Delhi District Court
State vs Suresh Malik Etc on 12 February, 2024
IN THE COURT OF MS. SURABHI SHARMA VATS
ADDITIONAL SESSIONS JUDGE-04: SHAHDARA:
KARKARDOOMA COURT: DELHI.
CNR No. DLSH01-001106-2014
SC No.718/16
FIR No.618/2014
U/S: 120B/364A r/w Section 120B IPC/
302 r/w section 120B/34 IPC and 25/27 Arms Act
P.S: Jyoti Nagar
State Versus 1. Suresh Malik S/o Sh. Balbir Singh
R/o. B-5, Gali No.18, Mahendra
Park, Adarsh Nagar, Delhi.
2. Pradeep @ Titu S/o Sh. Itwari Lal
R/o Y-67, DDA Flats, Near NDPL
Office, Jahangir Puri, Delhi
3. Indervesh @ Master
S/o Late Raj Singh
R/o. Atail, PS Tehsil, Sampla,
Dist. Rohtak, Haryana.
4. Rakesh S/o Sh. Raghuvir Singh
R/o. Atail, PS Tehsil, Sampla,
Dist. Rohtak, Haryana.
5. Sanjeev Arora
S/o Sh. Kherati Lal Arora
R/o. B-82, Gali No.1, Majlish
Park, Adarsh Nagar, Delhi.
Date of Institution : 20.11.2014
Date of Argument : 20.12.2023
Date of Judgment : 12.02.2024
Final Order : Acquittal
JUDGMENT
1. Succinctly stated, the facts of the case, are that the complainant Sh. Ashu Kumar Aggarwal, who is the son of Dinesh Kumar Aggarwal (deceased in the present case) has alleged that on 20.08.2014 at FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 1 of 102 about 10.30 a.m., his father Sh. Dinesh Kumar Aggarwal, aged about 60 years had gone out of his home for some work; that at about 12.56 PM, he (complainant) received a call on his mobile no.9811789800 from the mobile phone of his father bearing no.9311767048; his father told him that he had been abducted by 3-4 persons and has been locked in a room, wherein he is being beaten by these abductors and therefore, he (son/complainant) should do as to what they (abductors) say. Thereafter, some unknown person took phone from his father and asked the complainant to arrange Rs.3 Crore in one and half hours and to reach his office with cash amount alongwith all the jewellery kept in his house, as some person would be sent to his office, who would collect the cash amount and jewellery; that person also threatened the complainant to kill his father, if the information is given to the police or any relative. Thereafter, complainant made a call at 100 number.
On the basis of this statement of the complainant, the present case FIR i.e. FIR No.618/2014 PS Jyoti Nagar was registered. Next day, body of the deceased was recovered in/near a canal, Village Khidwali, PS Sadar, Rohtak and an FIR No.335/2014, U/s 302/201 IPC PS Rohtak Sadar was registered and dead body was sent for Postmortem by Haryana Police. After completing post-morterm by the concerned Doctor, dead body and the sealed parcels were handed over to the police (Haryana Police) and then, an intimation of recovery of dead body was received to Delhi Police.
INVESTIGATION & OTHER PROCEEDINGS
2. During the course of investigation of the present case FIR, firstly, accused Pradeep was arrested, then, accused persons namely Sanjeev Arora, Indervesh and Rakesh were arrested on 24.08.2014.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 2 of 102Pursuant to their disclosure statements, recoveries of case property including car and weapon of offence allegedly used in the commission of offences and two rings of the deceased was made from them / at their instance. Thereafter, accused Suresh Malik was arrested on 02.09.2014 and pursuant to his disclosure statement, recovery of one ring and some documents of the deceased was made from him.
After completing investigation and other formalities, charge- sheet U/s 302/364A/201/506/120B/34 IPC was filed against all the accused persons. On appearance, in compliance of Section 207 Cr.P.C, copies were supplied to accused persons and as offence punishable u/s. 302/364 A IPC is exclusively triable by the Court of Sessions, present case was committed to this Court (the then Ld. Predecessor Court). Thereafter, charge under Section 120B, 364A r/w Section 120B/34 IPC and 302 r/w section 120B/34 IPC was framed against all the accused persons and another charge U/s 25/27 Arms Act was framed against the accused Rakesh. Charges were read over and explained to all the accused persons in vernacular, to which they pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION
3. In order to substantiate the allegations against the accused persons for the alleged offences, the Prosecution has examined 39 witnesses. The relevant extract of examination of these witnesses is as follows :-
1) PW-1 WHC Urmila, Duty officer : She proved the registration of present case FIR vide its computerized copy Ex.PW1/A;
endorsement on rukka vide Ex.PW1/B. She also made relevant FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 3 of 102 entry in this regard in DD register vide DD No.28A i.e. Ex.PW1/C.
2) PW-2 Ashu Kumar Aggarwal, the complainant/ son of the deceased : He deposed that on 20.08.2014, he had left his house at around 8.30-9.00 am along with his wife for Pushpanjali Hospital, Vaishali in respect of treatment of his wife; at that time, his mother and father were present at his house; they [(PW2) and his wife)] came back to their house by around 11.30 am. He further deposed that he did not enter his house at that time and after dropping his wife, he (PW2) straightaway left for his office situated at Yamuna Vihar, Delhi; that he reached his office and thereafter, he left for Indrapuram; while he was on his way to Indrapuram, UP, he received a call on his mobile phone bearing no.9811789800 from the mobile phone of his father i.e., 9311767048 at 12.56 PM.
PW2 further deposed that his father told him (PW2) on phone that he (PW2's father) was kidnapped and confined by 4-5 unknown persons who haved also beaten him and he (PW2) should do as they say. Thereafter, some unknown person started talking to him on the phone; that he (unknown person) said to him (PW2) that he had time of 1 and 1 ½ hours and he should reach his office with Rs.3 Crore in cash and all jewellery from his home; that the caller instructed him (PW2) to hand over cash amount and jewellery to some person who would visit at his (PW2's) office at his (caller) instance; he further threatened him (PW2) that if he tried to inform anyone, then, his countdown FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 4 of 102 would start. (Tumhari ulti ginti shuru ho jayegi). Thereafter, he made a call at 100 number with the same mobile phone and informed them about this threat call and he came back to his home; that he also made call at his home and made inquiry from his family members about whereabouts of his father and he was informed that his father had left home before arrival of his wife. PW2 further deposed that the police had reached his house; and when he had reached his home, he had received five more telephone calls from the same number and all these five times, an unknown person had talked to him who had been making inquiry from him about the arrangements made by him for payment of money and jewellery; that the police recorded his statement Ex.PW2/A. PW2 further deposed that he had changed his phone set and had transferred the SIM card in another phone set having facility to record conversation; that he (PW2) had recorded the last call/ conversation received at about 6.00 PM and he had handed over the said mobile phone having recording of that last conversation, to the Police; that the police had sealed his phone and had prepared a document, which was signed by him; however, he does not remember the date of handing over this mobile which was seized vide seizure memo Ex.PW1/2; however, mobile phone was not given on that day; that on 20.08.2014, he had lastly met his father, before he left his home for Pushpanjali Hospital; that his father used to wear three rings in his fingers i.e., one gold ring with diamond, one gold ring and one silver ring with stone of blue and black colour; that on that day also, he FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 5 of 102 (father) was wearing these rings; that his father had employed a driver for him whose name was Inderpal.
PW-2 further deposed that on 20.08.2014 itself, after registration of this case, Inderpal had told him that on that day, he had brought one Form for RTGS transaction to his father and his father had signed that Form and given it to him. Thereafter, Inderpal was sent to Bank and his father had told him (Driver Inderpal) that his father was to go along with Mr. Suresh Malik (one of the accused) and therefore, he (driver) was not required to come back; that he (PW2) knew Suresh Malik because he had purchased one property in Adarsh Nagar Extension, Delhi which was in the name of Ms. Neelam Malik (bhabhi of accused Suresh Malik) and the property was purchased in the name of his father; that the accused Suresh Malik was one of the witnesses in that sale transaction related to three flats; that the accused Suresh Malik had been in their touch, thereafter; that he (PW2) had handed over copy of sale deed of one flat to the police; the photocopy of sale deed which was given by him (PW2) to the police is Ex.PW2/D. PW2 identified the accused Suresh Malik who was present in the court on the day of his deposition. He further deposed that later on, he was informed by Police about recovery of all three finger rings of his father and he had visited Karkardooma Court for the purpose of identifying those three rings; that he identified those three finger rings vide TIP proceedings and has also identified his voice regarding the last call of the kidnappers which was recorded by him in mobile FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 6 of 102 phone make INTEX Ex.10/A/Article 1. However, he did not identify the voice of other side. He further deposed that on the day of incident, his father was wearing a safari suit having the sticker of Garg Tailor; that he (his father) was wearing slippers of black colour make ACTION; he (his father) used to carry PAN card, cash and some other documents and he (his father) was also having slip of Aadhar card with him at this time; that he (his father) was having HTC dual phone at that time. PW2 further deposed that after he conveyed the incident to police, they had come to his house at Jyoti Nagar and he had narrated the entire details regarding the calls made by the kidnappers; that police had prepared searching team and dispatched the team at various places to trace his father; that he had received the call from kidnappers that he should come along with money and jewellery at his office at Yamuna Vihar; then, police had handed over him a bag of red colour having newspapers and had directed him to go to his office at Yamuna Vihar; police party was behind them; that none of the kidnappers came at his office and after that, they (police party) went away.
PW2 further deposed that the driver Inderpal had stated to him that his father had stated to him (driver) that Suresh Malik would come and take him. PW2 further deposed in his voluntarily portion that his father never used to go alone anywhere far as he did not know driving a four wheeler.
This witness was duly cross-examined by Ld. defence counsels. During his cross-examination, PW2 deposed that he does not remember as to how many times, police recorded FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 7 of 102 his statement; that some of his statements were recorded at his house and some were recorded at PS. He also deposed that on 20.08.2014, he was not having any apprehension against Suresh Malik, therefore, he had not mentioned about the property dealing between Suresh Malik and his father; that on 23.08.2014, he was informed by the police about murder of his father by accused Suresh Malik and other accused persons, therefore, he had disclosed to police about the property dealings having taken place between his father and bhabhi of accused Suresh Malik through Suresh Malik; that the property dealings had taken place in the year 2013.
Witness was asked whether IO recorded his statement in writing everytime, to which he replied in negative and stated that he (IO) used to note down the important points but he does not know as to when he wrote the same in his file.
PW2 admitted that he had mentioned to PCR officials that his father had gone on a scooter; that his father had gone to Yamuna Vihar; that when he received the call of kidnappers, instantly, he was under impression that his father had gone on his scooter to his office as it was a regular routine of his father to got to office on scooter; that he had stated to the police regarding the aforesaid facts to the police as when he returned back to is house, he saw the scooter parked in his house, which was being used by his father. He also deposed that he does not remember the exact time, it may be around 1.00 to 2.00 PM when his driver met him on 20.08.2014 and told him about his father's plan to go with Suresh Malik.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 8 of 1023) PW-3 Inder Pal, driver of the deceased: He deposed that he had been working as a driver with Shri Ashu Aggarwal (complainant) for around last five years; that he used to drive the vehicle of Sh. Dinesh Kumar Aggarwal (deceased herein); that he had met Shri Dinesh Kumar Aggarwal lastly on 20.08.2014 at about 10.00 a.m. at his home at Jyoti Nagar. He further deposed that he had gone to get his signature on RTGS Form and he (deceased) signed that Form and thereafter, he (deceased) went away along with someone else on a scooter; that PW3 does not know the name of that other person but he can identify him. Then witness looked around in the court and stated that that person is not present in the court. PW3 further deposed that when he had met Mr. Dinesh Kumar Aggarwal with RTGS Form, he (deceased) did not tell him anything about his program/ schedule of that particular day.
PW3 further deposed that police had not recorded his statement but had obtained his signature on one document; that he did not notice the contents of that document whether it was written in Hindi or English and therefore, he cannot tell the contents of that document; PW3 further deposed that he was kept in PS for around 24-25 hours and police had made inquiry from him about deceased Dinesh Kumar Aggarwal; that he does not know any friend of Mr. Dinesh Kumar Aggarwal with the name of Suresh Malik.
This witness was cross-examined by Ld. Addl. PP for the State as he resiled from his previous statement recorded by FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 9 of 102 Police U/s 161 Cr.PC. However, during this cross-examination, PW3 denied all the suggestions given by the Ld. Addl. PP for the State. During his cross-examination conducted by Ld. Defence Counsels, PW Sh. Inderpal deposed that at about 11.30 am - 1200 noon, he had informed Sh. Ashu Aggarwal that his father had gone with an unknown person on scooter.
4) PW-4 Jai Bhagwan, Sarpanch of village Khidwadi, Rohtak Haryana. He deposed that on 21.08.2014, in the morning hours, he received a telephonic call from Shri Bhoop Singh thereby, informing him that a dead body was lying in the agriculture field of Satbir; this agricultural field was located near a miner (small canal) between village Khidwadi and village Katwada (Haryana); that he went to that place near the dead body and it was a male dead body; the dead body was having clothes in the form of pant shirt. PW4 further deposed that he did not notice any injury mark on the body; he made call at 100 number and after some time, police officials from PS Rohtak Sadar came there; that one pistol and two bullets were also lying there and police took away the dead body with pistol and bullets; that he does not remember if the police recorded his statement; that he does not know if any FIR was registered in this respect in that Police Station.
PW-4 further deposed that Police had checked pocket of pant of that dead body and had found one wallet; that after seeing some card in the wallet, police told that the said dead body pertains to some Baniya of Delhi; that police officials from FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 10 of 102 Delhi had met him in PS Sadar, Rohtak later on but he does not remember the date and month; that he did not go to the same place along with Delhi Police officials so as to show the place where the dead body was found; that Delhi police officials had made inquiry and he had told them as to how he came to know about the dead body; that his signature was obtained on one blank paper.
This witness was cross-examined by Ld. Addl. PP for the State as he had resiled from his statement recorded U/s 161 Cr.PC. During his cross-examination, PW4 admitted that he had seen injury mark on the head of dead-body; but he does not know whether it was bullet injury mark or other kind of injury mark.
This witness was also cross-examined by Ld. Defence Counsels. During his cross-examination, he deposed that he had noticed three finger rings in the fingers of dead body. One was silver ring, another ring was stated to be very valuable by his village man. In response to a court query, he replied that in his presence, no photographs were taken of the dead body by anyone including police officials.
5) PW-5 Sh. Anil Kumar, nephew of the deceased : He is the witness of identification of dead body of the deceased Dinesh Kumar Aggarwal (deceased) and he has proved the dead body identification memo i.e. Ex.PW5/A and delivery memo of the dead body i.e. Ex.PW5/B. FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 11 of 102
6) PW-6 Inspector Mahesh Kumar : He deposed that on 06.11.2014, he alongwith Inspector Narender Singh and one police official of PS Sadar Rohtak reached at Katwara minor canal; that he (PW6) was informed that dead body of D. K. Aggarwal was recovered from that place; Sarpanch of the area namely Jai Bhagwan was called at the spot and at his instance, he took measurement and prepared rough notes; that his statement was recorded at the spot. Thereafter, he alongwith Inspector Narender returned back to Delhi; that on 18.11.2014, on the basis of rough notes and measurement, he prepared scaled site plan Ex.PW6/A.
7) PW-7 HC Rajesh Kumar, MHC(M), PS Jyoti Nagar : He deposed that on 24.08.2014, Inspector Narender Singh deposited eight sealed pullandas with seal of 'NS' and one Santro car bearing no.DL-9CG 0270; one Wagon R car bearing no.DL 8CAH 0216 and articles recovered in the personal search of accused Pradeep, Sanjeev Arora, Rakesh and Indervesh in PS; that on 25.08.2014, Inspector Narender Singh deposited six sealed pullandas and one Pulsar motorcycle bearing no.HR12W 6384.
