Delhi District Court
Fir No:14/08; Ps Khajuri Khas; U/S ... vs . Rohit Dhingra Etc. on 3 June, 2011
1
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE : DELHI
Case ID Number 02402R0270932008
Session Case No. 32/08
Assigned to Sessions 15/4/2008
Arguments heard on 12/05/11
Date of order 01/06/11
FIR NO. 14/08
Police Station Khajuri Khas
Under Section U/Sec. 302/34 IPC
Out come of the case Accused Amit @ Babloo s/o Sh.
Nathu Singh is acquitted for the
offence u/sec. 302/34 IPC.
Accused Rohit Dhingra and Ashish
@ Ashu are convicted for the
offence u/sec. 302/34 IPC.
State Versus 1. Rohit Dhingra
s/o Sh. Anil Kumar
r/o 2617/9,Chunna Mandi,
Pahar Ganj,Delhi.
2. Ashish @ Ashu
s/o Sh. Lakhbir Singh
r/o 4/5929, Dev Nagar
Delhi.
3. Amit Kumar @ Babloo
s/o Sh. Nathu Singh
r/o B-121 Gali no.1, 2nd Pushta
Sonia Vihar, Delhi.
PRESENT : Sh. S.K Dass, Ld. Addl. PP for the state.
Sh. Pardeep Chaudhary Advocate for all the accused.
JUDGMENT
1. On 11.1.08 a case u/s 302 IPC was registered at PS Khajuri Khas vide FIR Page 1/116 2 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. No. 14/08 on the basis of information received at PS Khajuri Khas vide DD no. 3A wherein in it was informed at about 8.32 a.m that a dead body of a male was lying at 2nd near DharamKanta Pushta Sonia Vihar, Delhi.
2. The brief facts arising out of this case are that on 11.1.08 on receipt of aforesaid information vide DD No.3A SI Kashmira Singh alongwith Ct. Brij Pal reached at the spot. Inspector R.C. Ranga alongwith other police officials also reached at the there. Dead body was found lying in the bushes at Yamuna Pusta. The dead body was also having a carry bag. Two wounds were noticed on the head of deceased. Blood was found oozing from his mouth and wounds. Blood was also lying on the ground. One left foot sandal (brown colour) was also lying on the ground ,Crime team also reached at the spot. Crime team had taken photographs of the dead body from different angles. Dead body was got identified by one Mukesh s/o Jaswant Singh brother of deceased. No eye witness was found at the spot. Case u/s 302 IPC was registered and further investigation was initiated.
3. During the course of investigation site plan was prepared, postmortem of dead Page 2/116 3 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. body was got done. Left foot sandal of deceased, blood stained stone which was lying under the head of deceased were taken in possession. The alleged stone was broken into pieces and were taken in possession as earth control, a black colour purse from the pocket of deceased and a carry bag already in possession of the deceased was also taken in possession. Statement of witnesses were recorded. Postmortem of dead body was got done and dead body was handed over to Naveen Nagar and Mukesh Nagar both brother of deceased.
During the course of investigation statement of Vijay Sharma s/o Chaman Lal and Rajshree s/o Shiv Shanker, both employees of Mcdonald were recorded. PW Rajshree disclosed that he had seen Mahesh Nagar (deceased) with Rohit Dhingra at 8:30 p.m along with two other boys. It was also revealed by PW Vijay Sharma that Rohit Dhingra and Ashish had gone to Mcdonald at about 12:30 p.m (midnight). Rohit Dhingra and Ashish were interrogated and during interrogation it was revealed that one Vanita girl friend of Rohit Dhingra used to visit Mcdonald and deceased Mahesh Nagar used to tease her and due to that Rohit Dhingra became annoyed and determined to get revenge of Page 3/116 4 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. it and for that purpose he made a plan with his friends to remove him from the way and accordingly, on 10.1.08 deceased Mahesh Nagar, accused Rohit Dhingra, Accused Ashish and Amit all gathered outside the Mcdonald. Rohit Dhingra and deceased Mahesh Nagar both used to work in Mcdonald. On the basis of disclosure statement of accused Rohit Dhingra, accused Ashish @ Ashu and Amit @ Babloo were also arrested. Mobile phone bearing no. 9210000966 of accused Rohit Dhingra, mobile phone bearing no. 9211168796 of accused Ashish @ Ashu and mobile phone of accused Amit Kumar @ Babloo bearing no. 9818016312 were also taken in possession and converted into pullanda and sealed with the seal of RCR. Disclosure statement of all the accused were recorded wherein they all disclosed as under :
"They all were well known to Mahesh Nagar as they all were working in the Mcdonald. On 07.01.08 Rohit Dhingra told to his friends Ashish and Amit Kumar about establishing friendship by deceased Mahesh Nagar with his girl friend Vanita and the act of Mahesh Nagar became untolrable to him. At the instance of accused Rohit Dhingra they all made a plan to remove Mahesh Nagar from the way. As per their plan Rohit Page 4/116 5 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
Dhingra and Ashish took Mahesh Nagar at Sonia Vihar where Amit was already present. They all took Mahesh Nagar at second Pushta, Yamuna Khadar. Rohit Dhingra and Mahesh Nagar took beer and thereafter they all landed a stone blow on the head of Mahesh Nagar and killed him."
During the course of investigation stone was taken in possession. Scaled site plan was prepared, all the exhibits were sent to FSL Rohini. At the instance of accused persons beer cans which were lying at some distance from the dead body were taken in possession and six chance prints were also developed, finger prints of the accused were also taken for comparison. Statement of all the witnesses were recorded and after completion of investigation challan u/s 173 Cr.P.C was filed u/s 302/34 in the court of Ld. MM.
4. After obtaining the CFSL report from the office of Finger Print Bureau, same was also sent to the court on 21.07.10 after seeking permission from the court.
5.Ld. MM after taking cognizance for the offence u/s 302/34 IPC against all the Page 5/116 6 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. accused, supplied the copies of the challan as required u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter the case is fixed for arguments on charge.
6. After hearing arguments and on perusal of the material on record, a prima facie case for the offence u/s 302/34 IPC was made out against all the accused persons. Charge framed accordingly to which they pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
7. Prosecution has examined Mukesh as (PW.1), Naveen as (PW.2), Raj Shree as (PW.3), Ravi Kumar as (PW.4), Sh. Vijay Sharma as (PW5), Bhagelu Pershad as (PW6), Sh. Ram Chander as (PW7), Const. Brij Pal as (PW8), H.C Satish Kumar as (PW9), H.C Umesh Kumar as (PW10), Kamal as (PW11), Om Parkash Pandey as (PW12), Dr. Sumit Tellewar Sr. Resident, Safdarjung Hospital Department of Forensic Medicine as (PW13), Const. Kuldeep as (PW14), M.N Vijayan as (PW15), Sh.R.K Singh as (PW16), Sh. Ravinder Kumar Finger Print Expert as (PW17), ASI Subhash Chandra as (PW18), H.C Shokender as (PW19), ASI Chander Bhan as (PW20), SI Page 6/116 7 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Etender Swaroop Yadav as (PW21), Retired SI Kashmeera Singh as (PW22), SI Mahesh Kumar as (PW23), Sh. V. Sankaranarayanan SSA (BIO) FSL Rohini as (PW24).
8. The brief testimonies of prosecution witnesses are as follows:
i). PW1 deposed that on 11.1.08 5-6 police officials from police station Khajuri Khas came to his house and made inquiries about whereabouts/working place of his brother Mahesh Nagar and they also instructed him to come to PS Khajuri Khas. He also disclosed to police officials that his brother was working at Mcdonald Connaught Place. He further deposed that on instructions of police officials he alongwith his father and younger brother Naveen Nagar reached at P.S Khajuri Khas and they all identified the dead body of his brother Mahesh Nagar when it was shown to them, on bare perusal of his face and clothes worn by him.
The purse which was recovered from the possession of the dead body of his brother was also shown to him. Postmortem of the dead body was got done and on the second day dead body was handed over to them after Page 7/116 8 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. conducting postmortem. Identification memo is Ex.PW1/A bearing his signature at point A. Ld. Addl. PP for state after seeking permission from the court cross examined the witness on some points and during cross examination by Ld. Addl. PP for state he specifically stated that he had not identified the dead body of his brother at Pusta, vol. stated that neither he had seen the pusta nor he had ever gone there and his statement except the identification of the dead body of his brother was ever recorded by police officials. He specifically stated that he had not stated to the police that he alongwith his brother Naveen Nagar had gone to Pusta where dead body of his brother was lying or that they reached there at about 10:30/11 a.m. He also denied all the suggestions that he had seen the dead body at the spot or that head of his brother was lying towards western side and legs were towards eastern side and one sandal was missing from the left foot or that he had noticed injury marks on the left temple of his brother or that blood was lying on the stones which was kept under the head of his brother and thereby he confronted from his statement Ex.PW1/B from portion A to A wherein it was so recorded and he also specifically denied Page 8/116 9 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. that he identified the dead body of his brother at the spot. During cross examination by Ld. Counsel on behalf of accused he further deposed that his statement was never recorded by the police officials. Vol. stated that police official never interrogated him but he denied the suggestion that police officials never came to his house and informed him about the death of his brother or that he never went to PS Khajuri Khas to identify the dead body of his brother and articles belonging to him. During cross examination by Sh. Pradeep Chaudhary and Sh. R.M. Jha Ld. Counsels on behalf of all the accused he reiterated his testimony as submitted by him during examination in chief.
ii). PW2 deposed that deceased Mahesh Nagar was his elder brother. On 11.1.08 he alongwith his father and brother Mukesh Nagar went to PS Khajuri Khas and identified the dead body of his brother Mahesh Nagar and specifically stated that they had not gone to the place of recovery of dead body of his brother. Even during cross-examination by Ld. Addl. PP for state he denied the suggestion that they had gone to 2nd pusta where dead body of his brother was lying or that they reached there at about Page 9/116 10 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. 10:30/11 or that they had identified the dead body of his brother Mahesh Nagar or that head of his brother was lying towards western side and legs were towards eastern side and one sandal of his left foot was missing or that their was injury mark on the left temple of his brother or that blood was lying on the stones near the head of his brother, thereby he confronted from his statement from portion A to A of his statement Ex.PW2/A wherein it was so recorded. He further stated that he had not identified the dead body of his brother at the place of recovery however, he identified the same in the mortuary of GTB hospital vide memo Ex.PW2/B. Iii). PW3 deposed that he had joined his service at Mcdonald on 26.6.07 and resigned from the services in the month of July 2008. His place of working was B Block Inner Circle Connaught place, New Delhi. Deceased Mahesh Nagar and Rohit Dhingra both were known to him as they were also working at the said Mcdonald. Mahesh Nagar had now been expired.
a). He further deposed that on 10.1.08 at about 8/8:30 p.m he alongwith Page 10/116 11 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Mahesh Nagar came out of their outlet and Rohit Dhingra met them. One boy was also with Rohit Dhingra and he had seen first time on that day. He further deposed that he alongwith Rohit Dhingra, Mahesh Nagar and another boy proceeded towards Shivaji Stadium and from A Block he turned towards metro station and went to his house by metro train and next day he came to know that Mahesh Nagar had been murdered. He also identified accused Rohit Dhingra in the court but he shown his unwillingness to identify other boy who was with accused Rohit Dhingra.
b). During cross examination by Ld. Addl. PP for the state he deposed that police made inquiries from him with regard to this case and his statement was also got recorded. Rohit Dhingra and Mahesh Nagar both were the employees of Mcdonald and were known to each other but he denied the suggestion that he had made statement before the police that Rohit Dhingra and Mahesh Nagar were fast friends. He also denied the suggestion that he had disclosed the name of Ashish and Amit who were present with Mahesh Nagar on 10/1/08 at about 8:30 p.m. He also denied the suggestion that he stated to the police that Ashish and Amit offenly Page 11/116 12 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. use to came to meet Rohit Dhingra for taking burger etc., and they both were known to him. He also denied the suggestion that he stated to the police that when he went towards metro station Rohit Dhingra, Mahesh Nagar, Ashu and Babloo all the four persons took a three wheeler and went away from there, thereby he confronted from his statement Ex.PW3/PA, on many points i.e from point A to A, B to B, C to C and D to D. He further stated that Mahesh Nagar was having beer tines with him but he denied the suggestion that all the above named four persons were talking with each other about the factum of taking beer.
c). During cross examination by Ld. Counsel for all the accused he deposed that in the intervening night of 11/12-1-2008 he reached at police station at about 1:45 a.m and police had made inquiries from him. He further deposed that he remained at PS on 12/1/08 till 7/8 p.m and on that day his statement was recorded by the police. Police official also recorded the statement of Sh. Vijay Sharma (PW .5) the then Manager of the Mcdonald and three/four other employees of their office were also present. He further deposed that on 10.1.08 he was working in the Page 12/116 13 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. morning shift i.e from 7 a.m to 8 p.m and Mahesh Nagar was also working in the morning shift on that day. He further stated that he had left his duty on 10.1.08 at about 7:30/8 p.m. He further stated that Mahesh Nagar and he himself left the office together and he had seen the accused at B Block corner at Connaught place. He further stated that after handshaking with Rohit Dhingra he proceeded to metro station leaving Rohit Dhingra and Mahesh Nagar together. He further deposed that on 13.1.08 Kashmira Singh police official called them at PS and obtained signature of Vijay Sharma in his presence and he had also seen Rohit Dhingra at PS on 12.1.08. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
iv). PW4 deposed that on 11.1.08 he was called near 2nd Pushta Yamuna by SHO PS Khajuri Khas. On reaching there he saw dead body of a boy was lying there. He took photographs of the dead body from different angles. He had seen the photographs which are PW4/B1 to B11 and their negatives are collectively Ex.PW4/A .
