Delhi District Court
State vs . : Poonam & Ors. on 2 December, 2022
IN THE COURT OF DR.JAGMINDER SINGH:
ADDITIONAL SESSIONS JUDGE-03 - (SOUTH-WEST)
DWARKA COURTS: NEW DELHI
State Vs. : Poonam & Ors.
S.C. No. : 440919/2016
FIR No : 178/2012
U/s : 302/397/394/411/419/420/471/412/120-B IPC
P.S. : Chhawla
JUDGEMENT
1. CNR No. of the Case : DLSW01-000148-2012 2. Date of commission of offence : 12.08.2012-13.08.2012 3. Date of institution of the case : 09.11.2012
4. Date of committal to Sessions Court: 22.11.2012
5. Name of the complainant : Sh. Jagdish Chander
6. Name of accused persons, parentage : 1) Smt. Poonam & address W/o Sh. Manoj, R/o H. No. 16A, Block-A, Roshan Vihar, behind Rao Man Singh School,Najafgarh, New Delhi,
2) Susheel Kumar S/o Sh. Ramesh Kumar, R/o RZP-
3/190, New Roshan Vihar, Najafgarh, New Delhi,
3) Deepak S/o Sh. Krishan, R/o Village Nahri, State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.1 of 52 PS Kundli, District Sonipat, Haryana &
4) Neeraj S/oSh. Dharambir, R/o Village Nahri, PS Kundli, District Sonipat, Haryana.
7. Offence complained off : u/s 302/397/394/411/ 412/ 419/420/471/34/120-B IPC
8. Plea of the accused : Pleaded not guilty
9. Date on which order was reserved : 30.11.2022
10. Final order : Accused Poonam, Neeraj, Susheel and Deepak are acquitted for the offences punishable u/s 120B/ 302/ 397/394/34 IPC, Accused Deepak is acquitted for the offences punishable u/s 411/420 IPC, Accused Neeraj is acquitted for the offence punishable u/s 412 IPC and Accused Deepak is convicted for the offence punishable u/s 419/471 IPC.
11. Date of final order : 02.12.2022 Brief statement of reasons for decision :
1. In the present case charge against the accused State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.2 of 52 persons are that in the intervening night of 12-13.08.2012, within the area of Delhi, all accused persons entered into an agreement to do an illegal act i.e. conspiracy to commit murder of Smt. Krishna W/o Sh. Jagdish Chander (Complainant) and also to commit robbery of money and jewelery articles from iron box (trunk) of deceased Smt. Krishna and in furtherance of aforesaid conspiracy on aforesaid date at about 02:00 AM, accused persons namely Sh. Susheel Kumar, Sh. Deepak & Sh. Neeraj committed murder of Smt. Krishna by using a Chhura (big knife) and also committed robbery of jewelery articles and money from iron box of complainant and also caused multiple sharp injuries on head and back of complainant by using aforesaid Chhura (big knife) in H. No. 16A, Block-A, Roshan Vihar, Behind Rao Man Singh Public School, Najafgarh, New Delhi. On 18.08.2012, accused Deepak got recovered one jewelery purse containing two small silver colour bangles (Kade), two small silver colour Ghungru Wale Bangles (Kade), One silver colour ring, one pair silver colour anklet (Panjeb), One silver colour pendent bearing colourful flower, one silver colour chain into three pieces, six silver colour Ghungru and other silver colour Ghungru belonging to deceased Smt. Krishna were effected from his possession from his house and on 19.07.2012, accused Deepak used a forged document and obtained Vodafone Mobile Connection bearing mobile no. 9953142463 fraudulently by fixing his photograph on colour photocopy of DL of Naveen and he pretended to be Naveen and represented himself as Naveen for obtaining aforesaid mobile connection at Bharat Telecom, 324, Near Hanuman Mandir, Bawana Road, Narela, Delhi. On State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.3 of 52 22.06.2013, accused Neeraj got recovered two pair silver anklet and one pendent with multi coloured Flowerish design, belonging to deceased from his possession from straw store room, village Nahri, District Sonipat, Haryana. The case was registered at the complaint of complainant Sh. Jagdish Chander.
After completion of investigation, charge-sheet was filed against all the four accused persons namely Poonam, Susheel Kumar, Deepak & Neeraj for the offences punishable u/s 302/ 397/ 394/ 411/ 412/ 419/ 420/ 471/ 34/ 120-B IPC before the Court of Ld. M.M.
2. Accused persons were summoned. Copies of charge- sheet were supplied to accused persons before the court of Ld. MM. After compliance of section 209 Cr.P.C., the case was committed to the Court of Sessions. After hearing arguments on the point of charge and on the basis of prima-facie evidence, charges were framed against the all accused persons for the offences punishable under Sections 120-B IPC/302 r.w. Section 120-B IPC/397/394/34 IPC and charge framed against accused Deepak for the offences punishable under Sections 411/419/420/471 IPC and charge framed against accused Neeraj for the offences punishable under Sections 412 IPC to which they pleaded not guilty and claimed trial.
3. In order to substantiate the charge, prosecution has examined 37 witnesses.
4. PW1 HC Yashpal stated that on the intervening night of 12-13.08.2012, he was posted at PS Chhawla and was assigned the duties of Duty Officer by SHO concerned. At about 05:15 AM, he have received Rukka and he made his endorsement State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.4 of 52 on Rukka Ex.PW11/A and on basis of same, he registered FIR of present case. Copy of same is Ex.PW1/B. Thereafter, original FIR and original Rukka was sent to Insp. Balbir through Ct. Ramesh for further investigation.