PW7 further deposed that on 27.08.2014, Inspector Narender Singh deposited three sealed pullandas and he made entry in register no.19 at serial no.1210 i.e. Ex.PW7/C; that on 02.09.2014, Inspector Narender Singh deposited one sealed pullandas with the seal of 'NS' and articles recovered in personal search of accused Suresh Malik and he (PW7) made entry in FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 12 of 102 register no.19 at serial no.1215 i.e. Ex.PW7/D; that on 04.09.2014, Inspector Narender Singh deposited one sealed pullandas with the seal of 'NS' and receipt of PAN card and Aadhar card and he (PW7) made entry in register no.19 at serial no.1217 i.e. Ex.PW7/E. PW7 further deposed that on 29.09.2014, Inspector Narender Singh deposited one sealed pullandas with the seal of 'NS' and he (PW7) made entry in register no.19 at serial no.1262 i.e. Ex.PW7/F; that on 05.11.2014, Inspector Narender Singh deposited two sealed pullandas with the seal of 'NS' and he (PW7) made entry in register no.19 at serial no.1299 i.e. Ex.PW7/G; that on 01.04.2015, on the instructions of IO/Inspector Narender Singh, he handed over four sealed pullandas sealed with the seal of 'NS', three Hard discs and one Digital video recorder (DVR) to Ct. Raghvender to deposit the same in FSL, Rohini; he (PW7) prepared R/C bearing No.90/21/15 (Ex.PW7/H) in this respect; that on 17.11.2014, on the instructions of IO/Inspector Narender Singh, he handed over three sealed pullandas, two sealed boxes sealed and one sealed plastic jar to Ct. Devender to deposit the same in FSL, Rohini; that he (PW7) prepared R/C bearing no.52/21/14 i.e. Ex.PW7/K in this respect; that on 11.08.2015, result from FSL Rohini was received. After making entry of the same in register no.19 Ex.PW7/D in the relevant column, he had handed over the same to Inspector Narender Singh.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 13 of 1028) PW-8 Smt. Narinder Kaur, owner of Balaji Filling Station :
She is the witness of handing over the Hard disc of the CCTV recording of camera installed at the Balaji Filling Station and seizure of the same by IO on 29.09.2014 vide seizure memo (Ex.PW8/A).
This witness was cross-examined by Ld. Defence Counsels. During her cross-examination, she deposed that she had not put any password to operate this Hard disc; that the Police did not give her any notice to see the CCTV footage or to obtain Hard Disk; this hard disk was taken out from DVR by some other person who had accompanied Inspector Narender Singh; Police had told her that someone had taken petrol from her pump and he wanted to see the footage of the same; that prior to 29.09.2014, some other Police officials of the PS Jyoti Nagar had come and they had gone back after seeing the CCTV footage; that no name of any accused was mentioned while reading document Ex.8/A (seizure memo of Hard Disk) to her.
9) PW-9 Ct. Mahavir Singh, DD writer : He deposed that on 20.08.2014, at 1.55 PM, he received an information through wireless operator that father of the caller was kidnapped and he recorded this information vide DD No.48 B (Ex.PW9/A); that the said DD was marked to SI Dinesh Kumar who left for investigation along with Ct. Ajay Malik.
10) PW-10 Sh. Ashok Sharma : He is the witness of sample voice recording of Sh. Ashu Aggarwal (complainant) in the FSL, FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 14 of 102 preparation of one CD or tape of the same and preparation of document in respect of that CD/ tape which was signed by him i.e. seizure memo (Ex.PW10/A) of voice sample cassette. He deposed that mobile phone handed over by Ashu was a small black colour mobile phone of Intex company (Ex.PW10/Article-
1) and the cassette containing voice of Ashu is
Ex.PW10/Article-2.
11) PW-11 Dr. Dhruv Sharma, Assist. Director (Biology),
FSL, Rohini : He deposed that on 05.05.2015, nine sealed parcels in connection of the case FIR No.618/14 PS Jyoti Nagar were received in the office of FSL Rohini; and the same were marked to him for examination; that the seals on the parcel were intact and he examined these exhibits. He deposed that on examination, DNA profiles generated from source of exhibits 1a, 1b, 1c (clothes), 4 , 5(gauze piece from car), 7(panna) and 8(seat covers of car) were found to be similar; that DNA profile could not be generated from the source of exhibit 9(piece of bone). His detailed report in this regard is Ex.PW11/A.
12) PW-12 Sh. Anil Kumar Panchal : He deposed that he was the owner of plot no.147, Pocket H, Sector 2, Bawana, Delhi; that he had given the ground and first floor of the premises situated at the aforesaid address at a monthly rent of Rs.8800/- per month from 01.06.2014 to accused Sanjeev Arora and the rent agreement (Ex.PW12/B) was executed in this FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 15 of 102 behalf; that he handed over the rent agreement to the police and the same was seized vide seizure memo Ex.PW12/A.
13) PW -13 Retired. SI Virender Singh, Haryana Police :
He proved the FIR registered at PS Sadar Rohtak (i.e. FIR No.335/14, PS Rohtak Sadar) regarding murder of deceased vide its copy i.e. Ex.A1.
14) PW-14 Sh. Hemraj : He deposed that on 27.08.2014, he was working as Engineer at Pan Communication Pvt. Ltd.; on that day, a call was received at their office from CNG Pump, GT Karnal bypass; call was regarding removing the Hard disc from the CPU installed at that CNG Pump: that he handed over the Hard Disc from the CPU installed at aforesaid address; that he visited the petrol pump and took out the Hard Disc and handed over the same to the police.
This witness was cross-examined by Ld. Counsel for accused Sanjeev Arora. During his cross-examination, he admitted that he had not seen the footage which was obtained on that day. He further deposed that he neither gave any documentary proof regarding his employment as Engineer at Pan Communication Pvt, Ltd. nor the police asked for the same.
15) PW-15 Ct. Ajay Malik : He is one of the police official of the raiding party which was prepared to apprehend the abductors. However, the abductor had switched off his phone and refused to come to the alleged spot.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 16 of 10216) PW-16 ASI Bal Kishan : He deposed that on 27.10.2014, he alongwith Ct. Vedvir, complainant Ashu Aggarwal and one public person namely Ashok Sharma had visited FSL, Rohini, Delhi; that voice samples of complainant Ashu Aggarwal and accused Indervesh were taken in FSL, Rohini; that one original CD and one copy of voice samples were prepared in the said FSL, Rohini by the officials of the said lab. He prepared two separate pullandas of the original CD and copy of CD of voice samples of complainant Ashu Aggarwal and accused Indervesh; that the above said pullandas were taken into possession by him vide seizure memo Ex.PW16/A. He is also the witness of obtaining walking samples of four accused persons through Ct, Nitin Rana after taking due permission from the court by Insp. Narender Singh and preparation of two separate pullandas which were seized vide seizure memo Ex.PW16/B.
17) PW-17 HC Kuldeep Singh : He deposed that on 21.08.2014, an information was received in the Police station (PS Sadar, Rohtak) regarding a dead body of a male person lying in katwara minar (witness explained that minar means to make a passage with mud for water by making temporary way for water); that on receipt of this information, he alongwith SI Rambhaj reached there and found dead body of a person having bullet injury on his head; that SI Rambhaj recorded statement of Sarpanch Shri Jai Bhagwan and prepared rukka for registration FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 17 of 102 of FIR No.335/14, U/s. 302/201 IPC at PS Rohtak. After registration of said FIR, he returned to the spot and handed copy of FIR and rukka to SI Rambhaj; then, papers pertaining to dead body (panchnama) and documents for post mortem on the dead body of the deceased were prepared by the IO.
He (PW17) then took the dead body to Mortuary, PGI, Rohtak and handed over documents for the Post mortem, to the doctor and after the postmortem, a viscera box and parcel containing bone and sample seal were handed over to him by the doctor; he handed over the said parcels and sample seal to SI Rambhaj which were seized by him vide seizure memo Ex.PW17/A.
18) PW-18 HC Ved Vir : He is the witness of obtaining of voice sample of accused Indervesh in FSL Rohini, handing over of two CDs, one of them was original and another was of sample, by the FSL which was seized by seizure memo Ex.PW16/A. He is also the witness of taking walking sample of Indervesh by Ct. Nitin (Photographer) preparation of two CDs, one was original and another was its copy prepared by one constable namely Nitin (photographer) and seizure of the same vide seizure memo Ex.PW16/B.
19) PW-19 ASI Murari Lal : He is the witness of arrest of accused Suresh Malik in the present case vide arrest memo Ex.PW19/A and also of personal search of the accused Suresh Malik vide memo Ex.PW19/B. FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 18 of 102
20) PW20 Sh. Randhir Singh : He deposed that about three years ago, he was Sarpanch of Village Atail, Rohtak, Haryana; that there was a pig farm of Sh. Jagmender in his land; the said farm was situated on the road leading to Sampla from Village Pakisma; that there was only one pig farm in the village; that accused Indervesh is brother of Jagmender.
This witness was cross-examined by Ld. Addl. PP for the State and during his cross-examination, he deposed that it is correct that the land on which the Pig Farm is situated is an ancestral property of Jagmender and Indervesh; that he does not know whether ancestral property has been partitioned among the Indervesh and Jagmender.
This witness duly was cross-examined by Ld. Defence Counsel. During his cross-examination, he deposed that he had never seen accused Indervesh doing pig farming on the said Farm. He admitted that police never visited the said pig Farm in his presence and rather visited his residence.
21) PW21 Sh. Naresh Malik : He deposed that he was doing the business of stablizers at his residence with his brother Suresh Malik; the mobile no.93XXXXX338 was issued on his ID which was being used by him; that the said mobile phone was generally kept by him at his residence; He further deposed that it was not in his knowledge whether the said mobile phone was ever used by his brother Suresh Malik or not.
This witness was cross-examined by Ld. Addl. PP for the State. During his cross-examination, he deposed that he FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 19 of 102 had not stated to the police that the said mobile phone was used by his brother Suresh or that the said mobile phone was kept by him.
22) PW-22 SI Nitesh Bhardwaj, Police witness of Investigation: He deposed that on 24.08.2014, he joined the investigation of the present case alongwith Insp. Narender Singh. PW22 is the witness of arrest, personal search memo and recording of disclosure statement of accused Pradeep vide memos Ex.PW22/A, Ex.PW22/B and vide disclosure statement Ex.PW22/C respectively. He deposed that the accused Pradeep got recovered one Santro car bearing No.DL-9CG-0270 of white colour lying parked outside his house i.e. A-67; and he disclosed that the said car was used by them in commission of crime. He (PW22), further deposed that the FSL Team was called for the inspection of car and exhibits were lifted in the presence of FSL Team such as blood gauge, led of a bullet, shell of the bullet, seat cover having bloodstains and blood sample from the blood spot from the said car and all these exhibits were seized vide seizure memo Ex.PW22/D; that the said car was also seized vide seizure memo Ex.PW22/E, clothes of accused Pradeep were seized vide Seizure Memo Ex.22/F. PW22 is also a witness of recording of disclosure statements of accused Sanjeev Arora, Rakesh and Indervesh vide statements Ex.PW22/G, Ex.PW22K and Ex.PW22/N respectively, of arrest and personal search of accused Sanjeev Arora (Ex.PW22/H and Ex.PW22/J), Rakesh (Ex.PW22/L and FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 20 of 102 Ex.PW22/M); and accused Indervesh vide memos (Ex.PW22/O and Ex.PW22/P) respectively. He further deposed that in pursuance of disclosure of accused persons who were already arrested, one Wagon-R car bearing No.DL 8CAH 0216 was seized vide seizure memo Ex.PW22/Q; then, on 25.08.2014, all the aforesaid four accused persons led the police team to Pigri Farm and pointed out the said place where they had detained victim/ deceased vide pointing out memo Ex.PW22/R. PW22 is the witness of recovery and preparation of seizure memo (Ex.PW22/S) of one small carton box of green and orange colour which was lying in the shrubs of Keekar tree in the vacant plot adjacent to Pigri Farm, which was recovered at the instance of accused Indervesh which was found containing golden ring having diamond like stone, stated to be of deceased and preparation of site plan of that place vide memo Ex.PW22/R. PW22 further deposed that accused Rakesh got recovered one plastic bag from a room in Pigri Farm, in which one country made pistol was lying and it was found not loaded with any cartridge; the sketch (Ex.PW22/T) of that pistol was prepared and it was seized vide seizure memo Ex.22/U. PW-22 further desposed that the accused Pradeep got recovered one piece of cloth which was used by him to clean Santro Car after the incident and thrown by him near the wall of Pigri Farm, this cloth was seized vide seizure memo Ex.PW22/X; that the accused Indervesh was wearing same clothes during PC remand which he wore at the time of incident; these clothes were taken into FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 21 of 102 possession by providing other clothes to him (accused Indervesh) and the same were seized vide seizure memo Ex.PW22/Y. PW22 further deposed that all the accused persons led the police team to the spot where they had shot D.K. Aggarwal, site plan and pointing out memo of that place was prepared, thereafter, accused persons Rakesh, Indervesh and Pradeep led the Police Team to the place where they had thrown the dead body, separate pointing out memos (Ex.22/BB, Ex.22/BB1 and Ex.22/BB2) and site plan of that place (Ex.PW22/CC) was prepared by IO. Thereafter, all those three accused persons led the Police team to the spot where they had thrown the clothes of the deceased i.e. near Shamshan Ghat, Village Ridhana and the separate pointing out memo Ex.PW22/DD, Ex.PW22/DD-1 and Ex.PW22/DD-2 of that place were also prepared; that they (police team) also found at the instance of accused persons, pant, shirt, vest, underwear and one chappal and the same were seized vide memo Ex.PW22/EE; that site plan Ex.PW22/FF of that place was also prepared.
Thereafter, accused persons led the police team to Lakhan Majra, where accused Rakesh had thrown wrist watch and mobile phone (after breaking it) of deceased but no mobile phone or wrist watch were found there; that on 27.08.2014, PW22 again joined the investigation with IO and other police staff while accused Indervesh and Sanjeev Arora were with them and accused Rakesh was left in PS; that accused Indervesh led the police team to CNG Pump, G. Enterprises at G. T. Road about 2 km from Mukarba Chowk and pointed out at that CNG pump FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 22 of 102 from where they filled CNG in their car; IO made enquires from the staff present there about the CCTV footage of 20.08.2014.
PW22 further deposed that Hard disk of CCTV camera containing footage of 20.08.2014 was checked and found accused Suresh Malik and Indervesh were visible in it at about 03.30 pm; that said hard disk was seized vide seizure memo Ex.PW22/JJ and site plan of that CNG Pump Ex.PW22/KK was also prepared. Thereafter, accused Sanjeev led them to a factory i.e. Sec.2, Bawana Industrial Area where deceased was confined and Pointing out memo Ex.PW22/LL of that place was prepared; that accused Sanjeev Arora also got recovered one ring of silver colour of deceased from said factory and same was seized vide seizure memo Ex.PW22/MM and site plan Ex.PW22/NN of that place was also prepared. Thereafter, the CCTV cameras which were installed at adjoining factory in which the portion of the factory, where deceased was detained, was visible, the hard disk of those CCTV cameras was checked for 20.08.2014 and the said hard disk was seized vide seizure memo Ex.PW22/OO; that accused Sanjeev Arora led police team to Balaji Petrol Pump- cum-CNG station from where they filled fuel in their cars and exchanged their cars and accused Sanjeev had taken Wagon R Car from accused Suresh Malik and accused Suresh Malik had taken Santro Car of accused Sanjeev; that pointing out memo Ex.PW22/PP and site plan Ex.PW22/QQ of that place were prepared.