During his cross examination by Ld. Counsel for accused persons he Page 13/116 14 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. deposed that he had stated in his statement to the police that he took 11 photographs and handed over the same to police officials but in the court he had seen other four photographs mark D1 to D4 in the file and these four photographs were not taken by him. Dead body was not visible from the pusta/road and there was no shop on the road of pusta from where dead body was recovered. He further stated that no public person except himself was present at that time and the place of occurrence was about 10/12 steps from the main road. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
v). PW.5 deposed that he has been working with Mcdonals Company since last about eight years and he was posted as a Restaurant Manager, Mcdonalds B-24, Inner Circle Connaught Place, Delhi since last one year and nine months(from the date of his examination before the court). Deceased Mahesh Nagar was also working in the said company as a Crewchief.
a) He further deposed that on 10/1/2008 he was working in the night shift Page 14/116 15 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. and Mahesh Nagar was working in the morning shift and finished his duty at 5 p.m. He was working in the night shift and started his duty at 7 p.m. He further deposed that on 10/1/08 after resuming his duty (after 7 p.m) Mahesh Nagar came back to Mcdonalds and requested him to keep his bag and went inside the Mcdonalds as he had to go to attend some party, but Mahesh Nagar left the Mcdonalds without keeping his bag.
b) He further deposed that on 10/1/08 (midnight) I.e in between 12 to 1 a.m Rohit Dhingra accused and one another boy (identified as Ashish) who are present in the court reached there and placed an order for eatables(Burger and Coke). He further stated that Rohit Dhingra was working at Mcdonalds and on that day he was working at Mcdonalds 12 Regal. He further deposed that on 12/1/08 he received a telephonic call from the house of Mahesh Nagar and his brother informed him that Mahesh Nagar had not reached at his house in the night of 11/12-1-08. He further deposed that in the noon time one police Inspector came to their Mcdonalds and made enquiries about one Mukul and also told him that Mahesh Nagar had been murdered. Police official went to the house Page 15/116 16 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. of Mahesh Nagar from Mcdonals and in the evening time police officials again came to Mcdonald and they took him with Mukul to police station Khajuri Khas, other employees of Mcdonalds were also called, accused Rohit Dhingra was also present at the police station. On 12/1/08 accused Rohit Dhingra confessed his guilt in his presence and he also signed the disclosure statement of accused Rohit Ex.Pw 5/A as a witness. He also disclosed the manner as to how he has committed the murder of Mahesh Nagar with his two companions. He further deposed that one mobile phone was also seized from the possession of Rohit Dhingra vide memo Ex.PW 5/B bearing his signatures at point A. Accused Rohit Dhingra also took them to Dev Nagar at a tea shop from where the accused Babloo was arrested(correctly identified him in the court). He also stated that arrest memo and personal search memos of accused Babloo were prepared in his presence which are Ex.PW 5/C and 5/D, both bearing his signatures at point A. Accused Babloo was arrested on the pointing out of accused Rohit. Accused Babloo also made a disclosure statement Ex.PW 5/E bearing his signatures at point A. One mobile phone was also got recovered which was seized vide memo Ex.PW 5/F, memo bearing his Page 16/116 17 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. signatures at point A. Accused Ashish was arrested from Dev Nagar on the pointing out of accused persons vide his arrest memo Ex.PW 5/G, his personal search was conducted vide memo Ex.PW 5/H, both the memos bears his signatures at points A. He further deposed that accused Ashish also made a disclosure statement Ex.PW 5/J and one mobile phone was recovered from accused Ashish vide memo Ex.PW 5/K. Memos bears his signatures at point A. He had also identified the signatures on the arrest memo of accused Rohit Ex.PW 5/L and on his personal search memo Ex.PW 5/M.
c) After seeking permission from the court Ld. Addl. PP for the State put a leading questions to the witness on the point of seeking clarification on the date, time and place to which he replied that he cannot not recollect if on 10/1/08 at about 8.30 p.m Mahesh Nagar came to their Mcdonalds along with Rohit Dhingra or that Mahesh Nagar had taken his bag and articles and had gone with Rohit Dhingra out side the store. He also failed to recollect if he had stated this fact to the police. His further examination in chief was deferred for want of the case property and was again Page 17/116 18 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. examined, cross-examined and discharged on 24/12/08.
d) On 24/12/08 three sealed parcels sealed with the seal of court were produced by MHC(M) which were opened and found to contain three mobile phones one make Samsung, second make Sony Ericsson and third make Indicom and all these mobiles were shown to the witness and on seeing the same he stated that he cannot identify the mobile exactly due to lapse of time, but voluntarily stated that mobile phones were recovered from the possession of accused persons.
e) During his cross-examination by Ld. Counsel on behalf of accused he deposed that he had not seen Amit in the intervening night of 10/11-1-08. Rest of his testimony is reiterated by him as submitted by him during examination in chief except some trivial confrontations.
vi). PW.6 deposed that he was running a cycle repairing shop at 2nd Pushta Sonia Vihar Delhi. Two shops are situated adjacent to his shop of Biri Cigarette. One shop was running by one Ram Chander and other shop was running by Vijay Gupta but he knew nothing about this case. Page 18/116 19 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
f) He was cross-examined by Ld. Addl. PP for the State and during cross-
examination he submitted that accused Amit @ Babloo present in the court is known to him as he is his neighbourer but he denied the suggestion that on 10/1/08 at about 9/9.15 p.m Amit @ Babloo along with three boys came to his shop, one boy purchased a cigarette or that one boy was carrying a carry bag on his waist or that after taking cigarette all the four boys went towards Yammuna Pushta or that at about 10 p.m when they were going to close their shop, Amit @ Babloo along with two boys came back or that one boy who was carrying a carry bag was not with them and thereby he confronted from his statement Ex.PW 6/A from portion A to A wherein it was so recorded. But he testified that on next day he had seen a dead body at the time when police officials were removing the dead body in the Gypsy. But he denied the suggestion that he had seen the dead body of a boy who was seen by him with accused Amit @ Babloo and two other boys, thereby he confronted from his statement Ex.PW 6/A from portion B to B. Rest of his testimony is reiterated as submitted by him during his examination in chief. Page 19/116 20 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Vii). PW.7 deposed that he was running a shop of selling Pan & Biri in a kiosk in front of his residence. He had not made any statement to the police regarding this case. He used to open his shop at 6 a.m and closed the same at 7 p.m. He knew nothing about this case.
a). During his cross-examination by Ld. Addl. PP for the state he deposed that accused Amit @ Babloo is not known to him. He denied the suggestion that he had made statement to the police on 15/1/2008. He also denied the suggestion that he had ever made any statement u/sec. 161 Cr.P.C which is shown to him. He also denied the suggestion that he used to close his shop after 10 p.m. He also failed to identify the accused Rohit Dhingra and Ashish present in the court. Rest of his testimony is reiterated by him as submitted in the examination in chief.
Viii). PW.8 deposed that on 11/1/08 SI Kashmira Singh received an information that a dead body was lying at 2nd Pushta Sonia Vihar Delhi, opposite DharamKanta and on receipt of this information he along with SI Page 20/116 21 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Kashmira Singh reached there at about 9.30 a.m. On reaching there they saw a dead body of a male person, facing towards the earth and dead body was also having a carry bag. They also noticed a cut injury mark near eyelid of the dead body. Blood was also found present at the spot. In the mean time SHO P.S Khajuri Khas also reached there. Crime team with photographer was called there. IO prepared the rukka and handed over the same to him at about 12.30 p.m for registration of the case. He reached at police station and got the FIR registered and thereafter he returned to the spot and handed over the rukka and copy of FIR to the IO. IO recorded his statement.
During cross-examination he reiterated his testimony as submitted by him during examination in chief.
ix). PW.9 deposed that on 12/1/08 he along with Inspector Ramesh Dahiya went to GTB Hospital for got conducting the postmortem of dead body of Mahesh Nagar. He further deposed that he along with Inspector Ramesh Dahiya, SI Kashmira Singh and one Vijay(PW5) went to the house of Babloo at Sonia Vihar but accused Babloo did not meet them Page 21/116 22 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. there. On enquiry from the family members it was revealed that he was running a tea shop at Mall road near Khalsa College. Thereafter they all reached at the tea shop, accused Rohit was also with them. On the identification of accused Rohit, accused Babloo was arrested, his disclosure statement Ex.PW5/A was recorded, nothing was recovered from the possession of accused Rohit in his presence. IO recorded the disclosure statement of accused Amit @ Babloo and a mobile phone was also recovered from his possession. One Mobile phone was recovered from the possession of accused Rohit Dhingra. Both these mobile phones were kept in parcel, which were sealed and seized vide memo Ex.PW 5/F. He further deposed that he along with all the above said officials reached at the residence of accused Ashish i.e at Dev Nagar but he did not meet there, however it was revealed that he was present at her Nani's house and accordingly he was arrested from there. His disclosure statement Ex.PW 5/J was recorded and one mobile phone was recovered from his possession vide memo Ex.PW 5/K. He correctly identified all the accused persons present in the court.
Page 22/116 23 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
b) He further deposed that on the next day he along with SI Kashmira Singh, Inspector Ramesh Dahiya and all the three accused persons went to Pushta Sonia Vihar and all accused persons got recovered one blood stained handkerchief and 3-4 empty tin of beer. One blood stained stone was also taken in possession. The handkerchief and the tin boxes were kept in parcel and sealed with the seal of RCR and taken in possession vide memo Ex.PW 9/A. They all reached at the residence of accused Babloo at Sonia Vihar from where accused got recovered currency notes of Rs.1000/-(ten notes of Rs.100/-) and these currency notes were taken in possession vide memo Ex.PW 9/B bearing his signatures at point B. Thereafter they all returned to GTB hospital. All the accused persons were medically examined and were produced before the court. IO again recorded his statement. He also identified ten currency notes of Rs.100/- denomination when shown to him which were recovered at the instance of accused Babloo and same are Ex.PW.9/A-1 to A-10.
c). He further deposed that three parcels sealed with the seal of RCR also produced in the court and on opening the same they were Page 23/116 24 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. found to contain mobile phones I.e one make Indicom, which was recovered from accused Ashu, second was make Sony Ericisson which was recovered from accused Babloo and third one was make Samsung which was recovered from accused Rohit. He correctly identified all the mobile phones. His examination was deferred due to want of complete case property i.e Tin boxes of beer, handkerchief and accordingly on 10/8/10 he was again examined in chief and case property was also produced before him and on seeing the same he identified the same as as Ex.P.11, as Ex.P.12 and as Ex.P.13 respectively. Another sealed parcel bearing the seal of FSL produced and opened in the court which was found to have contained three container of Haywards 5000 premium super strong beer and one tin container of King Fisher Strong premium beer each of 500 ml., wrapper of Kurkure and one handkerchief. Empty beer containers are Ex.PW.14 to PW.18, kurkure wrapper Ex.P.19, handkerchief is Ex.P.20 and all these were recovered from Sonia Vihar 2nd Pushta.
d). Another parcel in torned condition containing a piece of Page 24/116 25 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. stone was opened and shown to witness which he identified the same as Ex.P.21 which was recovered from 2nd Pushta Sonia Vihar Delhi. All the said articles were recovered at the instance of accused persons Rohit Dhingra, Amit @ Babloo and Ashish @ Ashu present in the court.
e). During his cross-examination he admitted that the place of incident was accessible to all and was not a secret place and the beer cans Ex.P-14 to P-18 were lying in open and were visible. He also admitted that one public person namely Vijay also joined the investigation on 12/1/08, however, on 13/1/08 no public person was present at the time of recovery of articles Ex.P.14 to P-21. He further deposed that house of accused Bablu was situated at a distance of 300 mtrs., from the place of incident. He also failed to explain to whom the seal of RCR after use was given. Rest of his testimony is reiterated by him as submitted during examination in chief.
x). PW.10 deposed that on 10/1/08, SHO P.S Khajuri Khas called him at 2nd Pushta Sonia Vihar Delhi where a dead body of Mahesh Nagar was Page 25/116 26 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. lying. He prepared a Panchnama of the dead body, had also gone to GTB hospital and kept the dead body in the Mortuary of GTB hospital. He also remained there as a guard and after postmortem, the dead body was handed over to the relatives of deceased.
a). During his cross-examination he stated that at the time of recording panchnama he along with SHO, SI Kashmira Singh, Const. Hemant, Const. Satbir, and Const. Ravinder were present. Const. Ravinder took the rukka to the police station and crime team also reached there by that time. Rest of his testimony is reiterated by him as submitted during his examination in chief.
xi). PW.11 deposed that he is unable to recollect the date and month when he took photographs in this case, however, it was in the year 2008. He went to the place of incident i.e Yammuna Pushta Khadar and took photographs of the beer cane and other articles lying scattered there. He took the photographs by digital camera therefore, no negatives of the photographs were processed. After developing the photographs he Page 26/116 27 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. handed over the same to the IO. Photographs are Ex.PW 11/A to Ex.PW 11/C. During his cross-examination he reiterated his testimony as submitted during examination in chief.
