluish contusion of size 1 x 1 cm is present over the left side of lower lip at the inner aspect.

2. A reddish blue contusion of size 4 x 2 cm is present over the left ramus of the mandible near the midline. Another reddish contusion of size 2x1 cm is present along the lower border of the left ramus of the mandible just adjoining the injury on the ramus of the left mandible.

3. Ligature Mark - A reddish ligature mark of width varying from 2 to 2.5 cm is present at the middle one third of neck over the thyroid cartilage. The ligature mark is completely encircling the neck and is horizontally placed. The ligature mark is 5 cm below the mentum and 9 cm above suprasternal notch in anterior midline of neck. The ligature mark is 5 cm below right mastoid tip and 5 cm below left mastoid tip on lateral aspect of neck. Total neck circumference is 28 cm.

4. A circular pressure contusion is present over the right ear lobule.

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State Vs. Ram Tej P.S. Vasant Kunj (S) 83 of 90

5. A linear laceration of size 1 cm is present over the lobule of the left ear associated with blood stain.

6. A reddish crescentic abrasion (nail mark) of size 0.8 cm, with concavity upwards, is present 3 cm below the left ear.

7. A laceration of size 1.5 x 0.8 cm is persent over the mons pubis. Two lacerations of size 2 x 2 cm and 2 x 1.5 cm are present over the left and right side of upper part of the vaginal vestibule.

8. Multiple small lacerations of size varying from 0.5 to 1 cm present circumferentially around the anal region at the level of sphincters.

9. The wooden stick, present in the vaginal canal, is extending from the vulva to the left kidney. A red coloured underwear is recovered in the vaginal canal, and has been sealed, signed and handed over to the police. It has entered the vaginal cavity causing contusion and multiple lacerations, perforated the anterior vaginal wall, peritoneal surface of the urinary bladder, mesentry of the small intestine in the abdomen,posterior peritoneal wall on left side and then is lodged in the hilar region of the left kidney displacing the kidney upward and lacerating the hilar region. The track of this wound is 34 cm. Whole length of the stick is 41 cm and the circumference of the stick is 6.5 cm.

10. The wooden stick, present in the anal canal, is extending from the anus to the left kidney. It has entered the anal cavity causing contusion, perforated the rectosigmoid junction, mesentry of the small intestine in the abdomen, posterior peritoneal wall on the left side and then is lodged in the hilar region of the left kidney displacing the kidney upward and lacerating the hilar region. The track of this wound is 32 cm. Whole length of the stick is 43 cm and the circumference of the stick is 6.5 cm. The tracks of the both the sticks in injury No.9 and 10 are directed upward, backward and to the left and are associate with 1000 ml of fluid and clotted blood in the peritoneal cavity.

11. A reddish grazed abrasion of size 6 x 6 cm is present over the interscapular region of the back in the midline.

SC No. 8429/2016 FIR No.30/15

State Vs. Ram Tej P.S. Vasant Kunj (S) 84 of 90

12. A reddish curvilinear abrasion of size 15 x 0.2 cm is present over the outer aspect of right hip, running downward and inward.

13. A reddish curvilinear abrasion of size 6 x 0.2 cm is present parallelly and 1.5 cm medially along the lower half of the above abrasion.

66. Apart from these injuries, it will also be relevant to mention the cause of death as mentioned in the postmortem report and the same is as follows: ''Cause of Death: Combined effect of ligature strangulation and shock due to visceral injuries and blood loss. The injuries No.3,9 and 10 individually and collectively are sufficient to cause death in the ordinary course of nature. All the injuries are antemortm in nature. Viscera has been preserved to rule out concomitant intoxication. Other samples have been reserved for relevant analysis''.

67. Now though it is the contention of Ld. Defence Counsel that all the aforementioned injuries could have been caused by the accused after having established consensual physical relationship with the accused, in the considered opinion of this court, the aforementioned injuries present on the lips, mandible, ears, on the back in the midline, on the hip of the prosecutrix do indicate that all these injuries would have been caused to her while the accused was forcibly raping her. It has to be taken note of that the accused also, as per the MLC Ex.PW5/D, had abrasions, scratches and bite marks on his back, which do lead to an inference that the sexual intercourse that he had with the prosecutrix on the night of 0910.01.2015, was not consensual. Having said so even otherwise, this court is of the considered opinion that the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 85 of 90 accused is liable to be convicted for both the offences punishable under section 302 IPC and section 376A IPC, for after the amendment of the definition of rape as provided under section 375 IPC vide Act 13 of 2013 w.e.f 03.02.2013, it is not only the penetration of penis into the vagina of a woman which constitutes rape but the insertion to any extent of any object into the vagina, urethra and anus of a woman also constitutes rape. In view of this amended definition, the intentional act of the accused inserting wooden sticks into the vagina and anus of the deceased prosecutrix also constitutes rape. The contention of the Ld. Defence Counsel that the accused had inserted wooden sticks into these areas with an intention to destroy evidence and not with an intention to commit rape or the murder of the prosecutrix and therefore he should be convicted only under section 201 IPC and not under section 376 IPC, cannot be accepted at all. Though no doubt there is no direct evidence of the chronology in which the accused would have committed the acts of assault upon the prosecutrix, the postmortem report of the prosecutrix clearly reveals that injuries to her vagina and anus were antemortem in nature and clearly therefore the prosecutrix was alive when the accused committed these ghastly acts upon her. It, therefore, cannot at all be accepted that the accused inserted wooden sticks into the vagina and anus of the prosecutrix with a view to destroy evidence after she had died due to strangulation - Ld. Defence Counsel has been unable to explain which evidence was the accused attempting to destroy by putting sticks into the anus SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 86 of 90 of the prosecutrix and therefore this court is absolutely convinced that accused had inserted wooden sticks into the vagina and anus of the prosecutrix with the intention of committing the act which now constitutes rape after the amendment of section 375 IPC. As regards the contention of the Ld. Defence Counsel that even then it cannot be stated that accused had done these acts with an intention to cause the death of the prosecutrix, suffice is to state that the provisions of section 376A IPC do not require the prosecution to prove that an accused had an intention of causing death of the victim and all that is required as per the said provisions is for the prosecution to prove that the accused in the course of committing rape upon the victim caused such injuries to her which that led to her death or caused her to be in a persistent vegetative state (similar observations have been made by the Hon'ble Delhi Court in its order dated 17.10.2017 vide which this court had been directed to frame additional charges against the accused for having committed the offence punishable under section 302 IPC). It would be relevant at this stage to reproduce the provisions of section 376A IPC.