He (PW22) further deposed that on 03.09.2014, accused Suresh Malik was interrogated and facts disclosed by FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 23 of 102 him were recorded vide his disclosure statement Ex.PW22/RR; that on 04.09.2014, PW22 alongwith IO and accused Suresh Malik and other Police staff joined investigation and on that date, accused Suresh Malik led them to Pigri Farm and on reaching there, accused Suresh Malik got recovered one golden colour ring of deceased, his PAN Card and one Aadhaar Card Form of deceased having photograph of the deceased and the pointing out memo of said Pigri Farm Ex.PW22/SS was prepared; that said golden ring and those documents were seized vide seizure memo Ex.PW22/TT; site plan Ex.PW22/UU of place of recovery was also prepared; then, accused Suresh Malik led police team to spot where they had shot deceased, that place is on the road after crossing Braham Vaas to Khandwali and the Pointing out memo Ex.PW22/VV and site plan Ex.PW22/WW of that place, were prepared.
PW22 identified the following case property i.e. alleged clothes of the deceased, clothes of accused Rakesh and Pradeep which they were alleged wearing on the day of incident; Paana and two pieces of seat covers recovered from Santro Car; Country made pistol and one plastic bag of SUPLEX of orange colour which was got recovered by accused Rakesh from Pigri Farm; one shell of cartridge recovered from Santro Car; one deformed bullet allegedly recovered from Santro Car; one piece of Cloth, ring, PAN Card and acknowlegement receipt of Aadhar Card got recovered by accused Suresh Malik from Pigri Farm; ring of golden colour having shining stone wrapped in white page which was got recovered by accused Indervesh from a place FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 24 of 102 adjacent to Pirgi Farm; one Silver ring having blackish stone wrapped in white page which was got recovered by accused Sanjeev Arora and one Orange colour cloth which is stated to be used to clean the Santro Car, clothes of accused Indervesh (Ex.PW22/P1 to Ex.PW22/P15).
PW22 also identified the Wagon R Car, Santro Car and one Pulsar Black Colour motorcycle; that as per record, Wagon-R car is on superdari released to the brother of accused Suresh Malik and Pulsar motorcycle to the cousin of accused Rakesh and identity of these vehicles is not disputed. PW22 also identified the Santro car through its 04 photographs Ex.PW22/P16/A1 to A4.
This witness was duly cross-examined by Ld. Defence Counsels. During his cross-examination, PW22 deposed that he had no knowledge if the name of the accused Pradeep had come in the version of any of the witness or anywhere; that he was not briefed by IO on 24.08.2014 as to what facts were to be interrogated from accused Pradeep; that he was not informed by the IO as to for what purpose accused Pradeep was brought to the police station; that the Santro Car was found locked; that he does not remember from where and how the keys of Santro car were procured by IO; he again said that he does not remember how the car was opened as to whether it was opened with key or otherwise; that he does not recollect if the car got opened prior to arrival of FSL team or thereafter; He further deposed that IO was desperately trying to open the car; that the place from where Santro Car was recovered is the residential area. IO asked some FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 25 of 102 residents of locality to join the proceedings but none agreed. Even one shopkeeper was also asked to join the proceedings but he closed the shop and left the spot; that no notice was served to residents who refused to join the proceedings; that he does not remember if the place of recovery of Santro Car got Videographed or not; that Inspector Narender did not make any effort to ascertain who was the owner of said Santro Car, on reaching there; that he does not know if the said Pigri Farm was locked or lying opened when they reached there; that the said Pigri Farm was made in a plot measuring more than 1000 sqr. Yards; that there was a boundary wall and a main gate. On the right side of entrance, there were two rooms and from the middle of the plot the shed for pigs and both these rooms were lying opened and not locked; that in his presence, no efforts were made by the IO to lift the chance prints and no crime team was called to inspect the said place (room of Pigri Farm); that the two three residents from nearby village also reached at the spot on seeing the presence of police: no videography of the said Pigri Farm was got conducted at the time of recovery; that the public persons were not asked by the IO to sign the seizure memo allegedly prepared at Pigri Farm; that they reached at Bawana Factory between 02:00 pm -03:00 pm from CNG Pump; he does not remember if any public person met them there or not; one woman was called by the IO who was present at nearby Tea Stall and she claimed herself to be the owner of the said Tea stall; however, he does not remember if the said woman was joined in the investigation by the IO or not; that there was CCTV cameras in FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 26 of 102 the adjacent factory in Bawana where they had gone for investigation; that he does not know whether any footage of those CCTV cameras were checked by the IO or not; that in his presence, the IO had not asked any public person to join the investigation either at the Minor canal or at the Pigri Farm and Shamshan Ghat, near Village Ridhana; that he does not recollect about the sequence of recording the disclosure statement of accused persons. He deposed that the area of said Pigri farm was more than 1000 sq. Yards; that there were two constructed rooms at the above said Pigri Farm and remaining area was vacant having 'bada' for pigs; that there were pigs in the said bada, but he does not recollect the number of pigs; that there was no residential area near the pigri Farm; it was surrounded by open fields; that those fields were lying vacant without crop and the surrounding area of pigri Farm was accessible to public persons.
23) PW23 SI Dinesh Kumar, Ist IO of the case : He deposed that on 20.08.2014 on receipt of DD No.48B (Ex.PW9/A) regarding kidnapping of father of the caller at PS, he alongwith Ct. Ajay Malik reached at spot and complainant Ashu Aggarwal met them; he (PW-23) recorded statement of Sh. Ashu Aggarwal i.e. Ex.PW2/A, prepared rukka and sent Ct. Ajay Malik to PS to get the present case FIR registered; that he also recorded the statement of Inderpal (driver of victim) U/s 161 Cr.PC. Thereafter, four raiding parties were constituted as per directions of Sr. officers; 4-5 raiding teams were constituted; that he was informed by complainant that he had received a FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 27 of 102 ransom call and was asked to give money at his office i.e. Yamuna Vihar. Then, he alongwith Ct. Ajay and complainant went to the office of complainant and they sent the complainant inside the office; they laid trap outside the office but no one came to collect money; after about 10 minutes, they were informed by the complainant that he has received another information to give money at a spot after crossing at Wazirabad bridge; then, they went there and on the way, when they reached at Wazirabad Bridge, complainant received a phone call and the caller informed him not to come at that place then, they returned; he recorded supplementary statement of complainant in this regard; on the next day, he recorded statement of Naresh Malik, brother of accused Suresh Malik as his mobile phone number was being used by his brother.
24) PW24 Retd. Insp. Gyanender Singh, Sr. Finger Print Expert : He has deposed that that he had examined all the chance prints marked as Q1 to Q12 and found the chance print marked Q3 was identical with specimen right thumb impression marked S-2 of the finger impression slip of Pardeep @ Jeetu; that chance print marked Q5 and Q8 were identical with specimen right middle finger impression marked S-1 on the finger impression slip of Pardeep @ Jeetu; that chance print marked Q1, Q6, Q7, A9 and Q11 were either partially superimposed or smudged and do not disclose sufficient number of ridge detail; that his detailed report dated 19.11.2014 in this regard is Ex.PW24/A. FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 28 of 102 This witness was duly cross-examined by Ld. Defence Counsel. During cross-examination, he deposed that he cannot say if the exhibits were received in their office in sealed condition or otherwise but when the exhibits were marked to him for analysis, they were not sealed.
25) PW-25 HC Manish : He deposed that on 29.09.2014, he joined investigation in the present case alongwith Insp. Narender Singh and Ct. Danveer; that during investigation, they reached at Balaji Filling Station near Jahangirpuri Metro Station, Mahender Park, Delhi where the owner of filling station Smt. Narender Kaur met them where the IO checked the CCTV footage of CCTV camera of dt. 20.08.2014; that the hard disk in which the aforesaid CCTV footage was stored was taken into police possession and same was seized vide seizure memo Ex.PW8/A. Thereafter, they reached at the house of complainant Ashu Aggarwal at Shivashish Apartment, West Jyoti Nagar, Delhi and the mobile phone of Intex dual sim was also taken into police possession; that his statement with regard to the same was recorded in PS and the said mobile phone is Ex.PW10/A/Article-1.
This witness was cross-examined by Ld. Defence Counsel. During his cross-examination, he deposed that when the CCTV footage was checked by the IO, Smt. Narender Kaur, he (PW25) were present in the cabin, though, he was present in the cabin, but he had not seen the footage.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 29 of 10226) PW-26 HC Nitin, Photographer : He deposed that on 05.11.2014, he was called by the IO Insp. Narender Singh in the court no.52, when he reached there, he was taken to Lockup of KKD Courts for video recording of walking style of four accused persons; accordingly, he recorded the same and CD of that video recording was prepared which was handed over to IO Insp. Narender Singh; the same was sealed and seized by the IO vide seizure memo Ex.16/B.
27) PW27 Dr. Satyawan, Deputy Civil Surgeon, Rohtak : PW 27 is the doctor who conducted Postmortem of the deceased. He deposed that he found following injures on the body of the deceased :-
"1.LW of size I XI over left parietal region. Blackening of area around injury of diameter 2X2 cm. Margins inverted. Wound is 6 cm distance from left ear, 8 cm from mid line, 4 cm from lateral angle of eyebrow. On exploration track is going horizontally and backward. On dissection of skull beveling of inner table present track passing through left cerebral hemisphere to right hemisphere to left side of skull and exit would of size I XI cm present over right parietal region, three cm posterior to right ear, 14 cm from midline and 14 cm from right eyebrow lateral and commuted fracture going in direction parietal occipital bone. 2. Abrasion of size 1X1 cm present over left shoulder. 3. Abrasion of size 5X4 cm present over left elbow posteriolateral aspect. 4. Abrasion of size 3X2 cm present over right scapular region. 5. Abrasion of FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 30 of 102 size 2X3 cm present over right elbow. 6. Multiple abrasion of varying size present over right hand of sizes 0.1X1cm to 0.2X3cm. 7. Multiple abrasion of varying size present over left flank of abdomen. 8. Multiple abrasion of varying size present over right arm from size 7X1 cm to 1X0.1 cm. The visra was preserved for chemical MLC."
PW27 also deposed that the Cause of death was due to fire arm injury and its complications which were antemortem in nature and sufficient to cause death in normal course of nature. Injury no. 1 is sufficient to cause death in ordinary course of nature. Time between death and postmortem examination was 12 to 36 hours.
The Detailed postmortem report is Ex. PW-27/A.
28) PW28 Sh. Rajiv Vashisht, Nodal Officer, Bharti Airtel Ltd.: He deposed that he is conversant with the handwriting and signature of Sh. Rajiv Ranjan, the then Nodal Officer in Tata Tele Services (now, taken over by Bharti Airtel); that he had seen the CDR of mobile no.9210845661 which was issued in the name of Sh. Sanjeev Arora, r/o B-82, A Block, Majlis Park, New Delhi. The CDR is running into 23 pages for the period 20.07.2014 to 24.08.2014 is Ex.PW28/A1 to Ex.PW28/A23 (colly); that he had also seen the certificate Ex.PW28/B U/Sec. 65 of Indian Evidence Act issued by Sh. Rajiv Ranjan. The location chart of Mobile No.9210845661 and its certified copy is Ex.PW28/D1.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 31 of 10229) PW29 Sh. Ajeet Singh, Alternate Nodal Officer, Vodafone Idea Ltd. : He deposed that he has seen Customer Application Form (CAF) of mobile no. 9911279241 which was issued in the name of Pradeep s/o Sh. Itwari r/o K-314, K Block, Jahangirpuri, Delhi and CDR of aforesaid mobile number w.e.f. 15.08.2014 to 20.08.2014 running into one page only alongwith location chart on one page; the said CDR is Ex.PW29/A (colly) duly attested by Sh. Praveen Kumar, Alternate Nodal Officer of Idea Cellular Ltd.; that he had also seen the certificate under Sec. 65B of I.E. Act issued by Sh. Praveen Kumar is Ex.PW29/B; that he had also seen the CDR Ex.PW29/C of mobile number 8860689172 issued in the name of Pradeep s/o Itwari r/o K-314, K Block, Jahangirpuri, Delhi w.e.f. 20.07.2014 to 25.08.2014 and he had also seen the certificate Ex.PW29/D under Sec. 65B of I.E. Act issued by Sh. Anuj Bhatia; that he had also seen the CDR (Ex.PW29/E) of mobile number 9811789800 issued in the name of Ashu Kumar Aggarwal s/o D.K. Aggarwal r/o A-3, Shivashish Apartment, GF-1, West Jyoti Nagar, Delhi w.e.f. 20.07.2014 to 24.08.2014 running into 15 pages and he had also seen the certificate Ex.PW29/F under Sec. 65B of I.E. Act issued by Sh. Anuj Bhatia.
PW29 further deposed that he had also seen the CDR Ex.PW29/G of mobile number 9711282862 issued in the name of Ankit Gupta, s/o Padam Prakash Gupta s/o F-47, Niti Khand, Indirapuram, Ghaziabad, UP w.e.f. 20.07.2014 to 24.08.2014 running into three pages and certificate Ex.PW29/H under Sec. 65B of I.E. Act issued by Sh. Anuj Bhatia; that he had FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 32 of 102 also seen the CDR of mobile number 9312221338 Ex.PW29/J issued in the name of Naresh Kumar Malik, s/o Balbir Singh Malik, r/o B-5, Gali No.18, Mahendra Park, Sanjay Nagar, Adarsh Nagar, Delhi-110033 w.e.f. 15.08.2014 to 20.08.2014 running into four pages and had seen the certificate Ex.PW29/K under Sec. 65B of I.E. Act issued by Sh. Anuj Bhatia.
PW29 had brought the location chart Ex.PW29/L of mobile number 9811789800 (Ashu Kumar Aggarwal), 9312221338 (Naresh/ Suresh Malik) and 8860869172 (Pradeep); that he had brought the common location chart Ex.PW29/L of mobile numbers pertaining to Delhi and Haryana Circle of Vodafone Idea Ltd.
30) PW30 Sh. Amit Sharma, Nodal Officer, Reliance Communication, Ltd. : He deposed that he had seen Customer Application Form (CAF) of mobile no. 9311767048 which was issued in the name of Dinesh Kumar Aggarwal, s/o Ramchander Sahai Aggarwal r/o A-3, West Jyoti Nagar, Delhi and had seen the CDR of aforesaid mobile number w.e.f. 20.07.2014 to 26.08.2014 running into 20 pages and the same is Ex.PW30/A (colly) duly attested by Sh. Jyotish Kumar Anand, the then Nodal Officer for MTS Company; that the said MTS Company was taken over by Reliance Communication Ltd. in the month of October 2017; that he had also seen the certificate Ex.PW30/B under Sec. 65B of I.E. Act issued by Sh. Jyotish Kumar Anand.
This witness was cross-examined by Ld. Defence Counsel. During his cross-examination, he deposed that no FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 33 of 102 notice u/Sec. 91 Cr.P.C. regarding the mobile number i.e. 9311767048 has been placed on record and the location cell ID chart of mob. no. 9311767048 (mobile number of Dinesh Kumar Aggarwal, the deceased) is not on record. PW30 further deposed that he cannot produce the cell ID Chart of the aforesaid mobile number as same is not available in their office.