Xii). PW.12 deposed that he is unable to recollect the date, month and year but on that day when he was taking bath near temple, some persons collected there and were talking about a dead body near Thokar River Yammuna. He further deposed that he along with some other persons reached there and found a dead body of a young male person facing towards ground. Dead body was also having a bag of blue colour. Head was lying towards West direction and legs were towards East Direction. Dead body was having injuries on the head and he informed the PCR. Police official reached there and got his statement recorded. He also identified the carry bag which was in possession of the dead body, same is Ex.PW.12/Art.1.
During his cross-examination by Ld. Addl. PP for the state on the point of date, month and year he deposed that it was incident of 11/1/08. He Page 27/116 28 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. further deposed that when he reached at the spot it was about 7.30/7.45 a.m and at that time a old person commonly known as Dal Wale told him the factum of lying dead body at the spot.
During his cross-examination he reiterated his testimony as submitted during examination in chief.
Xiii). PW.13 is doctor who conducted the postmortem of the dead body and he deposed that on 12/1/08 he conducted the postmortem on the dead body of Mahesh Nagar @ Ajay aged 27 years male and found eight external injuries and internal injuries on his body which are described in his detailed postmortem report. He also opined the cause of death as shock as a result of antimortem head injury caused by blunt force impact. His detailed postmortem report is Ex.PW 13/A bearing his signatures at point A. He further deposed that on 27/2/08 SHO P.S Khajuri Khas handed over him an application along with one sealed parcel sealed with the seal of RCR for seeking subsequent opinion. Page 28/116 29 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. On opening the parcel he found one stone having multiple faces, rough surface, irregular in shape and surface, having maximum length of 27 cm., and weight of about 5 kg. Radish stains are present at the place over the stone and sand particles present over it. After examining the said stone and on reviewing the postmortem report No.43/08 Ex.PW 13/B he gave his opinion as follows:
"That injury no.5,6,7 and 8 mentioned in the postmortem report are possible with that stone and he also opined that injury No.5,6,7 and 8 were sufficient to cause death in ordinary course of nature individually and collectively. His subsequent opinion is Ex.Pw 13/B"
Witness also identified the stone when shown to him and specifically stated that he had put his signatures on the stone at the time of its examination, at point A. During his cross-examination a question was also put to the witness regarding seeking opinion on the point of intake of alcohol by the deceased prior to his death to which he replied that to rule out Page 29/116 30 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. intoxication the viscera of the deceased has been preserved and has been handed over to the IO. Report of the same is awaited, therefore, he could not give the opinion with regard to presence/absence of alcohol in the body of deceased.
Ld. Addl. PP for the state pointed out that during the course of trial, after seeking permission of the court, police official of P.S Khajuri Khas, filed report of viscera on 21/7/10, which is admissible u/sec. 293 Cr.P.C., since the IO of this case has been expired and he could not be examined. On perusal of the report of Scientific officer dt. 6/7/2010 it is mentioned as under:
" Vide letter No. 964/R/SHO/Khajuri khas, dt. 24/3/08 two parcels in connection with this case were received on 26/3/08 through H.C Shokender. Parcel No.1 found to contain Ex.1A to Ex.1F(Ex. 1A, 1B and 1C are the empty beer can, Ex.1E one empty multi colour wrapper of kurkure and 1F is one handkerchief having dirty stains).
Parcel No.2 was a wooden box sealed with the seal of SR labelled Page 30/116 31 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
as 43/08 Viscera of Mahesh Kumar which was found to contain Ex.2A ,2B and 2C(Ex.2A was stomach and piece of small intestine with content, Ex.2B was piece of Liver, spleen and kidney and 2C was blood sample of 5ml., in volumn.
On Analysis of the aforesaid exhibits Sr. Scientific Officer gave his opinion on 6/7/10 which is as under:
"On chemical microscopy and GC-HS examination Exhibits '2A', '2B', '2C' were found to contain 'Ethyl Alcohol'. It is also opined that Ex.2C was found to contain Ethyl Alcohol 38.4ml., per 100ml., of the blood."
Xiv)PW.14 is formal witness. He also deposed that on 13/3/08 on the instructions of IO he collected the call details of three mobile phone numbers i.e 9818016912, 9210000966 and 9211168796 and handed over the call details to the IO of this case. He further deposed that IO had informed him that he had brought the call details of phone number 9818016912, infact call details were required of the phone no. 9818016312.
Page 31/116 32 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. During his cross-examination he stated that IO had given him written application to collect the report and he handed over the same to Nodal Officer North East Distt on 13/3/08. He further stated that IO told him that telephone number 9818016312 belongs to accused Amit. Rest of his testimony is reiterated as submitted by him during examination in chief.
xv). PW.15 is Nodal Officer and produced the call details of mobile phone numbers 9211168796 (belonging to accused Ashish Kumar) and 9210000966 ( belonging to accused Rohit Dhingra) for the period 1/1/08 to 12/1/08 and the certified copy of the call detailed of accused Rohit Dhingra are collectively as Ex.PW 15/A(consisting of 14 pages) bearing his signatures at point A. He also produced Certified copy of the call details of mobile phone no. 9211168796 of accused Ashish Kumar vide Ex.PW 15/C (consisting four pages) and the computer print of the call details is also on record. He further deposed that on 10/1/08 between 5.51.17 p.m till 9.52.25 p.m, ten calls were received on mobile phone no. Page 32/116 33 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. 9211168796(belonging to Ashsh) out of which nine calls were received from phone no. 9210000966 ( belonging to Rohit Dhingra) and one call was received from phone no. 41558054 9.19.55 p.m which are mentioned in the report Ex. PW. 15/C from point A to A. He further deposed that similarly on 10/1/08 as per report Ex.PW 15/A, twenty one calls were made from phone no. 9210000966 and six calls were received on the said phone in between 10.45.25 a.m till 9.14.50p.m (belonging to Rohit Dhingra). Out of the aforesaid calls five calls were made from mobile phone of Rohit Dhingra to the mobile phone of co- accused Amit between 10.42.25 a.m till 9.14.50 p.m and seven calls were made from mobile phone of Rohit Dhingra to mobile phone of co-accused Ashu @ Ashish between 8.51.17 p.m till 9.38.42 p.m. On 26/10/09 he was again summoned with the direction to produce ID proof /customer applications form of the aforesaid mobile phones and on that day he produced requisite record wherein it was revealed that Harish Kumar and Ajay Abrahan were found to be the owner of above said mobile phones 9211168796 and 9210000966 respectively. Photo copy of Page 33/116 34 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. the customer applications form on behalf of the applicants are Ex.PW 15/D and Ex.PW 15/E respectively. (Original seen and returned) During his cross-examination he reiterated his testimony as submitted during examination in chief.
Xvi). PW.16 is Nodal Officer Bharti Airtel Ltd., and he deposed that he had seen the certified copy of Airtel prepaid enrollment form of mobile no. 9818016312 ( recovered from the possession of accused Amit) in the name of Ajay Parsad s/o Gyaneshwar Pd., r/o B-592/7 Gali No.7 Sonia Vihar Delhi, same is Ex.PW 16/A bearing the company seal with his initials at point A and the certified copy of ID proof of subscriber is Ex.PW 16/B bearing the company seal with his initials at point A. He further deposed that he had seen the certified copy of call details of above said phone number w.e.f 01.01.2008 to 12.03.2008 same is Ex.PW 16/C ( running into three pages) bearing his signatures at point A on each page. He also produced the certified copy of ID proof with site name and address of Bharti Airtel Ltd.,( running into 89 pages) bearing the seal of company with his initial at point A, same is collectively Ex.PW 16/D. Page 34/116 35 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. He further deposed that on 10/1/08 seven calls were received on the mobile phone number 9210000966 (belonging to Rohit Dhingra) from 9818016312( recovered from accused Amit) between 8.42.01 a.m till 10.31.30 p.m, and one call was received from impugned phone no. 9818016312 to 9871687937 for about 48 seconds( phone No. 9871687937 is owned by one Krishan Kumar s/o Sh. Inder Roy r/o B- 130/2 Sonia Vihar Delhi), as per call details Ex.PW 16/C which are mentioned at portion A to A1 in red pen. The location of the phone number 9818016312 is also shown within the area of Sonia Vihar on 10.1.08 but on 09.1.08 its location was shown in the area of Arya Samaj Mandir, on the document Ex.PW 16/D. Another call was made to same number on 11/1/08 at 8.43 a.m for 100 seconds. Again on 31/7/09 ID proof of phone No. 9871687937 was produced thereby it was found registered in the name of Kishan Kumar s/o Inder Roy r/o B-130/2 Sonia Vihar Delhi. The attested copy of the same is on record and is Ex.PW 16/E and ID proof of Kishan Kumar is ex.PW 16/F bearing the seal of company with his initials at point A. Page 35/116 36 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. He also produced the call details mobile number 9871687937 w.e.f 1.1.08 to 12.3.08 ( running into 23 pages) same is taken on record as Ex.Pw 16/G. He further deposed that location of mobile phone no. 9818016312 on 10/1/08 from 8.30.31 p.m to 10.35.04 p.m was in Sonia Vihar-II as per record of cell ID Chart already Ex.PW 16/D. During his cross-examination he reiterated his testimony as submitted during examination in chief.
On perusal of the call details of mobile phone no. 9211168796 (belonging to Ashish) it is revealed that on 10/1/08 six calls were made to his mobile phone from the mobile phone no. 9210000966 belonging to Rohit Dhingra between 8.51.17 p.m till 9.38.42 p.m and one calls was made on 11/1/08 at 12.47.44 p.m for about 485 seconds.
Xvii). PW.17 deposed that on 13/1/08 a copy of a report of scene of crime examination bearing No. 16/08 dt. 13/1/08 along with lifted chance print marked as Q1 to Q6 were received in their office from crime investigation team North East Distt. Chance print mark Q1 to Q6 along with their negatives which were developed by crime investigation team Page 36/116 37 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. N/E Distt., were also received.
He further deposed that on 17/3/08 specimen finger prints of accused persons namely Rohit Dhingra, Ashish Kumar and Amit Kumar were received from SHO P.S Khajuri Khas in the office of Finger Print Bureau vide diary No. 155/CW/FPB and on 10/4/08 Palm Print of all the accused namely Rohit Dhingra, Ashish Kumar and Amit Kumar were received in the office vide diary No. 221/CW/FPB from SHO P.S Khajuri Khas. He further deposed that all the exhibits i.e chance print, palm print and developed chance print(photographs) were examined by Sh. Aman Kumar Finger Print Expert and before completion of report he has been transferred and this case was assigned to him for further analysis. He further deposed that he analyzed all the exhibits on the following points:
a). Whether print marked Q1 to Q6 are identical
with any of the finger print of the person
mentioned at para 1( c) or not.
b). Whether chance prints marked Q1 to Q6 are
identical with any of the finger print on the record of the bureau or not.
Page 37/116 38 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. After chemical examination he gave his opinion as under:
i. Chance print mark (Q6) is identical with thumb impression marked (S-1) on the finger impression slip of Ashish Kumar s/o Late Sh. Lakhvir Singh.
ii. Chance print mark (Q3) is identical with right palm portion ( below right to next finger) marked (S-2) on the palm impression slip of Ashish Kumar s/o Late Sh. Lakhvir Singh.
Iii. Chance print mark (Q2) is identical with left palm portion ( below left to next finger) marked (S-3) on the palm impression slip of Rohit Dhingra s/o Anil Kumar Dhingra.
iv. Chance print mark (Q4 & Q5) are not identical with finger prints of the person mentioned at para 1( c) above.
v. Chance print mark (Q4) has been searched on the record of the bureau and this print remained unidentified.Page 38/116 39
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
vi. Chance print mark (Q5) is partial print and it cannot be searched on the record of the bureau and this print remained unidentified.
Vii. Chance print mark (Q1) is partial and smudged and does not discloses sufficient number of ridge details in their relative position for comparison hence they were unfit for comparison and search.
He further deposed that he placed description of specimens finger print and enlarged photographs on record. His detailed report is Ex.PW 17/A bearing his signatures at point A. The description of the specimen finger prints/exhibits and chance prints of accused Ashish is Ex.PW 17/B bearing his signatures at point B. The enlarged photographs of the specimen finger prints and chance prints of accused Ashish Kumar is Ex.PW. 17/C bearing his signatures at point C. He further deposed that description of specimen finger prints/exhibits and chance prints of accused Rohit is Ex.PW 17/D bearing his signatures at point D. Enlarged photographs of the specimen finger prints and chance print of accused Rohit is Ex.PW 17/E bearing his signatures at point E. After completion of his report Ex.PW 17/A he supplied the original report Ex.PW Page 39/116 40 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
17/A to Ex.PW 17/E to Const. Nand Kishore on 09/7/09.