"376A. Punishment for causing death or resulting in persistent vegetative state of victim - Whoever, commits an offence punishable under subsection (1) or subsection (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 87 of 90 woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death".

68. Now in the present case, the postmortem report makes it clear that the strangulation of the prosecutrix and the insertion of wooden sticks in her vagina and in her anus were both individually and collectively sufficient in the ordinary course to have caused her death. The said opinion of the doctors who conducted her postmortem and the provisions of section 376A IPC, make it thus clear that the injuries caused to the prosecutrix during the course of insertion of sticks into her vagina and anus also led to her death and therefore, the accused is liable to be convicted for the offence punishable under section 376A IPC. In such view the contention of the Ld. Defence Counsel that the accused should be convicted only for the offence punishable under section 201 IPC and not section 376A IPC, has to be negated and the accused is to be held guilty of the offence punishable under section 376A IPC and not 201 IPC. In addition, he having strangulated the prosecutrix and the said strangulation also having caused her death, as per the postmortem report, also makes him liable to be convicted for the offence punishable under section 302 IPC, for the act of strangulation, clearly reveals the intention of the accused to SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 88 of 90 cause the death of the prosecutrix.

69. As regards the charges framed against the accused for having committed the offences punishable under section 392/411 IPC, in the considered opinion of this court, the act of the accused in taking away the mangalsutra, paajeb, mobile phone and the salary amount of the deceased prosecutrix makes him liable to be convicted under section 404 IPC and not for having committed the offence of robbery/possessing stolen articles punishable under section 392 or 411 IPC, for it cannot at all be stated that the accused had caused the death of the prosecutrix in attempting to commit theft of her articles. In the considered opinion of this court, the act of the accused also cannot be termed theft for there is no question of a dead body being considered a person capable of giving a consent or not giving it and therefore, it is section 404 IPC in which the accused has to be convicted for he dishonestly misappropriated the aforementioned property of the deceased prosecutrix. The said section makes it an offence to dishonestly misappropriate the property possessed by a deceased person at the time of his death. This court is supported in its view by the judgment of the Hon'ble Supreme Court pronounced in the case titled and reported as Ganesh Lal Vs. State of Rajasthan (2002) 1 SCC 731. In the said case also, an accused after raping and murdering a child had taken away her ornaments and the Hon'ble Supreme Court on the basis of the recovery of weapon of offence, blood SC No. 8429/2016 FIR No.30/15 State Vs. Ram Tej P.S. Vasant Kunj (S) 89 of 90 stained clothes of the accused, ornaments of the victim at the instance of the accused held him guilty of the offences punishable under section 376, 302 and 404 IPC. The fact that in the present case charges under section 404 IPC have not been framed against the accused cannot be stated to have caused any prejudice to him, for while framing charges against him under section 392 and 411 IPC it was brought to his notice that he is facing charges for having been found in possession of the mobile phone, the amount of Rs.6,609/, one mangalsutra and one pair of silver pajeb, all possessed by the prosecutrix on the date of her murder.

70. In view of the detailed discussion hereinabove, the accused is therefore hereby convicted of the offences punishable under section 302, 376A, and 404 IPC.

Digitally signed by ANU

                                                                                                        ANU                    GROVER
                                                                                                        GROVER                 BALIGA
                                                                                                                               Date:
Announced in Open Court                                                                                 BALIGA                 2018.05.03
                                                                                                                               16:14:28 +0530
On 2nd  day of May, 2018
                                                                                          (Anu Grover Baliga)
                                                                                  Court No.7, Lock UP Building
                                                                                       ASJ / FTC / PHC / NDD
                                                                                         New Delhi /02.05.2018




SC No. 8429/2016                                    FIR No.30/15
State Vs. Ram Tej                                    P.S. Vasant Kunj (S)                                                90  of  90

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State vs . Ram Tej on 2 May, 2018