31) PW31 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd : He deposed that he had seen the CAF Ex.PW31/A in respect of mobile No.9996486845 which was issued in the name of Rajbir s/o Birbal r/o H.No.793, VPO, Khar Tehsil, Distt. Lahori, Distt. Bhiwani, Haryana; that the CDR of the above said mobile number w.e.f. 15.08.2014 to 20.08.2014 is Ex.PW31/B; that the certificate u/s Section 65B of Indian Evidence Act issued by Sh. Vishal Gaurav i.e. Ex.PW31/C upon which PW31 identified his signature; the CAF Ex.PW31/D of mobile No.9729660601 was issued in the name of Rakesh Kumar s/o Jagdish; the CDR of the this mobile number w.e.f. 15.08.2014 to 20.08.2014 is Ex.PW31/E; the certificate u/s Section 65B of Indian Evidence Act is Ex.PW31/F; that the location chart of the this mobile number is Ex.PW31/G and the location chart of mobile no 9996486845 is Ex PW31/H.
32) PW 32 Sh. V. R. Anand, Assistant Director, FSL, Rohini: He deposed that he has examined the exhibits EB1 i.e. deformed bullet, EC1 i.e. one cartridge case and F1 i.e. improvised pistol and found that the improvised pistol was in working order and FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 34 of 102 test fire conducted successfully; that the 7.65 mm cartridge case EC1 was a fired empty cartridge and the deformed bullet Mark Ex.EB1 corresponded to the bullet 7.65 mm cartridge; Five 7.65 mm cartridges received for test firing were test fired through the improvise pistol; that the test fired cartridge cases were marked as TC1 to TC5 and recovered bullets were marked as TB1 to TB5. The four recovered fragmented part of jacket were marked as TJ1 to TJ4.
PW32 further deposed that the individual characteristics of firing pin and breech face marks present on EC1 and on TC1 to TC5 were compared under comparison micro scoped and were found identical and hence, the cartridge case EC1 had been fired through the improvised pistol Mark Ex.F1; that the individual characteristics of striation marks present on EB1 and on TB1 to TB5 were compared under comparison micro scoped and were found identical. Hence, the evidence bullet marked Ex.EB1 had been discharged through the improvised pistol Mark Ex.F1; that the exhibits F1/EC1 and EB1 were firearm / ammunition as defined in Arms Act, 1959. All the exhibits were sealed with the seal of VRAFSL, Delhi after examination. PW32 deposed that his detailed report dated 20.07.2015 is Ex.PW32/A.
33) PW33 Dr. M. Baskar, Director CFSL, Bhopal : He deposed about the examination of hard disk (which was allegedly containing the CCTV footages of petrol pump / CNG FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 35 of 102 fuel pump). PW33 deposed about the result of examination of these hard disks.
Result of examination :- The exhibits-HD1, HD2 and HD3 were not accessed by the exhibits-DVR-1 and DVR-2 due to the exhibits-DVR-1 and DVR-2 were not the DVRs used to record the CCTV footage in the exhibits-HD1, HD2 and HD3. The exhibits-DVR-1 and DVR-2 are new DVRs; that after examination the parcel(s) containing the exhibits/remnants have been sealed with the seal impression CFSL PHYSICS CHANDIGARH. PW33 deposed that his detailed report is Ex.PW33/A.
34) PW34 Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi : He deposed that on 17.11.2014, three sealed parcels were received in the office of FSL Rohini; that the seals on the parcels were intact and tallied with the specimen seal as per forwarding memo; that on opening the first parcel which was found sealed in the seal of "NS" at two places, one audio cassette was found and the same was marked as Ex. 1 in the laboratory. The audio cassette was make "T-series"containing specimen speech sample of Sh. Indervesh. The speaker (Indervesh) of the specimen sample was marked as S1 in the laboratory; that on opening the second parcel which was found sealed in the seal of "NS" at two places, one audio cassette was found and the same was marked as Ex. 2 in the laboratory; that the audio cassette was make "T-series" containing specimen speech sample of Sh. Ashu Aggarwal. The speaker (Ashu FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 36 of 102 Aggarwal) of the specimen sample was marked as S2 in the laboratory.
PW34 deposed that on opening the third parcel which was found sealed in the seal of "NS" at six places, one mobile phone Ex. 3; that the mobile phone was of make "INTEX GOLD-7" having micro SD card of 2 GB capacity. The micro SD card was found containing one relevant audio file. The speaker starts with "...hello ..kahan pahunch gaye..." Ex. Q1 and the speaker starts with "...hellow..bhaiya bas chal rahe he.." Ex. Q2 in file namely "SIM1_20140101003753" in the laboratory; that the auditory analysis of recorded speech samples of speakers "Ex.Q1" & "Ex. S1" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker "Ex. Q1" are similar to the voice exhibits of speaker "Ex. S1" in respect of their acoustic cues and other linguistic and phonetic features; that the auditory analysis of recorded speech samples of speakers "Ex.Q2" & "Ex. S2" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker "Ex. Q2" are similar to the voice exhibits of speaker "Ex. S2" in respect of their acoustic cues and other linguistic and phonetic features. PW34 therefore, opined that the voice exhibit of speakers "Ex. Q1" and "Ex. S1" are the probable voice of same person (i.e. Sh. Indervesh); that he further opined that the voice exhibit of speakers "Ex. Q2" and "Ex. S2" are the probable voice of same person (i.e. Sh. Ashu Aggarwal).
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 37 of 102He further deposed that after examination the exhibits were resealed with the seal of "Dr. C.P. SINGH-FSL- DELHI"; that he had given his detailed report (Ex.PW34/A) No. FSL 2014/P-8420/PHY-375/14 dated 29.10.2015; that after seeing the said cassette Ex.1, PW34 deposed that said cassette has been examined by him and the same is Ex. PW34/Article-1; that after seeing audio cassette mentioning Ex. 2, PW34 deposed that the said cassette was also examined by him and same is Ex. PW10/Article-2; that after seeing the INTEX mobile phone along with battery and micro SD card, he dentified the said mobile phone which was examined by him and the same is Ex. PW10/Article-1.
35) PW35 W/ASI Mukesh : She proved DD record of DD No. 29B (Ex.PW35/A (OSR)), dated 23.08.2014 which was recorded by Duty Officer W/HC Urmilla (since expired); that as per the said record, Inspector Sundar Lal, IC Special Staff had informed that one dead body was found in the area of PS Sadar Rohtak, Haryana regarding which an FIR No. 618/14, U/s. 364A/506/34 IPC has been recorded at PS Jyoti Nagar, Delhi; that the said information was passed on to Inspector Narender Singh who is the IO of the present case.
36) PW-36 ASI (Retd.) Shyamlal, Photographer : He deposed that he clicked 8 photographs (Ex.PW-36/A1 to A8) of the vehicle i.e. white color Wagon R bearing registration No.DL 8CAH 0216 from different angles and after developing the said FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 38 of 102 photographs, he deposited the same at his office. The negatives of the said 8 photographs are Exhibits PW 36 / A9 to A 16.
36.A) PW-36 A Insp. Sanjeev Sharma: He deposed that in April, 2015, he received the present case file for further investigation; that the exhibits of the present case was already sent to FSL office by previous IO; that he only filed supplementary chargesheet after receipt of FSL result in the present case and he did not record statement of any witness.
37) PW37 Insp. Jai Bhagwan : He deposed that on 30.10.2017, he had prepared a supplementary charge-sheet regarding the result of CFSL Chandigarh received in present case FIR.
38) PW-38 Inspector Narender Singh, Main IO of this case : PW38 is the main IO of the case who has deposed on the similar lines as of PW22 SI Nitish Bhardwaj. PW38 deposed that the complainant Ashu Kumar was continuously receiving the calls on his mobile phone from the mobile phone of his father, it appeared that caller was demanding Rs.3 Crore as ransom from the complainant; that the father of the complainant was kidnapped by the accused persons and the complainant received about seven ransom calls from the accused persons on his mobile phone which were made from the mobile phone of his father; the father of the complainant was in the custody of accused persons; that the complainant was insisting the callers to get talk FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 39 of 102 with his father but they were denying; the complainant received last call at about 6.00/6.06 PM on 20.08.2014 and same was got recorded by the complainant in his mobile phone and to know the source of any location of the caller, they were in continuous touch with the crime branch and special cell and they came to know that the location of caller was near Karnal bypass/Bawana Industrial Area/Bahalgarh Industrial and near the border of Haryana but no clue was received against the alleged kidnapper/accused persons.
PW-38/ IO further deposed that on 22.08.2014, investigation of this case was marked to him; that on receipt of the same, he examined the documents on record; he made inquiry from Inderpal who is the driver of Shri Dinesh Kumar (deceased) and came to know that in the morning of 20.08.2014, deceased Dinesh Kumar had stated that he would go somewhere with accused Suresh Malik; the accused Suresh Malik was working with the son of the deceased in connection of the MCX; that he (IO/PW38) also came to know that the complainant Ashu and the accused Suresh Malik had some transactions regarding sale purchase of flats; the accused Suresh Malik was well aware to the complainant and his deceased father; that they tried to contact accused Suresh Malik on his mobile phone but it was switched off; they also visited the house of accused Suresh Malik but his whereabouts were not known to his family members; that he (PW38) collected the call details of the accused Suresh Malik and he examined the same; on analysis of the call details, they found that accused Suresh Malik was in FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 40 of 102 continuously touch with accused Pradeep as well as accused Sanjeev Arora, Rakesh and Indresh. Then, he called Pradeep in the PS and interrogated him; then, he also called other accused persons namely Indresh @ Master, Rakesh and Sanjeev Arora and interrogated them; that on interrogation, all the said accused persons confessed their involvement in the present case along with accused Suresh Malik and they told that accused Suresh Malik was the mastermind of the incident.
PW-38 further deposed about the recovery of Santro Car at the instance of accused Pradeep which was allegedly used in the commission of offence in this case, lifting of exhibits, chanceprints, seat covers, blood stains, front led of fired bullet, empty cartridge case, Paana, seizure of the same and sending the same to FSL for examination.
PW-38 further deposed that he collected the relevant documents including copy of FIR Ex.DY of PS Sadar, Rohtak where the dead body of the victim was recovered, seizure memo of parcel of viscera and parcel of bones along with envelope Ex.PW17/A and Postmortem report Ex.PW27/A, including other papers placed on record which are PW-38/E (collectively).
PW38 further deposed about recoveries made at the instance of the accused persons pursuant to their disclosure statements i.e. recovery of pistol from a room of Piggery Farm at the instance of accused Rakesh, recovery of ring of the deceased from the bushes in the adjacent field of Pig Farm, at the instance of the accused Indervesh, recovery of Black coloured Pulsor motorcycle of accused Rakesh at the instance of accused FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 41 of 102 Rakesh, recovery of cloth which was allegedly used for cleaning the Santro Car at the instance of accused Pradeep, pointing out of the place of murder and throwing of dead body allegedly by the accused persons, recovery of clothes and one chappal of the deceased at the instance of accused persons and recovery of another ring at the instance of accused Sanjeev Arora and then, recovery of one more ring, PAN Card, Aadhar document of the deceased, photographs of the deceased at the instance of accused Suresh Malik. During the investigation, PW38 also got conducted the TIP of the case property i.e. three rings of the deceased which were recovered at the instance of the accused persons from their possession and collected the copy of the TIP proceedings Ex.PW38/V; during the investigation, PW38 got deposited all the parcels of the case property/ exhibits which he seized during investigation in the Malkhana and sent the same to FSL/CFSL for expert opinion; that he also recorded the statement of PWs who remained with him during investigation and were connected to this case; that after completion of investigation, he prepared the chargesheet and sent the same to the Court through SHO for trial.
PW38/ Main IO Inspector Narender Singh was duly cross- examined by Ld. Defence Counsels. During his cross- examination, PW38 deposed that he does not remember if the recording of ransom call was recorded by Ashu in his mobile phone in his presence. He admitted that no ransom call was recorded by the complainant in his presence and then deposed (in his voluntarily portion) that only last ransom call was FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 42 of 102 recorded in his presence in the mobile phone of the complainant Ashu.
PW38 further deposed during his cross-examination that he does not remember the name of the officials/officers of the Crime Branch who were asked to give the details/link of the alleged accused persons. He also does not remember now as to who was called firstly by him to join the investigation. He further does not remember the date on which I came to know about the business transaction between accused Suresh Malik and Ashu, however, he came to know about the business of accused Suresh Malik from Ashu. He also does not remember the date and time when he tried to contact Suresh Malik on his mobile phone; that he does not remember as to from whom, he got the mobile number of the accused Suresh Malik.
He further deposed that no documentary evidence was produced by the complainant to show that accused Suresh Malik used to invest the money with him in MCX Trading business. He admitted that during investigation, no such documentary evidence was collected by him. He further deposed that at the time of recording, the last ransom call at around 6 PM on 20.08.2014, he was present in the vicinity. He further deposed that he could not tell as to who else was present with him at that time. He further deposed that the said last ransom call was neither received nor recorded at the house or office of the complainant however, he does not remember the exact time and location or area where they were present when the last ransom call was received by the complainant; that no photography or FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 43 of 102 videography was conducted at the house of accused Pradeep at the time of recovery of clothes of accused. He (IO) denied that Santro car was not recovered at the instance of accused Pradeep but he admitted that he did not record the statement of family members of the accused Pradeep qua the proceedings of the recovery of Santro car and the clothes of the accused Pradeep. He deposed that he cannot tell the sequence by which disclosure statement of the accused persons were recorded however, the disclosure statement of accused Pradeep was recorded first. He denied that he does not remember the time of recording of the disclosure statement of the accused persons as the same were never recorded or they obtained the signature of the accused persons on some blank paper and subsequently manipulated the same.
IO deposed that he does not remember now if there were pigs available in the farm or not; that he could not tell the name and addresses of those 1-2 persons who met him in the Pigri Farm. He also deposed that relatives of the Suresh Malik met them there in the house of accused Suresh Malik and relatives were asked to join the investigation however, they refused to join the same. He also deposed that no notice was issued to them for refusing to participate in the investigation; that he does not remember whether he had recorded the statement of two public persons who met him in Pigri Farm. He did not cite them as a witness in this case; that they did not join the investigation despite his request; that he does not remember whether those rooms were were opened or latched. He further FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 44 of 102 deposed that Pigri Farm was surrounded by fields and the left side field of the Pigri Farm was not having any crop or harvest however, other surrounding fields having crop. He deposed that there was movement of farmers in the nearby field. He voluntarily deposed that there was road adjoining to the Pigri Farm where there was movement of public persons and vehicle. He admitted that the Pigri Farm is an accessible area.
PW38 further stated that he does not remember as to how the motorcycle was brought to PS Jyoti Nagar, Delhi. He stated that no photography or videography was made during the recovery of the case property from the Pigri Farm. He denied the suggestion that the accused Pradeep has been falsely implicated and nothing was recovered from him or at his instance. He admitted that the no videography or photography was made regarding the recovery of the case property from accused Pradeep. He further admitted that no public witness was joined in the investigation at the time of recovery of case property from accused Pradeep. He further admitted that no one from the Sharma Electronic Shop and wine shop was called to join the investigation during their stay there. He has admitted that he did not record the statement of any witness there. He does not remember whether any of the worker from the factory of Shri Harinder Singh was joined in the investigation or not. He does not remember whether Shri Harinder Singh had been made Prosecution witness in the present matter or not. He further deposed that no one from the office of Crime Branch, R.K. Puram was joined in the investigation of this case. He does not FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 45 of 102 remember as to how and from where he procured the clothes for the accused Suresh Malik for changing the clothes which he was wearing. He could not tell whether the said disclosure statement of accused Suresh Malik was typed on official or personal laptop or on computer of SI Nitesh. He does not remember whether he had recorded the statement of any public person/police staff during the investigation at aforesaid all three pointing out places i.e. at Balaji Petrol Pump, CNG Petrol Pump, Factory No. H- 147, Sec. 2, Bawana Industrial Area and CNG Petrol Pump.