During cross-examination by ld. Counsel for accused he admitted that his report Ex.Pw 17/A and documents Ex.PW 17/B to Ex.PW 17/E does not bears the date under his signatures. He also deposed that in the finger print bureau study the exact age of the prints cannot be determined, however, powder would stick easily on the new prints and in the present case powder easily sticked and on the basis of this theory it can be said that prints were not very old.
He further deposed that vide letter No. 892 dt. 17/3/08 addressed to Director Finger Print Bureau Malviya Nagar, the finger prints of accused named above with chance prints lifted by crime team of N/E Distt., on 13/1/08 were sent for comparison and at the end of this letter it was written that palm prints slip of aforesaid accused will be deposited to their office very soon and as per record it transpired that police officials of their own opted to send palm print slips and no requisition was sent by their office. He further deposed that on 30/1/08 a letter no. 139/CW/FPB was sent to SHO P.S Khajuri Khas directing thereby that to sent the palm prints of the suspect, if any. Photo copy of the said letter is Ex.PW 17/DX. He further deposed that vide letter No. 893 Page 40/116 41 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
dt. 17/3/08 he had not received the exhibits stated above, however, same were deposited in the office. He further deposed that in the month of January when the articles like beer tin would be kept open,at the open place, in such circumstances, the finger prints of the person who picked the said bear tin can be lifted after removing moisture from the beer tin. He further deposed that even after placing the beer cane in the open place consequently for two/three days the prints can be found available on the cans if not disturbed in any manner. He also admitted that in his service tenure he had analyzed the first case of such nature in which finger prints were lifted after two/ three days of the incident.
He was further examined on 07/4/10 and on that day he produced a book titled as 'PRACTICAL FINGER PRINTING BY B.C BRIDGES' and in the said book it is mentioned that " finger prints upon objects submerged in water can been dried and successfully developed later" as mentioned at page 236 of the book. He also produced another book titled as 'ROLE OF FINGER PRINT SCIENCE IN POLICE AND JUDICIARY WRITTEN BY A.M PADMANABAN' and on page 80 it is mentioned that 'the articles immersed in water can be taken out carefully and dried in a cool and shady place. After the moisture is Page 41/116 42 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
found completely dried up, the impression can be developed'. In the book referred above 'object means any metallic object including glass, wood, soft leather and cloth etc.' A question was also put by the ld. Counsel for accused to the witness that in the present case the beer cans which were lying at open place for two/three days and lot of dust and dew might have been deposited on the same, whether in such circumstances this case should have been treated differently with the cases in which articles are submerged in water.
Witness replied that in the present case incident had happened in the month of January/winter season and during those days there is least possibility of dust being deposited on the beer cans and possibility of lifting the finger print cannot be ruled out. Witness also referred a particular BMW case wherein finger prints could be developed even after washing of the cars.
Rest of his testimony is reiterated as submitted by him during examination in chief.
Xviii). PW.18 deposed that on13/1/08 on receipt of information from the Page 42/116 43 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
control room N/E Distt., he along with other staff visited the spot i.e 2nd Pushta Dhalan Yammuna River in front of DharamKanta Sonia Vihar Delhi. On reaching there they found four empty beer cans, one empty wrapper of Kurkure lying at the spot. Out of four beer cans three were of make Haywards 5000 premium super strong beer and one tin container was of make King Fisher Strong premium beer of 500 ml, and one handkerchief . He denied the suggestion that chance prints from the said beer cans can neither be lifted nor developed However, he admitted that chance print could not be lifted from the packet of Kurkure. These finger prints were sent to office of Finger Print Bureau for examination. He prepared the report Ex.PW 18/A bearing his signatures at point A. His examination in chief was deferred due to non production of beer cans, wrapper of kurkure, thereafter he was reexamined on 7/12/10 and on that day sealed pullanda sealed with the court seal is opened and three beer cans of Haywards 5000 premium super strong beer and one tin container of King Fisher Strong premium beer of 500 ml, a wrapper of kurkure and handkerchief taken out and the witness correctly identified these beer cans were the same Page 43/116 44 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. from which he had lifted the finger prints at the spot. Beer cans are already exhibited as Ex.P14 to P 17 (inadvertently the number of cans were exhibited as Ex. P14 to P18 in the statement of PW9).
During his cross- examination by ld. Counsel for accused he specifically deposed that he had lifted the finger prints on 13/1/08 in between 11.30 a.m to 12.30 noon. Two constables from police station Khajuri Khas and officials from crime team staff were present at the time of lifting the finger prints. He also stated that they all reached at the spot prior to his reaching there. He also admitted that all the beer cans were lying in an open place near the bank of river and no public person was present at the spot when he lifted the finger prints. He also stated the finger prints were developed by using gray powder and the gray power was found present on the cans when produced in the court. He further stated that after lifting the finger prints from the beer can he handed over the custody of the spot to two constables of P.S Khajuri Khas but he did not mention the presence of two constables in his report as it was not required and no column for the said purpose was provided in the form. Page 44/116 45 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. During his cross-examination he reiterated his testimony as submitted during examination in chief.
Xix). PW.19 is formal witness and deposed that on 26/3/08 as per direction of SHO he took the FSL form along with all the eight exhibits of Biological devision along with sample seals and two pullandas of chemistry devision along with sample seal from MHC(M) and deposited the same in the office of FSL Rohini. He further deposed that till the case property remained with him it was not tampered with.
xx). PW. 20 deposed that on 11/1/08 he was posted as duty officer at P.S Khajuri Khas from 9 a.m to 5 p.m and on that day at about 1 p.m he received the rukka sent by Inspector R.C Ranga through Const. Charan Singh for registration of the case. Accordingly he recorded the FIR No. 14/08, u/sec. 302 IPC. He handed over the copy of FIR and original rukka to the said constable for onwards transmission to Inspector R.C Ranga He produced the original FIR register and proved the copy of FIR as Ex.PW 20/A and made endorsement Ex.PW 20/B. He also send special report of the case to the area Magistrate and senior police officers through special messenger. Page 45/116 46 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. During his cross-examination he reiterated his testimony as submitted during examination in chief.
Xxi). PW.21 deposed that on 11/1/08 at about 9.15 a.m he along with crime team officials reached at the spot i.e 2nd Pushta Sonia Vihar Delhi where SI Kashmira Singh, SHO P.S Khajuri khas and other staff were present and on reaching there he saw a dead body of a male lying towards slant Yammuna Pushta. Blood stained stone were also lying there. He inspected the scene of crime and ASI Vinod was with him in the crime team. No chance print could be notice/found by the crime team on 11/1/08. Thereafter they left the spot. He further deposed that on 13/1/08 he along with crime team official again reached at the spot at about 11 a.m. IO of this case informed him that some empty beer tins were found lying near the bushes. ASI Subhash examined the beer tin and lifted chance print from those beer tins. He prepared the SOC report Ex.PW 21/A bearing his signatures at point A. During his cross-examination by ld. Counsel for accused he deposed that on Page 46/116 47 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. 11/1/08 beer can tins, kurkure wrapper were not noticed near the dead body. On 13/1/08 the place where beer tins and kurkure wrapper were lying, were shown to them by the IO and these were lying at a distance of about 20 fit away from the dead body. But 11/1/08, they could not notice the beer tins and kurkure wrapper near the dead body. He also deposed that on11/1/08 IO was present but he had not told that beer cans, Kurkure wrapper were also lying near the dead body and on 13/1/08 IO was present at the spot when they reached there. He further deposed that on 11/1/08 a considerable public persons were present at the spot and on 13/1/08 only few persons were present.
Rest of his testimony is reiterated by him as submitted during his examination in chief.
Xxii). PW.22 deposed that on 11/1/08 on receipt of DD No.3A Ex.PW 22/A he along with Const. Brij Pal reached at 2nd Pushta Sonia Vihar Delhi at about 8.30 a.m and on reaching there he saw a dead body of a male lying on the stone facing its head towards earth. Blood was lying on the stone after oozing from the head of injured/deceased. He further deposed that soon after his Page 47/116 48 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. reaching at the spot, SHO P.S Khajuri Khas along with other staff reached there. Crime team official also reached there, inspected the spot, photographs of the spot were taken, site plan was prepared, dead body was also inspected by Inspector R.C Ranga. During inspection of the dead body, the left foot of dead body shoe/slipper was intact and on right foot was without shoe, dead body was also found in possession of carry bag. Purse was found lying in the pocket of wearing pant of deceased. Panchnama of dead body was prepared, dead body was sent to GTB hospital, blood sample, earth control, two blood stained stones pieces and one foot wear which was intact on the left foot of dead body, were taken in possession (it is also clarified by the witness that it was a sandal and not the shoe) and seizure memo of articles were prepared which are Ex.PW 20/B to Ex.PW 20/E. Purse and other belongings were also taken in possession vide memo Ex.PW 20/F, all memos bears his signatures at points A. Carry bag was also taken in possession vide memo Ex.PW 12/A, IO prepared the rukka at the spot and case was got registered through Const. Brij Pal. Thereafter they all returned to the police station and case property was deposited in the Malkhana by the IO. He further deposed that on the following day accused Rohit Dhingra was Page 48/116 49 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. called at the police station, he was interrogated and arrested in this case vide arrest memo Ex.PW 5/L and his personal search was conducted vide memo Ex.PW.5/M. Both the memos bearing his signatures at points B. Disclosure statement of accused Rohit Dhingra Ex.PW.5/A bearing his signatures at point A was recorded by the IO, wherein he disclosed the name of his associates as Ashish and Amit. Thereafter accused, IO, he himself and other staff proceeded to Sonia Vihar at the house of Amit but he was not found present there. Accused Rohit further disclosed that accused Amit might be present at a tea shop at Khalsa college and accordingly police reached there and at the instance of accused Rohit, accused Amit was arrested vide memo Ex.PW 5/C and his personal search was conducted vide memo Ex.PW 5/D . Accused Amit was interrogated, his disclosure statement was recorded which is Ex.PW 5/E bearing his signatures at point X. The mobile phone was recovered from the possession of Amit which was taken in possession vide memo Ex.PW 5/F and same was sealed with the seal of RCR. He further deposed that all the police officials proceeded to the house of Ashish. He was found present at the house of his maternal grand mother. He was arrested vide memo Ex.PW 5/G, his personal search was conducted vide memo Page 49/116 50 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Ex.PW 5/H. Mobile phone was also recovered from the possession of Ashish which was taken in possession vide memo Ex.PW 5/K. Disclosure statement of Ashish was recorded which is Ex.PW5/J bearing his signatures at point X. Mobile phone was also recovered from the possession of Rohit at the time of his arrest, vide memo Ex.PW 5/B. He further deposed that on 13/1/08 he again joined the investigation of this case and all the three accused persons were taken at the spot and they all pointed out the place from where dead body was recovered. They also pointed out the place where they had taken the beer which was at a little distance from the place where dead body was found. Four empty beer tin, kurkure wrapper and one handkerchief were found lying there. Those all were taken in possession vide memo Ex.PW 9/A, photographs of the articles were taken by the crime team, thereafter accused Amit led the police party to his house and got recovered Rs.1000/- in denomination of Rs.100/- each which were lying under the mattress of the bed lying in the room. These notes were taken in possession vide memo Ex.PW 9/B, bearing his signatures at point X. All the accused were medically examined. He also identified the case property i.e currency notes of Rs.1000/- in the denomination of Rs.100/- each, Page 50/116 51 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. exhibited as Ex P.1 to Ex.P.10, he also identified the mobile phones recovered from accused Ashish @ Ashu, Amit @ Babloo and accused Rohit Dhingra as Ex.P.11 ,P-12 and P-13. He also identified the beer cans Ex.P.14 to Ex.P.17. Kurkure wrapper as Ex.P-19, handkerchief as Ex.P.20 which were recovered from the 2nd Pushta Sonia Vihar Delhi. He also identified the stone piece as Ex.P.21, carry bag containing clothes Ex.P.22 During his cross-examination by ld. Counsel for accused he clarified that he reached at the spot at about 9 a.m along with Const. Brij Pal. He further clarified that due to huge crowd at the spot he could not see the dead body of the deceased at first instance and he could only see the dead body when he reached near the dead body. He further stated that on that day he was attentive towards the dead body only, SHO reached at the spot along with other staff, crime team also reached there. He further stated that he only stood near the dead body and did not inspected the surrounded area of the spot where the dead body was lying. He further clarified that on the pointing out of the accused persons factum of presence of beer cans at the spot come to the notice of the police officials.
Page 51/116 52
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Xxiii). PW.23 deposed that on 23/2/2008 at the request of IO/ Inspector Ram Chander Ranga/ the than SHO P.S Khajuri Khas, he visited the place of occurrence i.e 2nd Pushta Yammuna Khadar opposite Dharamkanta, Sonia Vihar, Delhi. At the instance of the IO he took rough notes and measurements of the spot. On the basis of those rough notes and measurement he prepared scaled site plan Ex.PW 23/A bearing my signatures at point A and after that he handed over the scaled site plan to the IO.
Xxiv). PW.24 deposed that on 26/3/08 seven sealed parcel were received in the office of FSL Rohini Delhi in connection with the present case. The parcels were opened and he examined the exhibits biologically. On examination the blood was detected on exhibits Ex.P.1(Sandal), Ex.P.2, Ex.3 & Ex.P.4 (pieces of stones having brownish stains), Ex.P.5 ( cotton wool swab having brown stains).