PW38 denied the suggestion that nothing was recovered from accused Suresh Malik. IO/ PW38 and stated that no videography or photography of the recovery of the case property at the instance of accused Suresh Malik as well as the pointing out the places, were not conducted; that he had not recorded statement of any public persons/police staff official during the aforesaid investigation i.e. their visit at Piggery Farm and Khidwali during their stay there. He deposed that the spot where accused Suresh Malik threw his mobile phone was on road where one private university was situated on right side and opposite to that, one road was going and farms were situated on both sides of the road. He had not recorded any statement of any public person or the police staff at the said spot. No videography/ photography was done at the said spot. He admitted that Bhoop Singh and Satbir, villagers of Khidwali were not joined the investigation of this case by him. He also admitted he had not recorded their statement. He also admitted that he had not collected CCTV footage of the camera installed FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 46 of 102 nearby house of deceased D. K. Aggarwal. He then voluntarily stated that no such camera was found installed there in the vicinity of house of deceased. He admitted that no public person or the nearby shopkeepers of the area where the accused Pradeep and Suresh Malik were waiting for the deceased, joined in the investigation as none agreed despite his request. IO/ PW38 admitted that no person from the factory of accused Sanjeev Arora was examined and joined investigation. He admitted that he had not recorded the statement of wife of the complainant Ashu in the present case. He denied the suggestion that no pointing out of the place was done by any of the accused persons or that all the pointing out memos had been prepared by him on his own. He admitted that statement of any other relative of accused Indervesh was not recorded to prove that accused Indervesh was using the abovesaid mobile number which is registered in the name of Rajbir.
39) PW39 Retd. SI Virender : PW39 is a Duty officer who recorded FIR i.e. FIR No. 335/2014 (Ex.DY) u/s 302/201 IPC, PS Sadar Rohtak, on 21.08.2014, on the basis of rukka received from HC Kuldeep sent by SI Rambhaj; that FIR was registered on the basis of statement of Sarpanch Jai Bhagwan S/o Sh. Dayanand, Village Khedwali regarding finding of a dead body facing towards earth (ulte muh) at Katwada Minor wa hadd raqua Khedwali; that the dead body was found having gunshot injury on his temple (kanpati); that after registration of above stated FIR, he handed over the copy of FIR and original rukka to FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 47 of 102 HC Kuldeep to hand over the same to Late SI Rambhaj for investigation; PW39 identified the handwriting and signature of IO /SI Late Sh. Rambhaj on the inquest papers Ex. PW39/D2, D3, D4 proceedings / documents prepared by SI Rambhaj at the spot of recovery of dead body Ex. PW39/D7 to D9, regarding seizure of Viscera, preservation of dead body in mortuary for 72 hours, issuances of notices / publications of dead body Ex. PW39/10, on statement of Sh. Ankit Gupta regarding identification of dead body Ex. PW39/11, seizure memo of parcel of shishi-pani Ex. PW39/13.
This witness was cross-examined by Ld. Defence Counsel. During his cross-examination, he admitted that the documents were not prepared by the SI Rambhaj in his presence.
4. Ld. Counsels for respective accused persons did not dispute the TIP proceedings conducted on 13.11.2014, recording of FIR No.335/2014 U/s 302/201 IPC PS Sadar Bazar, Rohtak (Haryana); sanction (Ex.R1) dated 05.01.2015 U/s 39 Arms Act issued by Sh. Mohd. Ali, the then Addl. DCP. In view of the admission of these documents, formal evidence of Ms. Ritu, Ld. MM, Ahlmad CJIM (Crl.), Illaqa PS Sadar Bazar, Rohtak, Mohd. Ali was dispensed with.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
5. After conclusion of PE, statement of all the accused persons u/s. x Cr.P.C was recorded.
Accused Suresh Malik stated that identification of the rings was not done in his presence; that the Wagon R car has been released on superdari to his brother namely Naresh Kumar, however, he does not know FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 48 of 102 anything about the pulsar motorcycle; that he is innocent and has been falsely implicated in this case by the police officials.
Accused Pradeep Kumar stated that said Santro Car was not recovered from his possession; that he was lifted from his house; he is innocent and has been falsely implicated in this case by the police officials; that he originally belongs to a Village Atail, Rohtak, Haryana; accused persons namely Rakesh, Indervesh and Suresh Malik also belong to the same village and he knew them since long back and therefore, they used to talk to each other.
Accused Indervesh stated that they went to the FSL, Rohini but his voice samples were not taken there on 27.10.2014 and his voice was recorded in the PS; that Jagmender is his brother but he (accused Indervesh) never worked for Pig farming in his village. He also stated that he was having no partnership with accused Suresh Malik in any Piggery Farm; that the land on which the Pig Farm is situated is their ancestral property. However, this property has already been partitioned and this Piggery Farm is situated in the land which came in the share of his brother Jagmender. He further stated that Mobile No.9996486845 does not belong to him and he had never used the same; that he has been lifted from the police officials from his house; he does not know as to why and how he had been falsely implicated in the present case. Accused Indervesh also stated that he is innocent; that co-accused persons namely Suresh Malik, Rakesh and Pradeep belong to his Village Atail; however, he knows accused Sanjeev Arora only through accused Suresh Malik.
Accused Rakesh stated that the countrymade pistol has been planted upon him by the police officials; that he has been falsely arrested in this case from his house; he did not make any disclosure statement; Police FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 49 of 102 obtained his signatures on some already written papers and on some blank papers and he signed the papers due to fear of the Police; that nothing was recovered at his instance but the Police had planted the said recovery upon him; that he did not make any confession; he did not get recover anything but Police had planted the alleged recoveries upon him; that the Police had seized his motorcycle from his residence; that he did not point out any place to the Police; he was lifted from his house and he has been falsely implicated in the present matter; that he knew the accused persons Suresh Malik, Pradeep and Indervesh since these accused persons are from the same village i.e. his village namely Atail, District Rohtak, Haryana.
Accused Sanjeev Arora stated that he does not know about the seizure of the rent agreement; the factory situated at 147, Sector-2, Bawana Industrial Area is his factory taken on rent by him; mobile no. 9210845661 is his mobile number and it was being used by him; that he did not make any confession; the said Santro car is not in his name and he had no concern with the Santro car; that there is a rent agreement executed between him and Shri Anil Kumar Panchal who is the owner of factory No.H-147, DSIDC Bawana, Delhi; that he was lifted from his house when he was sleeping and he has no concern with the present case; that he is innocent and has been falsely implicated in the present case; he only knew accused Suresh Malik and he does not even know the other accused persons. He further stated that at the time of arrest, he had told about his innocence to the concerned police officer; the police had obtained his signatures on 100-150 blank papers; that he was not in touch through phone calls or otherwise with the accused persons namely Pradeep, Rakesh and Indervesh.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 50 of 102ARGUMENTS OF LD. ADDL. PP FOR STATE AND LD. DEFENCE COUNSELS
6. This Court has heard the final arguments advanced by Sh. Virender Singh, Ld. Addl. PP for State as well as by Sh. Pramod Tyagi, Ld. Counsel for accused Suresh Malik and Pradeep, Sh. Gaurav Vashisht, Ld. Amicus Curiae for accused Rakesh, Sh. Rajiv Pratap Singh, Ld. Amicus Curiae for accused Sanjeev Arora and Indervesh.
This court has also perused the entire record. Ld. Addl. PP for the State submitted that the accused persons be convicted as per law for all the offences charged against them. Ld. Additional PP has argued that the Prosecution has proved its case beyond doubt on the basis of circumstantial and scientific evidence in the present case. Though, there is no last seen evidence in the present matter, however, recovery of the case property as well as scientific evidence i.e. voice recording of one of the accused namely Indervesh and positive FSL results regarding firing of bullet from the pistol recovered at the instance of accused Rakesh duly proves the case of Prosecution. Further, chance prints of one of the accused namely Pradeep have also been found on the Santro car in which the deceased Sh. Dinesh Kumar Agarwal was murdered, as per the case of prosecution.
Per contra, Ld. defense counsels, have vehemently argued that the Prosecution has miserably failed to prove their case, let alone, beyond the shadow of reasonable doubt. Ld. defense counsels have submitted that none of the circumstance as relied upon by the Prosecution to bring home the guilt of the accused persons, is proved by the prosecution. Ld. Defence counsels have assailed the case of the prosecution on the following grounds:-
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 51 of 102a. All the accused persons have been falsely implicated in the present matter by the police of PS Jyoti Nagar, Delhi in order to work out a blind case of ransom cum murder.
b. That the present case is purely based on the circumstantial evidence, even there is no last seen evidence in the present case. Further, there is no iota of admissible evidence against any of the accused persons.
c. That there is no statement or evidence or any link as to how police came to know that the accused Pradeep Kumar (who was firstly arrested by police) was involved in the crime or that how Police zeroed in on accused Pradeep when admittedly accused Suresh Malik might be talking with many other persons on the day of incident or prior to that as well.
d. That in the present case, there is no statement of any employee or any other person or any other eyewitness from or near the factory of Sh. Sanjeev Arora to prove that the deceased was seen at the factory of accused Sanjeev Arora or that he was confined or abducted there. Though, it is an admitted fact by the police witnesses that there were workers present in the said factory on the said day and time of the alleged incident. However, there is no statement of any person or worker to prove that the deceased was seen with any of the accused person on the said place on the said day. Even, there is no statement or evidence from the adjoining factory to prove that the alleged CCTV footage or Hard disk was ever seized.
e. That there is no statement or documentary evidence regarding the photographs of the dead body that who had taken the photographs FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 52 of 102 of the dead body, when the same were taken and who all were present at the said time, whether the same were taken from the mobile phone or some digital camera; that there is no statement of Mr. Satbir who was the owner of the land wherein alleged dead body was found. Also, there is no statement of Sh. Bhoop Singh who allegedly told the Sarpanch Sh. Jai Bhagwan, Khidwali, Rohtak about the dead body being found in the land of Mr. Satbir. f. That the body of the deceased was not naked, rather, it was having clothes, three rings, one wallet with some cards and one pistol and two bullets were also lying there, near the dead body; that this fact is evident from the FIR registered in PS Sadar Rohtak since this FIR also does not mention that the body found was in the naked condition. Moreover, it is also crytal clear from the evidence of PW4, Sh. Jai Bhagwan that the recovery as alleged by the prosecution at the instance of the accused persons, is a planted recovery since this prosecution witness has deposed that the dead body was having clothes, three rings, one wallet with some cards and one pistol and bullets were also lying near the dead body.
g. That in the present case, the prosecution has not recovered the alleged scooter on which the deceased had been abducted on the day of alleged incident. In the PCR call, the son of the deceased has told that his father has been taken away on a scooter ("jo scooter par le gaye the). In this regard, DD No.48(B) dated 20.08.2014 was registered which is Ex.PW38/L in the present case. Though, PW2 Sh. Ashu Agarwal, son of the deceased has tried to cover up the said lacuna by stating that he was under the FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 53 of 102 impression that his father had gone on his scooter to his office as it was a regular routine of his father to go to office on scooter;
however, when he returned back to his house, he saw the scooter parked at his house. Thus, the scooter was a material piece of evidence and the Prosecution was supposed to prove this material fact that the deceased (father of PW2) had not gone on the scooter since the scooter is lying parked in his house. However, no such scooter has been seized or recovered in the present matter to prove that scooter was actually lying at the house of the deceased. h. That the key witness of the Prosecution in the present case namely Mr. Inder Pal (PW3), who allegedly told to the Police, everything about the proposed meeting of Late Mr. Dinesh Kumar Aggarwal with accused Suresh Malik, is totally hostile before the Court and he did not support prosecution in any manner. Infact, he has deposed that on the day of incident, Mr. Dinesh Kumar Aggarwal (deceased) went from home along with one unknown person on scooter and this witness also told that he was beaten by the police and was kept in illegal custody for 24-25 hours. i. That the recovery as alleged, at the instance of the accused persons is planted by the police and said recovery has also been discarded by Sh. Jai Bhagwan (PW4) before this Court; that he (PW4) also told that some identification documents were recovered from the pocket of Mr. Dinesh Kumar Aggarwal (deceased) and that the dead body was having clothes, three rings, one wallet with some cards and one pistol as well as two bullets were also lying there near the dead body and police recovered all the things from the said spot in village Kidhwali, Rohtak.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 54 of 102j. That Investigation Officer of the case has not even filed proper and complete cell location chart of the accused persons as well as deceased (Mr. Dinesh Kumar Aggarwal) intentionally in the present case; that as per the cell location charts of the accused persons, there is no single location of deceased with any of the accused. Further, cell locations of the accused persons are different from each other particularly when the alleged offence is committed.
k. That the alleged mobile phone of the complainant Sh.Ashu Aggarwal, in which the alleged recording of last ransom call was done by him was admittedly seized on 29.09.2014 by the police i.e. after around 40 days of the incident. Also, alleged first mobile of the son of the deceased was never seized by the police in order to prove that his first mobile phone was not having any such call recording facility. Further, there is no evidence on record that the second mobile in which alleged last ransom call recording was done, belongs to the complainant/son of the deceased or any of his any family member or to the I.O.
l. The alleged mobile call recording is not having any date and time of recording. Therefore, it is not proved that the same was of the day of incident or of the some other day. Infact, PW34 Dr. C.P. Singh has not deposed anything about the date, time, duration or content of that audio recording. Further, transcript of any audio recording has not been filed or proved on record by the Prosecution and this fact has been duly conceded by Ld. Addl. PP during the course of final arguments that no transcript of any nature has been filed or exhibited on record. Even otherwise, the FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 55 of 102 mobile phone on which alleged recording has been done was admittedly seized after 40 days of incident and the voice of the accused Indervesh has been planted / extracted after the incident in question.
m. That the statement of PW-16 (ASI Balkishan) is very relevant with regard to the alleged CD, in which voice of co-accused Indervesh was recorded; that as per his statement, the compact discs were not checked in his presence nor the same were put to check in his presence whether the same were blank or not; that he was given loose compact open disc and the same was not a sealed CD in any cover or envelope. The FSL had handed over him the said CD without seal and he had sealed it himself. n. That there are total three alleged CCTV footages of different times and different places in the present case, as one alleged footage is from the Balaji Petrol Pump, Mahindra Park, Delhi. Second is from Factory No.148, Sector-2, Bawana, Delhi. Third is from CNG Filling Station, Karnal Bypass, Delhi. As per the prosecution, firstly, all the alleged footages were sent to FSL Rohini, Delhi and received with the report that the same are not accessible and thus, all the three footages could not play. Therefore, nothing incriminating against the accused persons came out from the footages. Later on, the said CCTV footages were sent to FSL, Chandigarh and again these footages were received back with the same report. It is submitted that the accused persons had filed this application regarding all the CCTV footage of the case, on that a report was filed by the SHO PS Jyoti FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 56 of 102 Nagar and on the basis of the same, the said application was disposed off vide order dated 12.05.2022, by the Ld. Trial Court. o. That the alleged recovery of case property from the Pig Farm is totally planted upon the accused persons, as it is evident from the testimony of PW-38/ IO that "he does not remember if the gate of Pigri Farm was locked or it was lying open. The doors of both the rooms at Pigri Farm found ajar". The alleged recovery from the said spot is after 5 days of alleged incident and some of the recovery is even after 14 days of the incident. The said place is stated to be easily accessible to anyone. Therefore, the alleged recovery from there, is having no meaning in the eyes of law. p. That no photography and videography of any alleged recovery and also, there is no public witness is on record for the same, despite the admitted fact by IO that many persons were available to him during the entire investigation of the case. q. That the mobile No.9996486845 allegedly used by accused Indervesh is registered in the name of one Rajbir. However, statement of Rajbir was not recorded by the IO. It is submitted that Rajbir is not even relative of accused Indervesh. Further, IO did not record statement of any other relative of the accused Indervesh to prove that accused Indervesh was using the above said mobile number which is registered in the name of Rajbir. r. That the rings allegedly recovered at the instance of accused persons are planted upon the accused persons and this fact is writ large from the initial statement of the complainant/son of the deceased, which culminated into the present case FIR that he did not mention anything about the wearing clothes or rings which his FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 57 of 102 father was allegedly wearing. Admittedly, when his father left the home, son/complainant was not present at home. Therefore, he would not know what his father was wearing on the day of incident. Also, there is no statement of wife of the deceased on record or otherwise as to what deceased was wearing when he left his home, no photograph of the deceased wearing those rings has been filed on record which could have shown that he used to wear alleged three rings.
s. That the technical evidence relied upon by the Prosecution like all the CCTV Footages, Voice sample, CDR and location do not support the case of prosecution. And more importantly, the DNA of the deceased does not match with any of the article recovered from the alleged car since no DNA profile could be generated from the bone of the deceased and admittedly, Prosecution/ IO had not taken any blood sample from the deceased of the body through any doctor or expert to get it matched with the DNA / blood allegedly found in the Car.