He also opined that blood could not be detected on Ex.8F and Ex.8G.( I.e pair of socks and one Sandal). Piece of stone Ex.3 and 8A i.e Jacket both were Page 52/116 53 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. found containing human blood of group 'B'. His Biological report is Ex.PW 24/A bearing his signatures at points A and B. He also deposed that above said exhibits were also examined by him serologically and his serological report is Ex.PW 24/B which bearing his signatures at point C. The remnants of the above said exhibits after examination were resealed with the seal of VSN, FSL Delhi.
Rest of his testimony is reiterated by him as submitted during his examination in chief.
9. After examination of aforesaid twenty four witnesses and in view of the particulars/ ID proofs disclosed by PW . 15 and PW 16, Both Nodal Officers, of TATA Telecom services and Bharti Airtel respectively, court also directed to examine the owners of the mobile phone as court witnesses and accordingly notices were issued against them and pursuant to the service of notice Harish Kumar s/o Sh. Chetan Lal and Ajay Abrahan s/o Sh. K.D Abrahan appeared and examined as CW.1 and CW.2 respectively. However CW.3 could not appear before the court and due to the reason that his present whereabouts are not known, thereafter Court evidence was closed. Page 53/116 54
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
10.The brief testimonies of CW.s are as follows:
i). CW.1 deposed that he had purchased Tata telephone No. 9211168796 was purchased in the year 2008 and handed over the same to accused Ashu @ Ashish present in the court, in the same year(date and month of purchase could not recollect). He also identified photo copy of his election I-
card and photograph affixed over the form, which was submitted at the time of purchasing the above said mobile phone. He also brought his original election I- card of which the photo copy of the same, is already placed in the judicial file which was submitted by Nodal Officer Tata Indicom., exhibited as Ex.CW.1/A. He had also seen his photograph over the SIM application form Ex.PW 15/D, and admitted that he had handed over all these documents with the form at the time of purchase of the SIM. He also deposed that as per application form the phone was Page 54/116 55 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. purchased on 11/9/07 and thereafter he had handed over the mobile to accused Ashu @ Ashish present in the court, on the date of its purchase.
During his cross-examination he clarified that accused Ashish was known to him as he was residing in the same locality but he failed to disclose the house number of Ashish however, it is stated that he(Ashish) was residing in Gali No.1 and as per request of Ashis @ Ashu he had purchased the above said telephone number in his name and handed over the same to accused, as accused Ashish was not having his ID proof. Accused has paid Rs.500/- and he had paid Rs.200/- as accused was not having Rs.200/- with him. Accused Ashish @ Ashu had not returned the amount of Rs.200/- to him despite demands. He further deposed that accused Ashish told him that he would have help him in registration of his PAN Card. Later on accused Ashu had got prepared his PAN card. He also admitted his signatures on Ex.PW 15/D. Page 55/116 56 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Rest of his testimony is reiterated by him as submitted during his examination in chief.
ii). CW.2 deposed that he had have never purchased telephone no. 9210000966 in his name. He had seen the documents regarding purchase of Tata telephone Indicom No. 9210000966 in the judicial file. He also identified his Photograph over the customer application and the photo copy of the D/L attached with the application but he failed to explain how his photograph and I-card reached to person who had purchased the said telephone number. He also denied his signatures on the customer application form. During his cross-examination by Ld. Addl. PP for the State he denied the suggestion that he had purchased telephone no. 9210000966 on 5/5/06 from SRS communication and lateron handed over the phone to Rohit Dhingra accused present in the court.
Page 56/116 57 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. During his cross-examination by Ld. Counsel for accused he stated that accused Rohit Dhingra is not known to him.
11.Thereafter Court Evidence was closed and case was fixed for examination of accused persons u/sec. 313 Cr.P.C.
12.During the course of examination of accused u/s 313 Cr.P.C they controverted all the allegations as alleged against them and submitted that they were innocent and were falsely implicated in this case. They did not desire to lead defence evidence, therefore, defence evidence was closed and case was fixed for final arguments.
13.I have heard the arguments on behalf of Ld. Addl. PP for state and Ld. counsel on behalf of all the accused.
14.Ld. counsel for accused persons submitted that before convicting the accused under any penal law, it is the duty of the prosecution to prove its case against the accused beyond reasonable doubt and in the present case no Page 57/116 58 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. incriminating corroborative evidence to prove the ingredients of the offence for which accused were charged are brought on record.
15.In support of his contention ld. counsel for accused persons it is submitted that present case is based only on circumstantial evidence but in such cases the evidence should be tested by the touch stone of law related to circumstantial evidence and also placed his reliance on a decided case cited as 'Hanumant Govind Nargukar & Another Vs. State of Madhya Pradesh (AIR 1952 SC 343)' wherein it is observed as under :
"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 should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. 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 the other words, there must be a chain of evidence so far complete as not to leave any Page 58/116 59 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probabilities the act must have been done by the accused."
16.Ld. counsel for accused further placed his reliance on a decided case cited as 'Sharad Birdichand Sharda Vs. State of Maharastra AIR 1984 (SC) 1984' wherein it is observed as under :
"Therein, 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 this court, before conviction could be based on circumstantial evidence, must be fully established. Those are as under :Page 59/116 60
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
(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 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 probabilities the act must have been done by the accused."
17.In support of his contention ld. counsel for accused persons also discussed the confrontation and contradictions in the testimonies of witnesses which are as under:Page 60/116 61
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
a). PW1 and PW . 2 during their examination specifically stated that they had not identified the dead body of their brother deceased Mahesh Nagar at the place where where it was lying but in statement u/s 161 Cr.P.C it is recorded by the IO that PW1 alongwith his brother PW .2 Naveen had gone to Pusta where dead body of his brother was lying and they identified the dead body at the spot at about 10:30/11 a.m. The testimony of PW1 to the effect that he had identified the dead body of his deceased brother at PS is further corroborated by PW2 Naveen as he has also specifically stated that he alongwith PW1 had never gone to the place of recovery of dead body however, the dead body was identified by him at PS. These confrontations in the statement of both the witnesses raises serious doubt upon the investigation conducted by the IO.
b). PW.3 Raj Shree is a witness who was working with deceased Mahesh Nagar and accused Rohit Dhingra on the Page 61/116 62 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
day of incident. During his cross examination by Ld. Addl. PP for state he denied the suggestion that he had met Rohit Dhingra, Mahesh Nagar and two other persons namely Ashish and Amit outside the store at about 8:30 p.m. He also denied the suggestion that he had stated to the police that Ashish and Amit offenly used to come to Mcdonald to meet Rohit Dhingra and also to take burger. He also denied the suggestion that Rohit Dhingra, Mahesh Nagar, Ashish @ Ashu and Amit @ Babloo took a three wheeler when he left them and went away. He also denied the suggestion that all the above named accused persons were talking with each other about taking beer thereby PW3 confronted from his statement recorded by the IO u/s 161 Cr.P.C on material points which again raises a serious doubt upon manner of investigation and of recording statement of witnesses by the IO.
c). PW4 is the photographer who deposed that he had taken 11 photographs and handed over to IO but on perusal Page 62/116 63 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
of four photographs mark D1 to D4 he specifically stated that these were not taken by him which again raises a serious doubt upon the factum of taking photographs of the spot.
d). It is further pleaded that last seen evidence cannot be wholly relied upon if the motive of the accused to kill the victim not proved and also placed his reliance on a decided case cited as 'Virender Kumar Yadav and Mukhtiar Yadav Vs. State of NCT 1995 (3) C.C Cases 236 (DHC)' .
e). PW5 is also the employee of Mcdonald where accused Rohit Dhingra and deceased Mahesh Nagar both were working and during his cross examination he also confronted from his statement on the point that on 10.1.08 at about 8:30 p.m Mahesh Nagar had come to Mcdonald alongwith his employee Rohit Dhingra or that Mahesh Nagar has taken his bag and articles and had gone with Rohit Dhingra outside the store. PW5 also failed to identify all the three mobile phones Page 63/116 64 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. which were allegedly recovered from the possession of accused due to lapse of time.
f). It is further pleaded that as per statement of PW .6 recorded by on 15/1/08 u/sec. 161 Cr.P.C he has been shown as a main witness who had seen accused Amit @ Babloo along with three other boys, one of them was carrying a carry bag and all the four boys had gone to Yammuna Pushta. They all returned at 10 p.m but one boy who was carrying a bag was not with them and on next day he came to know that the dead body of a person having carry bag was lying there.
But during examination of PW6 who is a public witness, he also turned hostile and even during cross examination by Ld. Addl. PP for state he has not supported the prosecution version except the fact that accused Amit @ Babloo was known to him being his neighbour which again raises a serious doubt upon the investigation conducted by the IO.
Page 64/116 65 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
g). PW7 is also a public witness. He also turned hostile and even during cross examination by Ld. Addl. PP for state he has not supported the prosecution version. He even failed to identify accused Amit @ Babloo, despite of the fact that he was also cited as a main witness who had seen all the accused persons along with deceased Mahesh Nagar, prior to commission of offence.
h). PW8 Ct. Brij Pal and PW .22 SI Kashmira Singh reached at the spot on 11.1.08 on receipt of a call with regard to the fact that dead body was lying at IInd Pusta, Sonia Vihar, opposite Dharam Kanta and they both no where stated that they had seen the beer cans near the dead body which were allegedly recovered in their presence on 11.1.08. Ld.c onsel for the accused persons also placed his reliance on a decided case cited as 'Mani Vs. State of Tamil Nadu (2011) 1 SC Cases (Crl) 1001'.
Page 65/116 66 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
I). PW9 HC Satish Kumar in his statement stated that nothing was recovered from the possession of accused Rohit Dhingra in his presence but he further stated that one mobile phone was recovered from the possession of accused Rohit Dhingra which raises a serious doubt upon the testimony of PW9 HC Satish Kumar with regard to recovery of mobile phone from the possession of accused Rohit Dhingra. The factum of ownership of mobile phone is also not proved, however CW.2 on the basis of whose ID proof the SIM was obtained specifically stated that neither he had signed the application form nor he had ever handed over the documents to the accused for purchasing the mobile phone, thereby it is established that the mobile phone allegedly recovered from the possession of accused Rohit Dhingra was not belonging to him and also raises a serious doubt on the point of recovery of mobile from possession of accused Rohit Dhingra.
j). PW11 who had taken the photographs of the beer Page 66/116 67 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
cans also not disclosed any date of taking photographs during his examination before the court which again raises doubt upon the presence of beer cans at the spot.
k). PW12 is the public witness. He also failed to disclose the date, month and year of incident and only during cross examination by ld. Addl. PP for state he stated that it might be the incident of 11.1.08 which he has forgotten due to lapse of time.
L). PW13 is the doctor who conducted the postmortem of dead body. PW14 is the formal witness who had gone to the office of Nodal Officer of North East and collected the call details of all the concerned mobile phones which were allegedly recovered from the possession of accused.
m). PW15 and PW16 both are the Nodal Officers and they also failed to place on record the detail of conversation Page 67/116 68 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
having taken place among the accused persons and only on the basis of fact that accused persons had made calls among them on their mobile phones is not the ground to make a chain of circumstances against the accused persons.
n). PW17 is the finger print expert. In his testimony it is stated that on 17.3.08 finger prints of accused persons were received from SHO Khajuri Khas in the office of Finger Print Bureau vide diary no. 155/CW/FPB and on 10.4.08 palm prints of all the accused were received diary no. 221/CW/FPB from SHO PS Khajuri Khas and neither SHO PS Khajuri Khas nor any other police official is examined to prove the fact that on 173.08 and 10.4.08 the finger print and palm prints of the accused were sent to Finger Print Bureau. Non examination of IO on the point of sending the finger prints to the office of finger print bureau is very much fatal to the prosecution and this fact alone is sufficient to demolish the case of the prosecution.
Page 68/116 69 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
o). It is further pleaded that the evidence of finger print expert is not substantive evidence and such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record and reliance is also placed on a decided case cited as 'Musheer Khan @ Badshah Khan Vs. State of Madhya Pradesh 2010 Supreme Court 762'.
p.) IO who has taken the finger print has not been examined which in itself is again a serious lapse in proving the case by the prosecution and also placed his reliance on a decided case cited as 'Sanjay Thakur Vs. State (Govt. of NCT of Delhi) 2007 AD (Cr)-5-98'.
q). Ld.c ounsel for accused persons further placed his reliance on a decided case cited as 'Chandran @ Surendran and another Vs. State of Kerala RCR 1990 (3) page 644'. It is further pleaded that the specimen finger prints/palm prints Page 69/116 70 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
which were admittedly not taken before the Magistrate and also after the lapse of time when accused was in custody and in such circumstances conviction on the basis of finger print report cannot sustain and also placed his reliance on a decided case cited as 'Mohd. Aman and another Vs. State of Rajasthan AIR 1997 SC 2960'.
r). PW18 specifically stated that on 13.1.08 on receipt of an information by the crime team he reached at the spot I.e IInd Pusta Yamuna River in front of Dharam Kanta, Sonia Vihar and found four empty beer cans and one empty polythene wrapper KURKURE lying on the spot. On the other hand PW8 Ct. Brij Pal and Kashmira Sigh PW22 both visited the spot immediate on receipt of information on 11.1.08 and they had not seen any beer cans and KURKURE wrapper at the spot. It is further pleaded that finger prints also not taken after seeking permission of the court and factum of taking finger print is also not proved as IO of this case is not Page 70/116 71 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
examined.
s). PW19 and PW20 both are the formal witnesses.
PW21 is the member of crime team and he deposed that IO informed him that some empty beer cans were found in the bushes near the dead body and accordingly he lifted six chance prints from those beer cans. On the other hand the crime team official also visited the spot prior to 13.1.08 and during his cross examination he specifically deposed that on 11.1.08 beer tin, kurkure wrapper were not noticed near the dead body and only on 13.108 the beer tin and kurkure wrapper were shown to them by the IO which were at the distance of about 20 feet away from the dead body which again raises a doubt upon the recovery of empty beer cans and kurkure wrapper from the spot.
t). PW22 during his cross examination also confronted on many points such as he stated in his statement u/s 161 Page 71/116 72 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
Cr.P.C that empty beer tins were pointed out by the accused persons and thereafter this fact came to their notice and also stated that kurkure wrapper was also found present there and IO had wrapped tin container after getting the photographs but on perusal of statement u/s 161 Cr.P.C these facts are not recorded by the IO.
u). On perusal of the report of the scientific officer it is also brought on record that no blood group was detected on Ex. 8F and 8G i.e a pair of socks and one sandal which were allegedly worn by the deceased, however, on another sandal Ex.1A the blood was detected. On many exhibits i.e on one sandal, pieces of stone, another piece of stone, cotton wool swab, jacket, sweater, T-shirt, pants with belt, underwear, blood stained gauze cloth no blood group was detected and only on jacket Ex.8a and piece of stone Ex.3 the blood group B was detected which again raises a serious doubt upon the investigation conducted by the IO who had also not been Page 72/116 73 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
examined.
18.In view of the aforesaid contradictions discussed above it is established that prosecution could not prove its case beyond reasonable doubt against the accused persons and requested for their acquittal.
19.On the contrary Ld. Addl. PP for state submitted that prosecution examined 24 witnesses in support of its case and two witnesses were examined as court witnesses. On perusal of the testimony of all the PW's and all the court witnesses it is established that prosecution has succeeded in proving the unbreakable chain of circumstances against the accused persons to prove its case as alleged against them for which they have been charged.
20.In support of his aforesaid contention it is submitted that :
a). PW1 and PW2 both brother of deceased Mahesh Nagar proved the factum of identification of dead body at PS vide identification memo Ex.PW1/A and mere mentioning the fact that PW1 and PW2 identified the dead Page 73/116 74 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
body of their deceased brother at the spot where it was lying is an irregularity, however, on perusal of the testimony of PW1 and PW2 it is clearly established that they had identified the dead body of their deceased brother at PS and not at the spot. Even otherwise the role of both the PWs is only to identify the dead body of their brother and also to disclose the fact that he was working in Mcdonald, therefore, confrontation in their testimonies as relied upon by the Ld. counsel for the accused persons is liable to be rejected.
b). PW3 and PW5 both were the employees of Mcdonald and they both were known to accused Rohit Dhingra and deceased Mahesh Nagar. PW3 specifically stated that on 10.1.08 at about 8/8:30 p.m he alongwith Mahesh Nagar came out from their office and Rohit Dhingra also met them. One boy was also with Rohit Dhingra and he had seen him first time. He further deposed that he alongwith Rohit Dhingra, deceased Mahesh Nagar, and Page 74/116 75 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
another boy proceeded towards Shivji Stadium and on the next day he came to know that Mahesh Nagar was murdered and confrontations as alleged by Ld. Counsel for accused to the fact that PW3 stated before the police official that Rohit Dhingra and Mahesh Nagar were fast friends, he met Rohit Dhingra, Mahesh Nagar and two other persons namely Ashish and Amit outside the store at about 8:30 p.m. and that Ashish and Amit offenly came to meet Rohit Dhingra to take burger etc.,is no avail. However, during his cross examination he specifically stated that Rohit Dhingra, Mahesh Nagar and another boy who was with Rohit Dhingra went away towards Shivaji Stadium when he left them. The aforesaid confrontations are of trivial in nature and are not sufficient to break the chain of circumstances however, on over all appreciation of the testimony of PW3 and PW5 it is established that accused Rohit Dhingra alongwith another person were last seen with deceased Mahesh Nagar at about 8/8:30p.m. The factum of having beer cans by Page 75/116 76 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
deceased Mahesh Nagar is also proved and factum of consuming the beer/liquor is further proved by scientific officer who had examined the viscera preserved by the doctor at the time of conducting the postmortem and in his report dated 6.7.10 he specifically opined that on chemical microscopic and GC-HS examination Exhibit 2A (stomach and piece of small intestine with contents), Exhibit 2B i.e pieces of liver, spleen and kidney and Exhibit 2C i.e blood sample taken from the body of deceased were found to contain Ethyl Alcohol which clearly goes to show that before committing the murder of deceased Mahesh Nagar he was made to took the beer/liquor . Exhibit 2C i.e blood sample was also found to contain Ethyl Alcohol 38.4 mg per 100 ml of blood which again corroborates the fact that deceased was compelled to take more beer/liquor than his other associates. In the report it is also opined that no metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could be Page 76/116 77 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
detected in the Ex.1A, 1B, 1C, 1D, 1E and 1F. Exhibit 1A to 1D are four empty metallic canes and Exhibit 1E is one empty multi coloured wrapper labelled as "Kurkure Masala Munch" and Exhibit 1F is one dirty white with blue coloured cross lines check designed handkerchief having dirty stains.
c). PW4 is the photographer who had proved the fact that he had taken the photographs of the dead body from different angles from the spot i.e near Yamuna Pusta.
d) PW5 further corroborates the fact that deceased Mahesh Nagar was working in Mcdonald and on 10.1.08 he was working in the night shift and deceased Mahesh Nagar was working in the morning shift and on that day he had finished his duty at about 5 p.m. He specifically stated that he started his duty at about 7 p.m and Mahesh Nagar came back to the Mcdonals after 7 p.m and he requested him to keep his bag and went inside the Mcdonals as he had to go Page 77/116 78 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
to attend some party but Mahesh Nagar left the Mcdonals without keeping his bag. He further stated that between 12 midnight and 1 a.m Rohit Dhingra (accused present in the court ) again came to Mcdonals and one another boy who is present in the court was also with Rohit Dhingra (he pointed out towards accused Ashish). They both took burger and coke. It is further pleaded that disclosure statement of accused Rohit Dhingra was recorded on 12.1.08 in the presence of PW5 who is a public witness and PW5 also put his signature as a witness on the statement Ex.PW5/A. He specifically stated that accused Rohit Dhingra disclosed the manner as to how he had committed murder of Mahesh Nagar with his two associates. He also proved the factum of recovery of mobile phone from the possession of Rohit Dhingra vide memo Ex.PW5/B. He also proved the factum of arrest of accused Babloo from Dev Nagar at the instance of accused Rohit Dhingra. His disclosure statement was also recorded in his presence thereby he also admitted the Page 78/116 79 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
factum of committing the murder of deceased. He also signed the disclosure statement of accused Babloo Ex.PW5/E as a witness at point A and mobile phone was also recovered from his possession in his presence. Accused Ashish was also arrested from Dev Nagar on the pointing out of accused person. He also made disclosure statement in his presence bearing his signature. One mobile phone was also recovered from his possession. The aforesaid testimony of PW5 further adds a link in making a chain of circumstances alleged by PW1, PW2 and PW3. The plea taken by Ld. Counsel for accused that PW5 failed to identify the mobile phones is not tenable as he has specifically stated that due to lapse of time he cannot identify the mobile phones but three mobile phones were recovered from the possession of accused persons and factum of having of these mobile phones by the accused is further corroborated by the court witnesses i.e CW1 and CW2 and also by the police witnesses.
Page 79/116 80 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
e). PW6 and PW7 admittedly not supported the prosecution version but PW6 stated that accused Amit @ Babloo was well known to him as he was his neighbourer.
f). PW8 and PW22 both corroborated the fact that on receipt of information they both reached at the spot i.e 2nd Pusta Sonia vihar opposite Dharam Kanta and on reaching there they saw dead body of a male person facing towards earth. SHO PS Khajuri Khas and crime team also reached at the spot, photographer was also called. IO prepared rukka and sent to PS through PW8 for registration of the case.
g). PW9 corroborates the fact that on 12.1.08 he alongwith Inspector Ramesh Kumar Dhaiya went to GTB hospital and from there he alognwith Inspector Dahiya, SI Kashmira Singh and one public person Vijay Sharma went to Babloo's house but he was not found present there and Page 80/116 81 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
was ultimately arrested from a tea shop at Mall Road near Khalsa College at the instance of Rohit Dhingra. He also corroborated the factum of recording disclosure statement of Rohit Dhingra and Amit @ Babloo and recovery of mobile phones from their possession. He also corroborated the factum of arrest of accused Ashu from his Nanee's house. Factum of recording his disclosure statement and factum of recovery of mobile phones is also corroborated by him. He also corroborated the fact that at the instance of accused persons blood stained handkerchief and 3-4 empty boxes of beer tin, blood stained stones were also taken in possession from the spot. He also identified the case properties i.e Ex.P14 to P21.
h). PW10 proved the factum of preparing panchnama of dead body and he also proved that he remained at GTB hospital with dead body as a guard and after postmortem dead body was handed over to his relative and this fact is Page 81/116 82 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
further corroborated by PW12.
I). PW11 proved the factum of taking photographs of the beer canes which were lying 20 feet away from the dead body and photographs are Ex.PW11/A to Ex.PW11/C.
j). PW12 proved the factum of presence of dead body near river bank and he alongwith another persons reached there and found crowd of many persons at the spot. He also proved the fact that dead body was having a bag of blue colour and he also identified the carry bag Ex.PW12/Art.1. During cross examination he also disclosed the date, month and year of the incident i.e 11.1.08.
k). PW13 conducted the postmortem of the dead body and gave his opinion with regard to the cause of death wherein injury no. 5,6,7 & 8 mentioned in the postmortem report were possible with stone and all the aforesaid injuries Page 82/116 83 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
are sufficient to cause death in the ordinary course of nature individually or collectively. He also identified the stone which was produced before him for subsequent opinion on 27.02.08 and stone is Ex.PW13/Art.1.
l). PW14 is the formal witness. He had only gone to Nodal Office and collected the call details belonging to deceased respectively.
m). PW15 and PW16 both are the Nodal officers and proved the certified copy of the call details of the phone numbers allegedly recovered from the possession of accused. PW15 specifically stated that on 10.1.08 many calls were received on mobile phone bearing no.
9211168796 from mobile phone bearing no.9210000966 between 8:30 p.m and 10 p.m which are mentioned on Ex.PW15/C. He further stated that similarly on 10.1.08 as per record Ex.PW15/A many calls were made from phone Page 83/116 84 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
no. 9210000966 to phone no. 9211168796 and also on phone no. 9818016312. PW16 also clarified the fact that on 10.1.08 the location of mobile phone bearing no.9818016312 from 8:39 to 10:35 p.m was in Sonia Vihar as per record of Cell ID Chart Ex. PW16/D.
n). PW18 ASI Subash Chandra from the office of Finger Print Bureau, Malviya Nagar, New Delhi proved the fact that on 13.1.08 he alongwith members of crime team reached at second Pusta Dhalan, Yamuna Vihar in front of Dharam Kanta Sonia Vihar and found four empty beer canes and one empty polythene wrapper KURKURE lying at the spot. Out of four empty canes, three were of make Haywards 5000 and one was of king fisher each measuring 500 ml. He specifically stated that he developed six chance prints from said beer canes and no chance print from the packet of Kurkure were taken and same were sent to Finger Print Bureau for examination. He prepared his report Page 84/116 85 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
Ex.PW18/A. He also identified all the beer canes Ex.P14 to P17 which has been wrongly exhibited as P14 to P18 in the statement of PW9.
o). PW17 corroborated the testimony of PW18 to the fact that PW18 developed six chance prints from the beer canes found lying at the spot which were sent to his office on 13.1.08 alongwith scene of crime examination report bearing no.16/08. He further deposed that the chance prints were mentioned as Q1 to Q6. He also proved that on 17.3.08 finger print of accused persons namely Rohit Dhingra, Ashish Kumar and Amit Kumar were received in his office from SHO PS Khajuri Khas vide diary no.
155/CW/FPB and on 10.4.08 palm prints of all the above named accused persons were received in his office vide diary no. 221/CW/FPB from SHO PS Khajuri Khas and on analyzing the chance print mark Q-6, it was found identical with thumb impression marked (S-1) on the finger Page 85/116 86 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
impression slip of Ashish Kumar s/o late Sh. Lakhvir Singh and chance print mark Q-3 was also found identical with right palm portion mark S-2 on the palm impression slip of Ashish Kumar.