APPRECIATION OF EVIDENCE
7. Admittedly, the present case of Prosecution rests upon the Circumstantial evidence. It is a settled position of law that where a case is squarely based on circumstantial evidence, the complete chain of circumstances from which an inference of the guilt of the accused is to be drawn, has to be proved beyond reasonable doubt and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 58 of 1028. In a catena of Judgments including a Judgment titled as 'Bodh Raj @ Bodha And Ors vs State Of Jammu And Kashmir' on 3 September, 2002, the Hon'ble Apex court has reiterated the above stated position of law:
In a Catena of Judgments including a judgment titled as 'Bodh Raj @ Bodha And Ors vs State Of Jammu And Kashmir' on 3 September, 2002, the Hon'ble Apex court has reiterated the above stated position of law:
"Before analyzing factual aspects, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court, those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence. the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063), Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi and Ors., AIR (1985) SC 1224, Balwinder Singh v. State of Punjab, AIR (1987) SC 350, Ashok Kumar Chatterjee v. State of MP AIR (1989) SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC 621), it was laid down that where the case depends FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 59 of 102 upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
We may also make a reference to a decision of this Court in CChenga Reddy and Ors. v. State of A,P,, [1996] 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence. the settled law is that the circumstances from which the conclusion of guilt is drawn would be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.....'"
In Padala Veera Reddy v. State of A.P. and Ors.. AIR (1990) SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests;
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly es'ablished, (2) those circumstances. should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances. taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any. other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
In State of U.P. v. Ashok Kumar Srivastava, (1992) Crl.L.J.l 104, it was pointed out that great case must be taken in evaluating circumstantially evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. h was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
Sir Alfred Wills in his admirable book "Wills"
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 60 of 102Circumstantial Evidence" (Chapter VI ) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum, (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability, (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits, (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR (1952) SC 343, wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature. the circumstances from which the conclusion of guilt is to be drawn the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words. there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
In Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 61 of 102 circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused. that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude very possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
9. In another judgment titled as 'Nizam & Anr Vs State of Rajasthan' AIR 2015 SC 3430 decided on 04.09.2015, it has been observed by Hon'ble Supreme Court of India that :
"8. Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence...
10. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, this court held as under:
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 62 of 102 escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205, Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions.."
10. In a criminal trial, as a general rule, in so far as the burden of proof is concerned, the burden is on the Prosecution to prove that the accused is guilty. If the prosecution is successful in discharging this initial but quite a heavy burden, then, the onus shifts on the accused to counter the incriminating evidence against him. On the touchstone of this basic principle of criminal jurisprudence, in the present case also, it needs to be examined while considering the overall evidence that whether the case of the Prosecution is proved beyond reasonable doubt.
11. Circumstances relied upon by the Prosecution in the present case: Now, adverting to the evidences which have appeared against the accused persons in the instant matter as per the case of the prosecution, which are as under:
i. Statement of the complainant Sh. Ashu Kumar Aggarwal, son of the deceased.
ii. Recovery of the Santro car allegedly used in the commission of offences.
iii. Alleged recovery of clothes, rings and documents of the deceased Dinesh Kumar Aggarwal.
iv. Alleged recovery of weapon of offence i.e. improvised pistol.
v. FSL reports
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 63 of 102
vi. Postmortem report (PMR) of the deceased
vii. Call Detail Records
12. It is an admitted case of prosecution in the present matter that there is no eye witness who has seen the deceased lastly with any of the accused persons or any eye witness who has seen the occurrence of the incident or any of the activity of the accused persons or any eye witness who has even seen any of the accused persons during the whole day on which the commission of offences in question took place.
Now, this court proceeds to examine whether prosecution has been able to prove its case beyond reasonable doubt and as to whether the Prosecution is able to prove the circumstances leading to the only hypothesis that the accused persons are guilty for commission of the offences in question.
Statement of the complainant Sh. Ashu Aggarwal, son of the deceased
13. Perusal of the initial statement of the complainant Sh. Ashu Aggarwal (son of the deceased) Ex. PW2/A which culminated into the present case FIR, reveals that he has stated that on 20.08.2014 at around 10:30 am, his (complainant's) father Sh. Dinesh Kumar Agarwal left his home for some work and at around 12:56 PM, he received a call on his phone no. 98xxxxxx00 from the phone of his father 9311767048 his father told him that he has been abducted by 3-4 persons and those persons are beating him after confining him in a room and he should do whatever these persons say. Then, some unknown person talked to him after taking phone from his father and told him that he has time of only one and half hour to bring Rs. 3 crore as well as jewellery available in his house to his office;
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 64 of 102that he will send his man to his office to receive money and jewellery; that his father is in their custody and if he tries to inform police or any other relative, they will kill his father and his count down will also start. then, they hung up the phone and the son of the deceased (PW2) called at 100 number informing thereby, that some unknown person has abducted his father for money.
14. The complainant Sh. Ashu Aggarwal has been examined as PW2 before court and he reiterated his above said version in his testimony. He further deposed that the police had reached his house; that when he had reached his home, he had received five more telephone calls from the same number and all these five times, an unknown person had talked to him who had been making inquiry from him about the arrangements made by him for payment of money and jeweleries; the police recorded his statement Ex.PW2/A. PW2 further deposed that he had changed his phone set and had transferred the SIM card in another phone set having facility to record conversation that (PW2) had recorded the last call/ conversation received at about 6.00 PM and he had handed over the said mobile phone having recording of that last conversation, to the Police; that his father used to wear three rings in his finger i.e., one gold ring with diamond, one gold ring and one silver ring with stone of blue and black colour; that on that day also, he was wearing these rings.
PW2 further deposed that on 20.08.2014 itself, after registration of this case, Inderpal (driver of his father) had told him that on that day, he had brought one Form for RTGS transaction to his father and his father had signed that Form and given it to him. Thereafter, Inderpal was sent to Bank and his father had told him (Driver Inderpal) that his FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 65 of 102 father was to go along with Mr. Suresh Malik (one of the accused) and therefore, he (driver) was not required to come back.
15. In his cross examination, Complainant/PW2 has admitted that he was not having any apprehension against the accused Suresh Malik, therefore, he had not mentioned about the property dealings between his father and Suresh Malik. He has also admitted that he had mentioned to the PCR officials that his father had gone on a scooter. He has further deposed during his cross examination that he does not remember the exact time, it may be around 1:00 to 2:00 PM when his driver (PW3) met him on 20.08.2014 (day of incident) and told him about his father's plan to go with accused Suresh Malik; that on 20.08.2014, he was not having any apprehension against Suresh Malik.
The complainant has not mentioned in the FIR (registered at 03:45 PM) on 20.08.2024 that his driver has apprised him about his father's plan to go out with accused Suresh Malik and admittedly, on 20.08.2014, he was not having any suspicion over the main accused namely Suresh Malik. If the said plan of his father to go with accused Suresh Malik came into his knowledge at around 1:00 to 2:00 P.M., in all probability, any prudent person/ PW2 (complainant / son of the victim) would have told the same to the police official immediately or would have raised, at least, a suspicion on the accused Suresh Malik. When the Driver Sh. Inder Pal stepped into witness box before this court, he deposed that he had met Shri Dinesh Kumar Aggarwal (deceased) lastly on 20.08.2014 at about 10.00 AM at his home at Jyoti Nagar; that he (driver) had gone to get his signature on RTGS Form; the deceased signed that Form and thereafter, he (the deceased) went away along with someone else on a scooter; that he FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 66 of 102 does not know the name of that other person but he can identify him. PW3 further deposed that, that person is not in the court on the day of his deposition (witness had taken a look around the court before giving his answer); that when he had met Mr. Dinesh Kumar Aggarwal with RTGS Form, he did not tell him anything about his program/ schedule of that particular day.
Admittedly, son of the deceased was not present at his home when his father left the home, as such neither did he see his father leaving the home nor he was directly informed by his father that as to where, he would be going.
16. Now, adverting to the Statement of PW3 Sh. Inderpal, driver of the deceased: - This witness has not supported the case of the Prosecution. He has deposed that he used to drive the vehicle of Sh. Dinesh Kumar Agarwal (deceased) and he has met Sh. Dinesh Kumar Agarwal on 20.08.2014 at about 10:00 AM at his home at Jyoti Nagar; that he had gone to get his (deceased) signature on RTGS Form. PW3 further deposed that he (deceased Sh. Dinesh Kumar Agarwal) signed that Form and thereafter, he went with someone else on a scooter; that he (driver) does not know the name of that other person but he can identify him. Then, PW3 took a look around the court and stated that "that person" is not present in the court.
17. Perusal of testimony of PW4 Sh. Jai Bhagwan, Sarpanch of the Village reveals that he has deposed that he went to that place near the dead body and it was a male dead body; that the dead body was having clothes in the form of pant shirt; he did not notice any injury mark on the body; that he made call at 100 number and after some time, police officials FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 67 of 102 from PS Rohtak Sadar came there; that one pistol and two bullets were also lying there and police took away the dead body with pistol and bullets.
Since PW3 Sh. Inderpal (driver of the deceased) and PW4 Sh. Jai Bhagwan (Sarpanch of the Village where dead body was found) had turned hostile, Ld. Additional PP for the State cross-examined both of them. However, nothing incriminating against the accused persons could be elicited from their cross examination.
Alleged Recovery of Santro Car, Clothes & Rings of the deceased: -
18. PW38 Inspector Narender Singh who is the IO of the present case deposed that accused Pradeep led them to his residence i.e. house no. AY-67, near NDPL office, Jahangirpuri, Delhi and he pointed out a Santro Car which was stationed near his house and stated that this car was used during the commission of offence in this case; CFSL team was called which collected the finger prints, chance prints, lifted the blood stains from the glass and right door of the car; lifted blood scrapping from dikki, one front led of the fired bullet which was fixed on the ceiling of the back seat and one empty cartridge case from the foot mat of the driver seat, one wheel Paana and two back seat covers of the car of black and silver color rexine from the car having blood stains.
During his cross examination, PW38 /IO Inspector Narender Singh has deposed that on 24.08.2014, they along with SI Nitesh and other police staff had visited the house of accused Pradeep; that he does not remember the exact time when he be left the police station and reached at the residence of accused Pradeep. However, it was noon time. PW38 admitted that he cannot tell the name of other police officials except SI Nitesh who visited the house of accused Pradeep with him. He further FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 68 of 102 deposed that Santro Car was recovered from the area of Jahangirpuri and the spot of recovery was near the house of accused Pradeep but he can not tell the exact distance between the spot of recovery of car and house of accused Pradeep.
19. In this regard, PW22 SI Nitesh Bhardwaj has deposed that on 24.08.2014, he joined the investigation of present case along with Inspector Narender Singh; one of the accused namely Pradeep was present in the police station who was interrogated in his presence. He further deposed that in pursuance of his disclosure statement, accused Pradeep led the police team to A Block, DDA Flats, near Metro Station, Jahangirpuri. On reaching there, he (accused Pradeep) got recovered one Santro Car bearing registration no. DL 9CG-0270 of white color, lying parked outside his house no.A 67.
20. Thus, there is stark contradiction between the testimony of both the above mention recovery witnesses (Pw38 & PW22) regarding the place of alleged recovery of Santro Car. In so far as, one witness is saying he is unable to tell the distance between the spot of recovery of car and house of the accused Pradeep, other witness is saying that the car was lying parked outside the house of the accused. Further, it seems highly improbable that the accused persons who allegedly left no stone unturned for screening the offences, would park the car used in the commission of offence near their house and that too with a bullet and shell lying in it.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 69 of 102Alleged recovery of weapon of offence i.e. Country made Pistol and Bullet /shell
21. As per the case of prosecution, the country made pistol has been recovered at the instance of accused Rakesh and the Bullet as well Shell have been recovered from the Santro Car. PW22 SI Nitesh Bhardwaj has deposed that accused Rakesh led the police team to a room in the said Pigri Farm where some articles including kitchen articles were lying. From the said room, he took one plastic bag in which one country made pistol was lying. On checking the same by IO, it was found not loaded with any cartridge.
During his cross examination, PW22 deposed that he does not recollect about the sequence of recording the disclosure statement of the accused persons. He further deposed that there were two constructed rooms at the said Pigri Farm and the remaining area was vacant having bada for pigs. He further deposed that there were pigs in the bada but he does not recollect the number of pigs; that he can not tell, how many police officials from the local PS Sampla have joined them; that the said Pigri Farm was lying opened; that there were no almirah or bed in those rooms.
22. PW38 IO Inspecter Narender has deposed that there were 1-2 persons in the Pigri Farm when they reached there; that he does not remember now if there were pigs available in the Farm or not; that he could not tell the name and addresses of those two 1-2 persons who met him in the Pigri Farm; that he does not remember if he had recorded the statement of two public person who met him in the Pigri Farm; he further deposed that he did not cite them as a witness in this case. Contrary to this deposition of PW38, PW22 has deposed that no one was found present at Pigri Farm when they reached there; that no public persons arrived at the FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 70 of 102 Pigri Farm during their proceedings.
23. PW38 has deposed that one front led of a fired bullet was fixed on the sealing of the backseat of the car and one empty case of a cartridge was lying on the foot mat of the driver's seat and he kept the same in a plastic container.
However, PW22 SI Nitesh Bhardwaj did not depose the place inside the car from where the bullet or shell of cartridge was recovered. The argument of the defense counsel holds water, that it seems too far fetched that the accused persons who allegedly cleaned the car, which has been recovered four days after the incident, would leave the bullet and shell inside the car to get the same recovered at a later stage by the police officials.
Recovery of rings of deceased : -
24. PW22 SI Nitesh Bhardwaj has deposed that accused Indervesh led the police team to a vacant plot adjacent to the said Pigri Farm and there were keeker tree in the said plot, where some shrubs of keeker were also there and accused Indervesh pointed out the said shrubs where one small carton box of green and orange color was lying. At the instance of accused Indervesh, it was lifted and on checking the same, it was found one ring of golden color having diamond like stone which was wrapped in a piece of paper, which accused Indervesh stated to be of the deceased which he had concealed there.
25. PW22 has also deposed in his examination-in-chief that accused Sanjeev Arora also got recovered one ring of silver color of FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 71 of 102 deceased from the said factory (i.e. Factory at Sector 2, Bawana Industrial Area); that on 04.09.2014, accused Suresh Malik led them to a Pigri Farm situated near Aitiyal Village, on reaching there, accused Suresh Malik got recovered one gold color ring of deceased, his PAN card and one Aadhar Card form of deceased having photograph of deceased.