It is also opined that chance print Q-2 was found identical with left palm portion mark S-3 on the palm impression slip of Rohit Dhingra s/o Anil Kumar Dhingra.
However, chance print mark Q-4 and Q5 were not found identical with finger prints of the any of accused person mentioned in para 1 (C) above which clearly goes to show that the presence of accused persons at the place of commission of crime is fully established. PW19 proved the factum of depositing all the exhibits on 26.3.08 in the office of FSL Rohini.
p). PW20 proved the factum of registration of FIR no. Page 86/116 87 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
14/08 on the basis of rukka sent by Inspector R.C. Ranga through Ct. Brij Pal, copy of FIR is Ex.PW20/A.
q). PW21 is the member of crime team and he corroborated the testimony of PW17, PW18 and PW19 and other police officials. PW22 also corroborated the testimony of all the police officials including crime team officials. PW23 is the draftsman who prepared the scaled site plan Ex.PW23/A at the instance of IO of this case and PW24 is the Senior Scientific Officer who has proved the report Ex.PW24/B thereby it is established that blood stained stone and clothes which were taken in possession were stained with blood of human origin with group B, thereby it is established that the blood stained stone recovered from the spot was used by causing the death of the deceased. It is further pleaded that the possibility of causing the injury with blood stained stone allegedly recovered from the spot is Page 87/116 88 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
proved by the doctor who had conducted the postmortem of the dead body. Doctor who had conducted the postmortem, specifically opined that injury no. 5,6,7 and 8 are sufficient to cause of death in ordinary course of nature individually or collectively and possibility of causing said injury with the blood stained stone brought on record cannot be ruled out.
21.In rebuttal to the contentions of ld. counsel for accused on the point of absence of motive to commit the crime Ld. Addl PP for the state submitted that accused Rohit Dhingra in his disclosure statement clearly stated that he and deceased Mahesh Nagar were working at Mcdonald and during the said period he established his friendship with him. They both used to take beer and also used to talk about girls. He further disclosed as follows:
' MAINE EK DIN APNI GIRL FRIEND VINITA JO GOL MARKET ME REHTI HAI KO MAHESH NAGAR SE MILVA DIYA, USKE BAAD MAHESH NAGAR VINITA SE BAATE KARNE LEGA AUR UNME APAS MEIN NAZDIKIYA BARHTI CHALI GAI, JO MUJHE SEHAN NAHI HUA, MAINE MAHESH NAGAR KO RASTE SE HATANE KI THAAN LEE, TATHA DINANK 7/1/08 KO Page 88/116 89 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
MAINE YEH SARI BAATE APNE PURANE DOST AMIT @ BABLOO VA ASHISH @ ASHU JO DEV NAGAR MEIN REHTE HAI KO BATAI, TATHA MAINE UNKE SAATH MAHESH NAGAR KO MARNE KI YOJNA BANAI, TATHA UNKO RUPIO KA LALACH DE KER MAHESH NAGAR KO MARNE KE LIYE TAYAR KIYA JO YEH SAARI BAATE MAINE APNE MOBILE PHONE SE AMIT AUR ASHISH SE ISS BAARE ME BAATE KI THEE."
The motive of killing Mahesh Nagar is disclosed by accused Rohit Dhingra in his aforesaid disclosure statement. The said statement can only be proved only by maker of the statement or by Vinita girl friend of accused Rohit Dhingra, whose whereabouts were very well under the control of accused Rohit Dhingra, which cannot be proved by the prosecution in a manner, other facts are required to be proved and disclosure statement alone is sufficient to establish the motive to commit the crime and also placed his reliance on a decided case cited as "State of Himachal Pradesh Vs. Jeet Singh AIR 1999 Supreme Court 1293" wherein it is observed as under :
"It is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would Page 89/116 90 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
It is further observed as under :
"There is nothing in Section 27 of Indian Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others."
It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence u/s 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main road side or if it is concealed, beneath dry leaves lying on public places or kept Page 90/116 91 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
22.In view of the aforesaid testimony of the witnesses it is established that prosecution succeeded in making unbreakable chain of circumstances to prove its case against the accused persons and requested for convicting all the accused for the offences as alleged against them.
23.After hearing arguments and in view of the evidence adduced by the prosecution and for the purpose of appreciating the evidence discussed above I placed my reliance on a decided case cited as "SHANTABAI & ORS. VS Page 91/116 92 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. STATE OF MAHARASHTRA 2008(2) JCC 1080"
"This court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following test:
i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii) Those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
iii)The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
iv)The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any 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.
!#" I
$ % '& $( )% +*-,. / $0 )% . 1 . 2 ) 2 .)% .) / 2 . Swami
Shardanand @ Murli Manohar Mishra Vs. State of Karnataka AIR 207 SC Page 92/116 93 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.2539
3 $ % 4 0 Shaik Mastan Vali's )% 5 6 () 7 8 :9 ;$ $ 6 3 (1)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 person.
(2)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.
(3)Where the case depends 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 home the offences beyond any reasonable doubt.
(4)Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.
24.In view of the rival contentions raised by Ld. counsel for both the parties I carefully perused the testimonies of witnesses as well as the confrontation Page 93/116 94 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. and contradictions brought on record by Ld. counsel for the accused and analyzed the same in view of observations given by their Lordships on the decided cases discussed above and is of the considered view that the prosecution had succeeded in proving the following circumstances against the accused Rohit Dhingra and Ashish @ Ashu :
a). Initially on 11/1/08 at about 8.32 a.m an
information was received through PCR/W.Ct. Anju that a
dead body was lying near 2nd Pushta DharamKanta, Sonia Vihar Delhi vide DD no.3A which is Ex.PW. 22/A and this fact is further corroborated by PW .8 Const. Brij Pal.
b). PW .1 Mukesh and PW .2 Naveen identified the dead body as is of their brother Mahesh Nagar and PW .1 also proved that his brother/deceased Mahesh Nagar was working in Mcdonald Cannought Place. The factum of his working at Mcdonald is further corroborated by PW .3 Rajshree and PW .5 Vijay Sharma, Restaurant Manager of Mcdonald. The factum of taking photographs of dead body is further corroborated by PW.4 Ravi Kumar.
c). PW .3 had last scene the deceased Mahesh Nagar and Rohit Dhingra on 10/1/08 at about 8/8.30 p.m Page 94/116 95 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
along with another boy while proceedings towards Shivaji Stadium and on the next day he came to know that Mahesh Nagar was murdered. PW .5 Vijay Sharma corroborated the fact that on 10/1/08 he was working in the night shift and Mahesh Nagar was working in the morning shift. He started his duty at 7 p.m and thereafter Mahesh Nagar came back to Mcdonald during his duty time and requested him to keep his bag but he left the Mcdonald without keeping his carry bag. He further proved the fact that Rohit Dhingra along with one boy pointing towards accused Ashish( correctly identified by him) again reached at Mcdonald Regal between 12 mid night and 1 a.m and took eatables I.e Burger and coke and on next day he received an information from the house of Mahesh Nagar that Mahesh Nagar had not reached at his house in the night.
d). It is also proved by PW .3 that Mahesh Nagar was having beer tin with him. This fact is further corroborated by PW .9 H.C Satish Kumar in whose presence four empty tin of beer and other articles were recovered at the instance of accused from the spot. The factum of presence of beer tin at the spot is further corroborated by PW .18 ASI Subhash Chander who had developed six chance prints from the said beer tins and prepared his report Ex.PW. 18/A and beer tins Page 95/116 96 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
are Ex.P-14 to P-17.
e). The aforesaid testimonies of PW.3, PW.9 and PW.18 is further corroborated by PW .21 who have specifically stated that on 13/1/08 he along with crime team officials reached at the spot at about 11 a.m and on that day IO informed him that some empty beer tins were found near bushes. ASI Subhash Chand after examining the beer tin lifted six chance prints from those beer tin. On verifying the fact he prepared his SOC report Ex.PW 21/A.
f). The blood stained Sandal worn by the deceased, blood stained stone in two pieces found under the head of the dead body, blood sample which was lying at the spot, earth control, black colour purse which was in the pocket of pant of deceased and carry bag which was in possession of deceased, all were taken in possession. All these exhibits were analyzed by Sr. Scientific Officer Biology vide his report Ex.PW 24/A and 24/B respectively and during analysis human blood was detected on Sandle, on all the pieces of stones, on cotton wool swab, and on all the clothes which were taken in possession except one pair of socks and one sandle. The blood on jacket and blood on piece of stone were found to be same blood group 'B'.
Page 96/116 97 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
g). The postmortem of dead body was conducted and the dead body was handed over to PW .1 and PW .2(both brothers of deceased). It is also proved that after conducting postmortem PW .13 Dr.Sumit Tellewar handed over the sealed envelope containing copy of postmortem report bearing No. 43/08, clothes worn by the dead body, blood on gauze and a duly sealed wooden box containing viscera. The said viscera was got analyzed by the Sr. scientific officer Chemistry FSL Rohini Delhi and on chemical microscopy and GC-HS examination Ex.2A I.e stomach and piece of small intestine with contents, Ex.2B I.e piece of liver, spleen and kidney and Ex.2C blood sample taken from body of deceased, all were found to contain Ethyl Alcohol and Ex.2C was found to contain Ethyl Alcohol 38.4mg., per 100 ml. of the blood
h). On the basis of last scene evidence mentioned in sub para C above accused Rohit Dhingra, Ashish @Ashu and Amit @ Babloo were interrogated and during interrogation they all made their disclosure statements in the presence of PW .5 Vijay Sharma and other police officials. The disclosure statement of Rohit Dhingra is Ex.PW 5/A, of accused Ashis is Ex.PW.5/J and is of Amit is Ex.PW. 5/E and accused Rohit Dhingra in his disclosure statement dt. 12/1/08 stated as Page 97/116 98 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
under:
"He has been working at Mcdonald Cannaught Place since last seven months and during the said period he established his friendship with deceased Mahesh Nagar. They both used to take beer and to talk about the girls. He further disclosed that he had introduced his girl friend Vinita who is residing at Gol Market to Mahesh Nagar. Thereafter Mahesh Nagar started establishing relations with his girl friend Vinita which he could not tolerate, thereafter, he determined to teach him a lesson. He further disclosed that on 7/1/08 he narrated the whole incident to their friends namely Amit @ Babloo and Ashish @ Ashu(both accused in this case) and he along with them made a plan of killing Mahesh Nagar. He also had a talk with Amit and Ashish on this account from his mobile phone to their mobile phones and as per plan on 10/1/08 at about 8.30 p.m they all along with Page 98/116 99 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
Mahesh Nagar gathered out side the Mcdonald, hired an Auto from Shivaji Stadium, Mahesh Nagar kept four beer tins in his bag and at about 10.30 p.m they all reached at the stipulated place at 2nd Pushta Sonia Vihar which was told by co-accused Amit @ Babloo for taking beer. He (Rohit Dhingra) had not taken beer however, he got consumed two beer tin to Mahesh Nagar (JISSE USKO NASHA HO GAYA). He further disclosed that when he shown his willingness to kill Mahesh Nagar, he(Mahesh)started running towards Pushta in the mean time co-accused Amit and Ashish caught hold of him and dragged him due to which he (Mahesh Nagar) fell down on the stone, he (Rohit Dhingra)picked up a stone and landed a stone blow on his head. He also landed a 2nd stone blow on his head due to that he (Mahesh Nagar) died.
Thereafter he and Ashish returned to their houses in TSR and Amit had gone to Page 99/116 100 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
his house at Sonia Vihar. He also disclosed that on that day at about 12.30 a.m after mid night he along with Ashish again went to Mcdonald Cannaught Place and took Burger and Coke." Co-accused Amit and Ashish also made their disclosure statement in the same manner and thereby they both corroborated the disclosure statement made by accused Rohit Dhingra.
I). Mobile phone bearing No.9210000966 was recovered from the possession of accused Rohit Dhingra, Mobile phone No. 9211168796 was recovered from possession of accused Ashish @ Ashu and mobile phone No. 9818016312 was recovered from the possession of accused Amit @ Babloo in the presence of PW .5 Vijay Sharma and other police officials. Call details of all the mobile phones were collected by PW .14 Const. Kuldeep and has been further corroborated by PW .15 and PW .16 Nodal officers Tata Tele services and Bharti Airtel Ltd., respectively. On perusal of the call details it is established that all the accused persons had conversation between them on their mobile phones on 10/1/08 between about 8.30 p.m to 9.38 p.m. Page 100/116 101 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
j). On perusal of call detail of Ex.PW.16/C portion A to A it is established that on 9/1/08 when accused Amit made four telephonic call from his mobile no. 9818016312 to the mobile phone of Rohit Dhingra, during that period mobile phone of Rohit Dhingra was in the area of Arya Samaj Road and when accused Amit made call on 10/1/08 from 8.42.01p.m till 10.21.03p.m the mobile phone of Rohit Dhingra was in the area of Sonia Vihar. PW . 16 also proved that on 10/1/08 from 8.39.31 p.m to 10.35.04 p.m the location of mobile phone no. 9818016312 was within the area of Sonia Vihar -II as per record of cell ID chart already Ex.PW. 16/D. PW .15 also proved that on 10/1/08 various calls were received on no. 9211168796 allegedly recovered from the possession of Ashu @ Ashish from phone No. 9210000966 allegedly recovered from accused Rohit Dhingra between 8.30 p.m to 10p.m and similarly on 10/1/08 many calls were made from phone no. 9210000966 to phone No. 9211168796 and also on phone no. 9818016312.
k). PW. 15 produced ID proof for seeking registration of mobile phones bearing no. 9211168796 and 9210000966 allegedly recovered from the possession of accused Ashish and Rohit Dhingra respectively. As per their record, these mobile phones were found registered in the name of Harish Page 101/116 102 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
Kumar and Ajay Abrahan. They both were examined as CW.1 and CW.2 respectively. CW.1 specifically deposed that he had handed over the TATA telephone no. 9211168796 to accused Ashish @ Ashu which was obtained on the basis of his ID proof and photographs. He also proved that as per application form, phone was purchased on 11/2/07 and he had handed over the same to accused Ashish on the date of its purchase.
CW.2 specifically stated that he had never purchased the telephone bearing no. 9210000966 in his name but he admitted that said number was obtained on the basis of photocopy of his Driving Licence and his photographs but he denied the signatures appearing on the customer application. No evidence in rebuttal to the fact that the mobile no. 9210000966 was neither used by him on the date of incident nor it was in his possession nor it was recovered at his instance, is brought on record by accused Rohit Dhingra . In such circumstances there is no reason to disbelieve the testimony of PW .5 and other police officials with regard to recovery of mobile phone from the possession of accused Rohit Dhingra.
l). The six chance print lifted from the beer cans and specimen finger prints/palm prints of all the three accused Page 102/116 103 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
were sent in the office of Finger Print Bureau for comparison and on examination chance print Q6 and chance print Q3 were found identical with left thumb mark S1 and right palm portion mark S2 on the impression slip of Ashish Kumar s/o Late Sh. Lakhvir Singh and the chance print mark Q2 were found identical with the left palm portion mark S3 on the palm impression slip of Rohit Kumar Dhingra s/o Anil Kumar Dhingra, however, no incriminating fact was detected against accused Amit @ Babloo. The report is Ex.PW 17/A.
m). Blood stained stone was recovered from the spot at the instance of accused persons, was handed over to Dr. Sumit Tellewara for seeking subsequent opinion and on examining the given stone and on reviewing the postmortem report No. 43/08 of deceased Mahesh Nagar it was opined that injury No. 5,6,7 and 8 as mentioned in the PM report were possible with this stone and injury no. 1,2,3 and 4 are un likely to be caused with this stone. It is also opined that injury No. 5,6,7, and 8 as mentioned in the PM report are sufficient to cause the death in the ordinary course of nature individually and collectively. The postmortem was conducted on 12/1/08 between 11.05 a.m to 1 p.m and on that day it was opined that time since death was about one and half days and cause of death was opined due to shock as a result Page 103/116 104 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
of antimortem head injury produced by blunt force impact. The postmortem report is Ex.PW.13/A and the subsequent opinion is Ex.PW 13/B.
25.No evidence in rebuttal to the evidence produced by the prosecution is brought on record by the accused persons. In such circumstances there is no reason to disbelieve the testimonies of PW .3, PW .5 and other witnesses including the scientific officer, finger print experts and police officials. All the accused persons were examined under sec. 313 Cr.P.C and during their examination they denied all the evidence brought on record against them including the electronic as well as scientific evidence. They all even denied that they had conversation on their mobile phone between 8.30 p.m till 10.38 p.m on the day of incident, despite of the fact that this fact is proved by the Nodal Officers and is admissible in evidence as provided u/sec. 65B, therefore, such conduct of the accused persons is relevant as per provision of section 8 of the Indian Evidence Act, which reads as under:
"Motive, preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.Page 104/116 105
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceedings, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1 : xxxxxxxxxxxx Explanation 2 - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."
26.The prosecution placed reliance on the following circumstances to prove its case against co-accused Amit @ Babloo:
a). In the statement recorded of PW .3 Raj Shree recorded u/sec. 161 Cr.P.C by the IO it is mentioned that PW .3 had seen deceased Mahesh Nagar with Rohit Dhingra, Ashish @ Ashu and Amit @ Babloo during his examination before this court he specifically denied that he had not seen accused Amit @ Babloo and also had not disclosed the name of Ashish @ Ashu, however, one another person was present with accused Rohit Dhingra and deceased Mahesh Nagar who had been subsequently identified by PW .5 as Ashish @ Ashu , thereby it is Page 105/116 106 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
established that prosecution could not prove the last scene evidence of accused Amit with deceased Mahesh Nagar.
b). Prosecution brought on record the call details of
mobile phones of accused persons thereby it is
established that six calls were made from the mobile phone of accused Amit @ Babloo to the mobile phone of Rohit Dhingra between 8.42.01 p.m till 10.21.03 p.m thereby it is established that had accused Amit been present between the aforesaid period with Rohit Dhingra in such circumstances no question arises to made call from his mobile phone to the mobile phone of Rohit Dhingra. It is also the admitted case that accused Amit was residing in the area of Sonia Vihar-II I.e near the place of incident and all the calls which were made by accused Amit within the area of Sonia Vihar, Delhi, thereby it is established that factum of making call during the aforesaid period raises doubt about the presence of accused Amit at the place of incident.
c) Prosecution relied on the statement of PW .6 Baghlu Pd.,and PW .7 Ram Chander with regard to the Page 106/116 107 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
presence of co-accused Amit with other co-accused persons but they both denied this fact during their examination and also not supported this fact even during cross-examination of Ld. Addl. PP for the State. Thereby it is established that prosecution failed to prove this fact against accused Amit @ Babloo.
d). The finger print expert in his report clearly stated that chance print marked Q4 and Q5 were not identical with finger prints of the person mentioned in para 1C (i.e with Rohit Dhingra, Ashish @ Ashu and Amit.) thereby it is established that either accused Amit @ Babloo was not present at the spot or he had not consumed the beer at the spot.
27. In view of the aforesaid established facts discussed in para 26 of this judgment there is possibility of two views with regard to his involvement to commit the crime which would go in favour of the accused. In such circumstances the accused Amit @ Babloo has become entitled to give him the benefit of doubt therefore, I am of the considered view that prosecution failed to prove its case beyond reasonable doubt against accused Amit @ Page 107/116 108 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. Babloo.
28.In view of the aforesaid established facts as discussed in para 24 a to m of this judgment I am of the considered view that prosecution succeeded in proving its case beyond reasonable doubt against accused Rohit Dhingra and Ashish @ Ashu for the offence u/sec. 302/34 IPC for which they were charged, However, no sufficient ingredients are brought on record to prove its case beyond reasonable doubt against co-accused Amit @ Babloo. The evidence against accused Amit @ Babloo is his disclosure statement and the disclosure statements of other co-accused which alone are not sufficient to convict the accused Amit @ Babloo for the ofence as alleged against him.
29.In view of the aforesaid discussion and taking into consideration the evidence adduced by the prosecution and the observations given by their Lordships in the above mentioned decided case, I am of the considered view that prosecution failed to prove its case beyond reasonable doubt against accused Amit @ Babloo, therefore, he has become entitled to be given him the benefit of doubt. Accordingly benefit of doubt is given to him, therefor, accused Amit Page 108/116 109 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. @ Babloo s/o Sh. Nathu Singh is acquitted for the offence u/sec. 302/34 IPC as alleged against him, therefore, he is directed to furnish a personal bond to the tune of Rs.10,000/- with one surety of the like amount till the expiry of six months or till the date of his first appearance before the appellant court which ever is earlier as per provision of Section 437 Cr.P.C.
30.However, prosecution succeeded in proving its case beyond reasonable doubt against accused Rohit Dhingra s/o Sh. Anil Kumar Dhingra and Ashish @ Ashu s/o late Sh. Lakhvir Singh for the offence u/s 302/34 IPC. Accordingly I hold both of them guilty for the said offence. Let they both be heard on the quantum of sentence on 03/6/2011.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court Delhi Dt. 1st Day of June 2011 Page 109/116 110 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. IN THE COURT OF SH. B.S. CHUMBAK: ADDL. SESSIONS JUDGE-3 (North East): KARKARDOOMA : DELHI SC No. 32/08 FIR NO. 14/08 PS KHAJURI KHAS U/Sec. 302/34 IPC STATE VS ROHIT DHINGRA ETC.
Present: Sh. S.K. Dass Ld. Addl. PP for state.
Sh. Pardeep Chaudhary Advocate for both accused/convicts. Convict Rohit Dhingra, Ashish @ Ashu are in JC.
ORDER ON SENTENCE
1. I have heard the arguments on behalf of Ld. Addl. P.P for State as well as ld. Counsel on behalf of the convicts Rohit Dhingra and Ashish @ Ashu on the quantum of sentence.
2. Ld. counsel on behalf of convicts pleaded that the convicts Rohit Dhingra and Ashis @ Ashu are young person of about 24 and 22 years old respectively. They both are neither the previous convicts nor any criminal case is pending against them.
Page 110/116 111 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
3. Convict Rohit Dhingra is a student of B.A IInd year two elder brothers and parents in his family. He has been two times released on parole by the court of this court and during that period he has not committed any sort of misconduct or unlawful activity.
4. Ld. counsel further submitted that convict Ashish @ Ashu is 8th class pass having one elder brother who has been residing separately and there is no other male member in his family to look after his widow mother. Convict is the only sole bread earner in his family and requested for taking lenient view in awarding the sentence to the convicts Rohit Dhingra and Ashish @ Ashu.
5. It is further pleaded that the convicts have suffered a lot while appearing before this court and also remained in jail for about three years and four months and requested for granting the benefit u/s 428 of Cr.P.C as well as to sentence them for the term of imprisonment for which they had already undergone.
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6. Ld. counsel on behalf of accused/convicts Rohit Dhingra and Ashish @ Ashu further pleaded that they both were the young persons at the time of commission of offence and none of the convicts are habitual offender and have suffered a lot while appearing before the court from the jail. During the period they appeared before the court their conduct remained unblemished and no proof of any previous involvement of any of the convicts in any criminal case is brought on record during the trial before this court and requested for releasing both the convicts on probation instead of sentencing them as provided u/sec. 3 & 4 of Probation of Offenders Act r/w Sec. 360 Cr.P.C
7. Ld. counsel on behalf of convicts further pleaded that the present case is based solely on the disclosure statement of accused and the electronic evidence brought on record during the trial of this case, thereby, it is established that the present case is totally based on the circumstantial evidence and does not fall within category of rarest of rare cases and placed his reliance on a decided cases reported as "ASHOK KUMAR PANDEY VS STATE OF DELHI 2002 (1) JCC 526" AND BABU S/O RAVEENDRAN VS BABU S/O BAHULEYAN AND ANOTHERS 2003(3) JCC 1290" Page 112/116 113
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
8. On the contrary Ld. Addl. PP for state argued that the deceased was well known to both the convicts. The deceased was also working with accused Rohit Dhingra in the same office. The circumstances in which the deceased was killed, I.e by using a 5kg., stone having irregular surfaces goes to show that the murder is committed is an extremely brutal and dastardly manner and is well covered within the category of rarest of rare case. Also placed his reliance on a decided on a decided case cited as 'Bachan Singh Vs. State of Punjab (1980) 2 SCC 684 and Machhi Singh and Ors. Vs. State of Punjab (1983) 3 SCC 470' wherein the following illustrations of murders which fall within the category of rarest of rare cases and deserves death penalty were given which are as follows:
i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
ii) When the murder is committed for a motive which evinces total depravity and meanness; e.g murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer Page 113/116 114 FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC.
is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.
iii) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride-burning "or dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again to marry another woman on account of infatuation.
iv) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
v) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a- vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
9. In Bachan Singh's case the Constitution bench observed that the death penalty contemplated by Section 302 IPC is not unreasonable and is not against the public interest and it does not violate Articles 19 or 21 of the IPC. Page 114/116 115
FIR NO:14/08; PS KHAJURI KHAS; U/S 302/34 IPC ; STATE VS. ROHIT DHINGRA ETC. In the same decision it was also observed that judicial discretion cannot be fettered by attempting to make an exhaustive enumeration by one way or the other. Hence, it follows that five principles referred to in Aloke Nath Dutta's case justifying award of death penalty can only be treated as illustrative and not exhaustive.
10.In Holiram Bordoloi Vs. State of Assam 2005 (3) SCC 793 it is held as under:
"that pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. A murder diabolically conceived and cruelty executed would justify the imposition of the death penalty on the murderer."
11.In view of the contentions of Ld. Counsel for both the parties I also have gone through the observations given by their lordships in the aforesaid decided cases and analyzed the established circumstances in this case wherein it transpires that admittedly both the convicts were of young age at the time of commission of offence. In view of the aforesaid circumstances I am of the considered view that this case does not fall within the category of rarest of rare cases.
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12.In view of the aforesaid discussion I hereby sentenced the convict namely Rohit Dhingra and Ashish @ Ashu for a term of RI for life and to pay a fine of Rs. 5000/- each in default of payment of fine they both shall further undergo SI for six months for the offence punishable u/sec. 302/34 IPC. Fine not paid.
13.Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convicts free of cost.
File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 3rd Day of June 2011 Page 116/116