It is pertinent to mention here that PW22 has not deposed as to from where in the Pigri Farm or in the factory, the accused persons namely Suresh Malik and Sanjeev Arora respectively have concealed the rings which were allegedly recovered at their instance.
26. Now, adverting to the deposition of PW38 Inspector Narender Singh, who has deposed on the similar lines as of PW22 with regard to the recovery of ring made at the instance of accused Indervesh. However, with regard to the recovery of ring Sanjeev Arora, PW38 has deposed that they reached at the first floor of plot no. H147, Sector 2, Bawana Industrial Area and from a hole of the wall, accused Sanjeev Arora took out pudia of a paper which was found to contain one ring having one nug (embellishment); thereafter, accused Suresh Malik led them in a room Pigri Farm and from a hole in the wall, he took out a Baniyan (vest) which was found containing one ring, PAN card of deceased Dinesh Agarwal, one photo, one document of Unique Identification Authority of India, Gov of India having enrollment no 1190/34415/00849 dated 26/12/2012 of Dinesh Agarwal (deceased) and his photograph.
27. PW4 Sh. Jai Bhagwan (Sarpanch of Village Khidwadi) who made a call at 100 number regarding dead body of deceased found near a small canal between village Khidwadi and Katwada. This witness did not FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 72 of 102 support the case of prosecution and had turned hostile. However, during his cross examination by Ld defense counsel, PW4 admitted that he remained at the agriculture field near dead body till the time police official from PS Sadar came there. He deposed that he remained at the place for around 1 ½ hours; that he had noticed three finger rings in the fingers of dead body. One was silver ring and another ring was stated to be very valuable by my village man. On this aspect, PW4 was cross examined by Ld. Addl. PP for the state to which he deposed that police officials from PS Sadar has also seen those finger ring in the fingers of dead body and therefore, there was no occasion for him to tell them that the dead body was having three finger rings in his fingers. In response to a court query, PW4 deposed that in his presence, no photographs were taken of the dead body by anyone including police officials. Further, Post-morterm report of the deceased reveals that well stitched body alongwith all belongings was handed over to Police. If the body was naked and there were no clothes or rings or any other thing on the body of the deceased, it remains an unsolved mystery as to what belongings were handed over to the Police.
28. At this stage, this court may gainfully refer to the some of the Judicial precedents on the aspect of recovery pursuant to the disclosure statement, made by the accused.
i. In the Judgment titled as "Jafarudheen and Others Vs. State Of Kerala" decided on 22 April, 2022, the Hon'ble Supreme Court of India has observed that :
"Recovery under Section 27 of the Evidence Act:
30. Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 73 of 102 merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus, be construed as a proviso.
31. The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act.
Precedents:
Kusal Toppo v. State of Jharkhand, [(2019) 13 SCC 676] as hereunder: - "25. The law under Section 27 of the Evidence Act is well settled now, wherein this Court in Geejaganda Somaiah v. State of Karnataka, (2007) 9 SCC 315 : (2007) 3 SCC (Cri) 135 has observed as under : (SCC p.
324, para 22) "22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."
26. The basic premise of Section 27 is to only partially lift the ban against admissibility of inculpatory statements made FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 74 of 102 before the police, if a fact is actually discovered in consequence of the information received from the accused. Such condition would afford some guarantee. We may additionally note that, the courts need to be vigilant while considering such evidence.
27. This Court in multiple cases has reiterated the aforesaid principles under Section 27 of the Evidence Act and only utilised Section 27 for limited aspect concerning recovery (refer Pulukuri Kotayya v. King Emperor, 1946 SCC OnLine PC 47 : (1946-47) 74 IA 65; Jaffar Hussain Dastagir v. State of Maharashtra, (1969) 2 SCC 872 : AIR 1970 SC 1934). As an additional safeguard we may note that reliance on certain observations made in certain precedents of this Court without understanding the background of the case may not be sustainable. There is no gainsaying that it is only the ratio which has the precedential value and the same may not be extended to an obiter. As this Court being the final forum for appeal, we need to be cognizant of the fact that this Court generally considers only legal aspects relevant to the facts and circumstances of that case, without elaborately discussing the minute hyper- technicalities and factual intricacies involved in the trial." Navaneethakrishnan v. State, [(2018) 16 SCC 161] as hereunder: - "23. The learned counsel for the appellant- accused contended that the statements given by the appellant- accused are previous statements made before the police and cannot be therefore relied upon by both the appellant-accused as well as the prosecution. In this view of the matter, it is pertinent to mention here the following decision of this Court in Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1 wherein it was held as under : (SCC pp. 334-35, paras 133 &
134) "133. We have already referred to the language of Section 161 CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the "theory of confirmation by subsequent facts"
i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 75 of 102 statements could also be described as those which "furnish a link in the chain of evidence" needed for a successful prosecution....."
H.P. Admn. v. Om Prakash, [(1972) 1 SCC 249] as hereunder: - "8...We are not unaware that Section 27 of the Evidence Act which makes the information given by the accused while in custody leading to the discovery of a fact and the fact admissible, is liable to be abused and for that reason great caution has to be exercised in resisting any attempt to circumvent, by manipulation or ingenuity of the Investigating Officer, the protection afforded by Section 25 and Section 26 of the Evidence Act. While considering the evidence relating to the recovery we shall have to exercise that caution and care which is necessary to lend assurance that the information furnished and the fact discovered is credible."
Aghnoo Nagesia v. State of Bihar, [(1966) 1 SCR 134] as hereunder: - "9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises.
Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence". The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 76 of 102 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them." K. Chinnaswamy Reddy v. State of A.P., [(1963) 3 SCR 412] as hereunder:
"9. Let us then turn to the question whether the statement of the appellant to the effect that "he had hidden them (the ornaments)" and "would point out the place" where they were, is wholly admissible in evidence under Section 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. The Sessions Judge in this connection relied on Pulukuri Kotayya v. King-Emperor [(1946) 74 IA 65] where a FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 77 of 102 part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In that case the Judicial Committee considered Section 27 of the Indian Evidence Act, which is in these terms:
"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." This section is an exception to Sections 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under Section 27 and laid stress on the words "so much of such information ... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact"....."
ii. In 'Manjunath vs State Of Karnataka' decided on 6 November, 2023, it has been observed by the Hon'ble Supreme Court of India that :-
"25. The next aspect is the recovery of the alleged weapons, we have noted the particulars thereof while discussing the findings of the Trial Court. Such recoveries were discarded by the trial court stating that the clubs were recovered from a place accessible to the public and, the chopper and the rods were recovered from a house where other persons were also residing which compromises the sanctity of such recovery and takes away from the veracity thereof.
26. Further discovery made, to be one satisfying the requirements FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 78 of 102 of Section 27, Indian Evidence Act it must be a fact that is discovered as a consequence of information received from a person in custody. The conditions have been discussed by the Privy Council in Pulukuri Kotayya v. King Emperor and the position was reiterated by this Court in Mohd. Inayatullah v. State of Maharashtra, in the following terms:-
"12...It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery..." (Emphasis supplied)
27. Prima facie, in the present facts, the 3 conditions above appear to be met. However, the Trial Court held, given that the discoveries made were either from a public place or from an area where other persons also resided, reliance thereupon, could not be made. We find this approach of the trial court to be correct. 38 1946 SCC OnLine PC 47 39 (1976) 1 SCC 828 41- [Cr. A No. 866 of 2011] 27.1 This court has, in various judgments, clarified this position. Illustratively, in Jaikam Khan v. State of U.P40 it was observed: - "One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan i.e. the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries." (Emphasis supplied) 27.2 Also, in Nikhil Chandra Mondal v. State of W.B.41 the Court held:-
"20. The trial court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 79 of 102 memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. We find that the approach adopted by the trial court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra- judicial confession." (Emphasis supplied)"
iii. In the judgment titled as "Boby Vs State Of Kerala on 12 January, 2023, the Hon'ble Supreme Court of India has held that :
"20. As early as 1946, the Privy Council had considered the provisions of Section 27 of the Evidence Act in the case of Pulukuri Kotayya and Others v. KingEmperor. It will be relevant to refer to the following observations of the Privy Council in the said case:
"The second question, which involves the construction of s. 27 of the Indian Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms. [His Lordship read ss. 25, 26 and 27 of the Evidence Act and continued : ] Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw for the Crown, has argued that in such a case the 4 1946 SCC OnLine PC 47 "fact discovered" is FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 80 of 102 the physical object produced, and that any information which relates distinctly to that object can be proved. On this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity, would all be admissible. If this be the effect of s. 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to s. 26, added by s. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A.", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
[Emphasis supplied]
21. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases.
22. This Court, in the case of Chandran v. The State of FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 81 of 102 Tamil Nadu, had an occasion to consider the evidence of recovery of incriminating articles in the absence of record of the statement of accused No. 1. In the said case also, no statement of accused No. 1 was recorded under Section 27 of the Evidence 5 (1978) 4 SCC 90 Act leading to the recovery of jewels. The Court found that the Sessions Judge as well as the High Court had erred in holding that the jewels were recovered at the instance of accused No. 1 therein in pursuance to the confessional statement (Ex. P27) recorded before PW34 therein. It will be relevant to refer to the following observations of this Court in the said case:
"36. ......Thus the fact remains that no confessional statement of A1 causing the recovery of these jewels was proved under Section 27, Evidence Act....."
23. It is thus clear that this Court refused to rely on the recovery of jewels since no confessional statement of the accused was proved under Section 27 of the Evidence Act.
24. It will also be relevant to refer to the following observations of this Court in the case of State of Karnataka v. David Rozario and Another:
"5. ......This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 82 of 102 well settled that recovery of an object is not discovery of a fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the mostquoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] ......" [Emphasis supplied]
25. A threeJudges Bench of this Court recently in the case of Subramanya v. State of Karnataka, has observed thus:
"82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:
"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 83 of 102 accused while in custody makes such statement before the two independent witnesses (panchwitnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
29. During his cross-examination, PW22 SI Nitesh Bhardwaj has admitted/ deposed that he does not remember from where and how the keys of Santro car were procured by IO; that the place from where Santro Car was recovered is the residential area; that no notice was served to residents who refused to join the proceedings; that Inspector Narender did not make any effort to ascertain who was the owner of said Santro Car, on reaching there; that on the right side of entrance, there were two rooms and from the middle of the plot the shed for pigs and both these rooms were lying opened and not locked; that in his presence, no efforts were made by the IO FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 84 of 102 to lift the chance prints and no crime team was called to inspect the said place (room of Pigri Farm); that no videography of the said Pigri Farm was got conducted at the time of recovery; that the public persons were not asked by the IO to sign the seizure memo allegedly prepared at Pigri Farm; that the surrounding area of pigri Farm was accessible to public persons.
During cross-examination, PW38 IO Insp. Narender Singh has also admitted/ deposed that he does not remember whether he had recorded the statement of two public persons who met him in Pigri Farm. He did not cite them as a witness in this case; that he does not remember whether those rooms (rooms of Pigri Farm) were were opened or latched; that there was movement of farmers in the nearby field. He admitted that the Pigri Farm is an accessible area. He stated that no photography or videography was made during the recovery of the case property from the Pigri Farm; that he had not recorded statement of any public persons/police staff official during the aforesaid investigation i.e. their visit at Piggery Farm; that no videography/ photography was done at the said spot. IO/ PW38 further admitted that no person from the factory of accused Sanjeev Arora was examined and joined investigation.
30. In the instant case at hand, admittedly, all the alleged recoveries at the instance of the accused persons have never been photographed or video graphed and no public witness has been joined in, while effecting the alleged recoveries despite the fact that there was ample time, at the hands of the IO for making at least sincere efforts to join the public witnesses in the aforesaid recoveries. Not joining of public witnesses shrouds doubt on the fairness of the Investigation in the present matter when the Investigating officer was very well aware that in the present case, there is FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 85 of 102 no eye witness or any ocular account of the incident in question by any person and the case is entirely based on Circumstantial evidence.
31. Recoveries in this matter would have been a significant link in the chain of circumstances if the same would have been done with more diligence. However, from the perusal of the record, it appears that no serious efforts have been made for joining the public witnesses while alleged recoveries were made. No notice or warning has been given to any alleged public persons if any, who allegedly refused to join the recoveries. Even though, there is no impediment in believing the version of police officials and not that in every case, the police officials are to be treated unworthy of reliance but their failure to join public witnesses especially when they are available at elbow, raises doubt on the fairness of recovery proceedings. A stereotyped statement of non-availability of public witnesses or their refusal to join the proceedings, can not be said to be a sufficient ground particularly when at the relevant time, it was not difficult for the IO to procure the attendance of the public witnesses.
Alleged recoveryof clothes of the deceased Dinesh Agarwal : -
32. PW22 has deposed that all those three accused persons (Rakesh, Pradeep and Indervesh) led the police team to the spot where they have thrown the clothes of the deceased i.e. near samshan ghat village Ridhana. The pointing out memo of that place was prepared and they found at the instance of the accused person, pant, shirt, vest, underwear and one chappal lying there at that place. PW38 has also deposed that the clothes of the deceased were recovered from the said place (place as pointed out by the accused person) at the instance of the aforesaid accused persons and he FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 86 of 102 seized the clothes i.e. pant, baniyan, underwear, half sleeves shirt and black coloured Slipper of Action company.
33. Admittedly, these alleged recovered clothes were never identified as clothes of the deceased, by son of the deceased or by any other family member of the deceased either during investigation or during trial. Thus, the Prosecution has not proved that the clothes allegedly recovered at the instance of the accused persons were actually the clothes of the deceased.
FSL result regarding clothes and other articles allegedly recovered from Santro Car:
34. The aforesaid alleged clothes of deceased, clothes of the accused persons, gauge piece from car, paana and seat covers of the car, piece of bone of deceased were sent to the FSL Rohini for the purposes of examination. As per the result of this examination i.e. FSL report Ex. PW11/A reveals that Blood was detected on exhibits '1a', '1b', '1c, '1d', '1e', '4', '5', '6', '7' and '8' (clothes, slipper, small piece of gauze clothes, blood scrapping, paana and two car seat cover) 2. Blood could not be detected on exhibits '2a' , '2b', '3a' and '3b' (clothes of the accused Rakesh Kumar and Pradeep Kumar).
Result of DNA analysis is that DNA profiles generated from the Ex. 1a, 1b, 1c (clothes), 4, 5 (gauge piece from the car), 7 (paana), 8 (seat covers of the car) were found to be similar. However, DNA profile could not be generated from the piece of bone (Exhibit 9).
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 87 of 10235. During the course of final arguments, Ld. Additional PP as assisted by IO Inspector Narender Singh submitted before this court that blood sample of the deceased was not taken, as such, the same was not sent to the FSL, however, piece of the bone of the deceased i.e. clavicle was sent for generation of DNA profile of the deceased. But, DNA profile could not be generated from the bone of the deceased.
As per the FSL report Ex. PW11/A, DNA profile was generated from the Ex. 1a, 1b, 1c (clothes), 4, 5 (gauge piece from the car), 7 (pana), 8 (seat cover of the car) were found to be similar. However, DNA profile could not be generated from the piece of bone (of the deceased) (Exhibit 9).
Thus, though the DNA profile on alleged clothes of deceased, gauge piece, paana, and seat cover is same but it is not proved that the aforesaid DNA profile or blood on these items is the blood of the deceased since DNA profile of the deceased could not be generated from the piece of bone of the deceased and admittedly, blood sample of the deceased was not taken or sent to the FSL. Furthermore, above mentioned exhibits were received on FSL on 05.05.2024. The date of taking of these samples/ exhibits is 24.08.2014. Hence, the same were deposited after a gap of about 8 months.
Ballistic FSL Report:-
36. Perusal of FSL Expert report Ex. PW32/A reveals that on examination of Exhibits EB1 (one deformed bullet), EC1 (one cartridge case) and F1 (improvised pistol), it was found that the deformed bullet marked Ex.EB1 corresponded to the bullet 7.65 mm cartridge and the cartridge case EC1 and the evidence bullet Ex EB1 had been fired/ FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 88 of 102 discharged through the improvised pistol 7.65 mm marked Ex.F1.
PMR report of the deceased Ex. PW27/A reveals that on dissection of skull bevelling of inner table present, Track passing through left cerebral hemisphere to Rt. Hemisphere to left side of skull and exit wound of size 1 X 1 cm present over right parietal region.
Thus, an exit wound of size 1x1 cm was found on the parietal region (skull/ head) of the deceased. As per the case of the prosecution, the bullet which passed through the right parietal region (head) of the deceased, was recovered from the Santro car. However, it has not come on record that the said bullet which was found in the car, was having any blood on it. Admittedly, the said bullet was not sent for any biological examination for detecting whether there was any blood on the said bullet or for generation of DNA profile from it. Hence, the Prosecution has failed to prove that the aforesaid recovered bullet is the same bullet which passed through the right parietal region of the deceased. Accordingly, Prosecution has failed to connect the weapon of offence i.e. pistol and recovered bullet with the murder of deceased.
Chance print report
37. The FSL report Ex. PW24/A reveals that the chance prints q3, q5, q8 lifted from Santro car were identical to the right thumb impression and right middle finger impression of the accused Pradeep @ Jittu.
Ld. Defence Counsel has argued that the said recovery of Santro Car is planted upon the accused Pradeep and therefore, the fingerprints and hand impression of the accused Pradeep were also taken forcibly by the police on the car in order to support their claim of recovery of Car at the instance of accused Pradeep. Ld. Defence Counsel had further FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 89 of 102 argued that as per the case of Prosecution, three of the accused persons were in the said car, then why fingerprints of other accused persons were not found on this car. Therefore, it is crystal clear that the said car is a planted one and has not been recovered at the instance of accused Pradeep. Further, Prosecution has not placed any document regarding ownership of the said Santro Car and has failed to prove ownership or possession of the said Santro Car with any of the accused persons.
38. True that, as per the FSL report, some of the chance prints i.e. q3, q5, q8 lifted from Santro car are identical to the right thumb impression and right middle finger impression of the accused Pradeep @ Jittu. However, no other finger impression match was found on the Santro car. So, match of finger impression of only accused Pradeep on Santro car by itself, does not prove the complicity of the accused person Pradeep in the present case.
CDR report (Call Detail Record):-
39. Prosecution has also relied upon CDRs as one of the incriminating evidence stating that the accused persons were talking in between themselves on mobile phones on the day of incident. To counter this argument, Ld. Defense counsel has submitted that all the accused persons are known to each other and the accused persons have duly stated in their statement recorded u/s 313 CrPC that accused Pradeep, Rakesh, Indervesh and Suresh Malik belong to the same village and he (Suresh Malik) knew them since long back and therefore, they used to talk to each other.
However, the prosecution has failed to prove even on the basis of CDRs, that the deceased was with the any of the accused persons on the FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 90 of 102 fateful day of incident, since the location of the deceased has not been proved before the Court. Admittedly, the mobile phone of the deceased has also not been recovered in the present matter which could have proved that the mobile phone of the deceased was with the accused persons.
40. To the dismay of the case of Prosecution, the location chart of the deceased is not filed on record. PW30 Sh. Amit Sharma, Nodal officer, Reliance communication has deposed in this regard that he has seen the CAF of mobile no. 9311767048 which was issued in the name of Dinesh Kumar Agarwal (deceased); that the said MTS Company was taken over by Reliance Communication Ltd. in the month of October 2017. During his cross examination, PW30 has admitted that the location cell ID chart of mobile number 9311767048 (number of the deceased) is not on record. He further deposed that he can not produce the cell ID chart of the aforesaid mobile number as the same is not available in their office. Thus, location of the deceased has not been proved by the Prosecution.
There is no gainsaying the fact that CDR data is an effective and pivotal link in the chain of evidence. However, in the instant case in hand, CDR by itself does not lead to any, leave alone, only conclusion that the location of the deceased was with the accused persons (since location chart of the victim / deceased has not been filed or proved on record).
41. Moreover, in, AZAD @ GOURAV Vs State of NCT decided on 23rd March, 2023, Hon'ble Delhi High Court has held that:
"16.1 ... . CDR data may be an important and effective piece of evidence which may facilitate and assists courts in ascertaining the presence of different participants in commission of an offence including the complainant and proposed accused at one particular place or location which may be their presence at or near the place FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 91 of 102 of occurrence. However, CDR data can only be taken as supporting or corroborative piece of evidence and conviction cannot be made solely on basis of CDR data. CDRs proved and relied on by the prosecution only proved that the appellants Jitender @ Jitu and Azad @ Gaurav, on day of incident, were present near place of occurrence/incident but it is not proved that they have actually participated in commission of offence as per complaint Ex. PW1/A."
Recovery of PAN card and Aadhar document of the deceased : -
42. It has also been canvassed that PAN card and one Aadhar card Form with photograph of the deceased has been recovered at the instance of the accused Suresh Malik. In this respect, Ld. defense counsel has argued that it is quite unlikely that any offender would keep the identity documents of the deceased which are of no value to him, rather the same would expose him to the risk of being caught as perpetrator of the crime. Thus, the alleged recovery is planted too as these documents could be easily procured from the son or family of the deceased and then, planted upon the accused persons.
Non recovery of mobile phone of deceased :-
43. It is also propounded that all the accused persons have disclosed in their disclosure / confessional statement that they have thrown the mobile phone, its battery and SIM of the victim after breaking them and the accused persons also pointed out the said place where they allegedly threw these articles. However, again to the dismay of prosecution, no such recovery of mobile phone of the deceased could be effected, as such, no evidence came on record which could have proved that the deceased was with the accused persons or with any of them or that his mobile phone was in the possession of the accused persons.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 92 of 102Voice recording:
44. The prosecution has also relied on one of the circumstance i.e. alleged recording of last ransom call recorded by Sh. Ashu Kumar Agarwal (son of the deceased) which contains the voice of accused Indervesh. In this regard, the complainant Sh. Ashu Kumar Agarwal has deposed that he had received 5 more telephone calls from the same number (mobile number of his father) and all these five times, unknown person had talked to him who had been making enquiry from him about the arrangements made by him for payment of money and jewelleries; then he changed his phone set and transferred the SIM card in another phone set having facility to record the conversation; then he had recorded the last call of conversation received at about 6:00 pm and handed over the said mobile phone having recording of that last conversation to the police; the police had sealed his phone and prepared a document which was signed by him. He deposed that he does not remember the date of handing over of this mobile phone to the police. However, it was not given on the same day. The seizure memo of this mobile phone is Ex. PW2/B.
45. Perusal of Ex. PW2/B i.e. seizure memo of the said mobile phone reveals that this INTEX mobile phone has been taken into possession by the IO on 29.09.2014. The incident in question is 20.08.2014. Therefore, it is evident that the mobile phone used by the complainant for allegedly recording the last call, has been seized by the police after about 40 days of the incident and has not immediately seized, so as to rule out any possibility of tampering of any kind. Admittedly, the mobile phone of the deceased from which this call was received, has not FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 93 of 102 been recovered in the present case.
Seizure Memo Ex. PW2/B further reveals that the recording of this conversation was sent on some other mobile through Bluetooth and Whatsapp and then, script and CD of the same was prepared. Prosecution has not proved as to on which other mobile, the recording of conversation as sent or that who prepared the CD of the said recording.
46. PW34 Dr. C.P. Singh from FSL Rohini is the Expert witness who has examined the voice sample of the one of the accused namely Indervesh and Sh. Ashu Aggarwal (complainant / son of the deceased). He opined that the voice Ex. of the speakers marked Ex. Q1 (alleged audio recording in INTEX Gold mobile phone of the complainant) and Ex. S1 (specimen voice sample of accused Indervesh) are the probable voice of the same person i.e. Accused Indervesh. However, it is pellucid from the testimony of PW34 that he has also not mentioned anything about the date, time, duration or entire content of the said call recording. Furthermore, there is no evidence on record qua the first phone of the complainant which was allegedly not having recording facility in it and ownership of this INTEX mobile in which alleged call recording was done, is also not on record.
47. At this juncture, it would be apposite to quote a judgment i.e. Babu Vs State of Kerala decided on 11/08/2010, in which Hon'ble Apex Court has reiterated that:
"24. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 94 of 102 nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like Negotiable Instruments Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention) Act, 1987 , provide for presumption of guilt if the circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden on proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution. (Vide: Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16; Narendra Singh v. State of M.P., AIR 2004 SC 3249; Rajesh Ranjan Yadav v. CBI, AIR 2007 SC 451; Noor Aga v.
State of Punjab & Anr., (2008) 16 SCC 417; and Krishna Janardhan Bhat v. Dattatraya G. Hegde, AIR 2008 SC 1325)."
48. Thus, subject to the exceptional Statutes which shift the burden of proof of innocence on the accused, burden of proof of guilt of accused always lies on the prosecution. The instant case at hand falls under the general statute i.e. IPC and does not fall under the exceptional Statues. Hence, the burden of proof of guilt of accused persons was upon the prosecution.
49. Furthermore, in a case of Circumstantial evidence, inferences are to be drawn from the established facts and established circumstances which leads to a particular inference. However, all the circumstances so established must be of a conclusive nature and consistent only with the FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 95 of 102 hypothesis of the guilt of the accused. The court also needs to draw an inference that when the circumstances are collectively considered whether it forms a complete chain of circumstances with no missing or broken link in between.
50. In Kamal Vs State (NCT of Delhi) CA No. 465/2017, Date of decision 07 August 2023, the Hon'ble Supreme has observed:
"17. We may gainfully refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra):
"151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established.
There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 96 of 102(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
18. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned "must or should" and not "may be" established. It has been held that there is not only a grammatical but a legal distinction between "may be proved"
and "must be or should be proved". It has been held that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
51. In the present matter, accused persons have stated their defence that they have been falsely implicated in the present matter in order to work out this blind case and as such, the accused persons have not taken any particular/ specific defence. However, an adverse inference could have been drawn against the accused persons only if the alleged incriminating FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 97 of 102 circumstances stood fully established against the accused persons and the accused is, then, unable to furnish any reasonable explainable for the said circumstances as established against him/ them.
In this view, this court is fortified with a Judgement titled as Raj Kumar Singh @ Raju @ Batya vs State Of Rajasthan on 6 May, 2013 of Hon'ble Supreme Court of India in which, it is held that:
"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C.
An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 98 of 102
52. In another judgment titled as 'State Of Punjab vs Kewal Krishan' decided on 21 June, 2023, it has been observed by Hon'ble Apex Court : -
"22. The argument that the accused has failed to discharge his burden under section 106 of the Evidence Act and, therefore, his conviction was justified is misconceived. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, the question arises of considering facts of which the burden of proof would lie upon the accused. (See: Shivaji Chintappa Patil v. State of Maharashtra (2021) 5 SCC 626). Here, as we have discussed above, firstly, the incriminating circumstances were not proved beyond reasonable doubt and, secondly, they do not form a chain so complete from which it could be inferred with a degree of certainty that it is the accused and no one else who, within all human probability, committed the crime. In these circumstances, there was no occasion to place burden on the accused with the aid of section 106 of the Evidence Act to prove his innocence or to disclose that he parted company of the deceased before his murder."
53. On an overall consideration of the evidence which came on record in the present matter, the same would not lead this court to believe that any of the accused and deceased were last seen together. The evidence of PW2/ complainant Sh. Ashu Agarwal who is the son of the deceased, would show that as per his deposition, he was informed by his driver that the deceased will go with one of the accused namely Suresh Malik. However, the testimony of driver Sh. Inderpal would show that he did not support his statement to the effect that he was informed by the deceased that he will go with accused Suresh Malik.
Thus, there is no scintilla of evidence on record to show that any of the accused was last seen with the deceased. Prosecution even failed FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 99 of 102 to prove on the basis of CDR that the last location of the deceased was with any of the accused person since the location chart of the mobile number of the deceased was not brought and proved on record. Therefore, S.106 of Evidence Act, 1972 will not come into play in the present case especially when there is no evidence to show that any of the accused person was lastly seen or located with the deceased on the day of incident.
54. The present matter at hand is not a case of Reverse onus clause and therefore, this Court cannot ask the accused persons to prove their innocence. It is not the requirement of law applicable, in the present case. Infact, the Prosecution has to prove its case beyond reasonable doubt and in the case of circumstantial evidence, the burden on the Prosecution is even greater. However, in this matter, none of the above alleged circumstances has been proved by the Prosecution. There are missing links in the chain of circumstances. The Prosecution has relied solely on the circumstantial evidence to establish the charges against the accused persons. However, the facts and material brought on record during the trial are insufficient to hold that each of the alleged circumstance is proved beyond the shadow of reasonable doubt. The Prosecution not only failed to establish each circumstance but also, it failed to establish a conclusive link connecting each individual circumstance with the other circumstance or with the accused persons. Furthermore, it would not be out of place to mention that in this case, the Prosecution heavily relied on scientific evidence which also failed to connect the accused persons with the offences in question and consequently, the present case came crumbling down like a pack of cards.
FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 100 of 10255. In a case relating to circumstantial evidence, an unbroken chain of circumstances has to be spelt by the prosecution and even if one link in the chain of circumstances is broken, the accused must get benefit thereupon.
It is settled principle of criminal jurisprudence that even though an offence may be gruesome and shocks the human conscience, an accused can be convicted only on the basis of legal evidence which is on record. The law does not permit the Court to punish any accused on the basis of a moral conviction. The fact that the offense was committed in a very cruel and revolting manner, may in itself be a reason only for scrutinizing the evidence more closely since the more serious is the offense, the stricter is the degree of proof required.
56. At this juncture, it is apposite to quote the observations made by the Hon'ble Supreme Court of India in a case titled as 'Rahul Vs State of Delhi Ministry of Home Affair & Anr', Criminal Appeal no. 611- 615/2022 [2022 Live Law (SC) 926], Date of decision 07/11/2022:
"33. ... . The prosecution has to bring home the charges levelled against them beyond reasonable doubt, which the prosecution has failed to do in the instant case, resultantly, the Court is left with no alternative but to acquit the accused, though involved in a very heinous crime. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise."FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 101 of 102
Conclusion:
57. In view of the foregoing discussion, it is pellucid that due to lack of sufficient evidence, the Prosecution has not been able to prove the chain of circumstantial evidence as relied upon by them. Henceforth, the Prosecution has failed to prove its case against all the accused persons. Therefore, accused persons are entitled to be exonerated. Resultantly, the accused persons Suresh Malik, Pradeep @ Titu, Indervesh @ Master, Rakesh and Sanjeev Arora are hereby, acquitted of all the charges framed against them in the present case.
58. After compliance of Section 437A Cr.P.C, File be consigned to record room.
Announced in the open court (Surabhi Sharma Vats) on 12th February, 2024 ASJ-04, Shahdara/KKD Courts, Delhi/12.02.2024 This judgment contains 102 pages & each page has been signed by me.
(Surabhi Sharma Vats) ASJ-04, Shahdara/KKD Courts, Delhi/12.02.2024 FIR No.618/2014, PS. Jyoti Nagar State Vs. Suresh Malik & Ors. Page 102 of 102