5. PW2 Sh. Manoj Kumar stated that he was working as bus conductor on school bus of Venketshwara School, Dwarka. On the intervening night of 12-13.08.2012, he was present with his wife and children in his room and were sleeping. His father and mother were sleeping in another room of aforesaid house. At about 01:00 AM - 02:00 AM in night, he heard his father's voice shouting "Bachao-Bachao". He came out of his room and saw that blood was oozing out from the head of his father. His father told him that 3-4 persons had hit him and had ran away upstairs. Thereafter, he along with his father went to the roof, where they found that those persons ran away after going down from the ladder placed with the said roof. He came down from the stairs and saw that their articles were scattered. The neck of his mother was found slit. He dialed 100 number. PCR van came at the spot and took his father to hospital. After treatment in hospital, his father came back to home. After treatment in hospital, his father came back at home. Dead body of his mother was taken to Jafarpur Hospital by police. He identified dead body of his mother vide statement Ex.PW2/A and after postmortem dead body of his mother was handed over to them for cremation. 4-5 years prior to incident, he had purchased one mobile phone bearing no. 9210413560 through Pawan and Sumit from their paternal uncle Vijay Sharma for Rs.500/-. Said mobile phone used to be kept at his home and mostly his wife State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.5 of 52 Poonam used the same. Besides the above, he had purchased another mobile phone having Idea No. 9990626410 sometime before the incident. On the night of incident, his wife was having mobile phone 9210413560 in his possession. He was in deep sleep on the night of incident before he woke up hearing the aforesaid sound of his father.
6. Thereafter, PW2 was cross-examined by Ld. Addl. PP in which he admitted that on 13.08.2022, his statement Ex.PW2/PX1 was recorded by police. He further stated that his father had informed him that three boys after slitting the neck of his mother and lotting jewellery and cash from box, ran away towards roof.
7. PW3 Sh. Jagdish Chander stated that he was working as peon in Rao Mohar Singh Memorial Public School at Paprawat Road, Najafgarh, New Delhi. On 12.08.2012 in night at about 10:00 PM, he along with his wife Smt. Krishna had gone to sleep at the roof of his aforesaid residence of Najafgarh. At about 12:30 Midnight, they came down from the roof to sleep in the room situated at ground floor of his aforesaid residence of Najafgarh. He was sleeping on Sofa and his wife was sleeping on a cot in the said room. At about 01:45 AM - 02:00 AM, he heard the noise of screaming of his wife Krishna and he saw that two boys were giving beatings to her and when he asked them in this regard, then one of them caused injuries on his head and also on his back by using a hockey stick and his associate had also caused stab injuries on his head and also on the right and left side on his back by using a knife type object and their third one associate was breaking a trunk at Varandah of his house, where State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.6 of 52 the said trunk was kept locked at that time. The third one associate had also caused injuries on his head and back by using a hockey stick. He fell down and he tried to save himself and then he was dragged out from beneath of sofa. Thereafter, accused persons fled away from spot. He went on roof and made a hue and cry "Bachao-Bachao" and his son Manoj Kumar woke up who was sleeping with his wife and children in other room situated at ground floor and his room was also found bolted from outside and said room was opened by him and then, his son Manoj Kumar came out and he along with him went to the roof. Where, they had seen a ladder installed against the front wall of their house near main gate in the street. They came down from roof and they saw that his wife was lying dead on said cot. Her neck was found slitted from left side. His son Manoj had opened the main gate of their house and he along with his son came out from his house where neighbours were gathered in front of their house. His son Manoj made a call to the police on 100 number by his mobile in this regard. Police came at the spot and he was removed to the RTRM Hospital for his treatment and after his treatment, he was discharged from hospital from the doctor concerned and he was taken back at his residence by police. Dead body of his wife Krishna was shifted to hospital by police after his arrival from hospital. Aforesaid Bamboo ladder of length about 15 feets was taken into police possession vide seizure memo Ex.PW3/A. Hockey stick with yellow coloured handle was taken into police possession vide seizure memo Ex.PW3/B. Broken blue colour iron box was locked in the Kundi in the middle of box was seized vide memo Ex.PW3/C. One State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.7 of 52 sharp edged iron object 5-7 inches like knife having handle bent at one of the edge was also recovered from spot same was seized vide memo Ex.PW3/D. One Hawai Chappal grey colour of right foot & black colour helmet were taken into police possession vide seizure memo Ex.PW3/E & Ex.PW3/F. A multi coloured cloth and one small jewelry purse on which Arihant Jewelers was printed and same were seized vide seizure memo Ex.PW3/G. Blood samples were lifted from spot vide seizure memo Ex.PW3/H. He also identified hockey stick and iron trunk and 24 clothes and some documents as Ex.P1 & Ex.P2 (Colly). He also identified helmet, Hawai Chappal and Chhura as Ex.P3, Ex.P4 & Ex.P5 respectively. He also identified Dupatta and jewellery purse as Ex.P6 (CollY). Police also seized blood stained Dari and thin Gadda vide seizure memo Ex.PW3/I. He identified said Dari and thin Gadda as Ex.P7 (Colly). TIP proceedings is Ex.PW3/J in which he identified the recovered articles which were robbed by accused persons. He identified silver colour jewelery articles as Ex.P8 (Colly). TIP proceedings is Ex.PW3/K in which he identified two pairs of silver coloured anklets and one pendent necklace. He identify two pairs of silver coloured anklets and one pendent necklace as Ex.P9 (Colly). Police recorded his statement Ex.PW3/L. Police officials prepared site plan Ex.PW3/M. He identified the accused Susheel, Deepak and Neeraj during his evidence. Accused Neeraj was pressing the neck of his wife and accused Susheel stabbed her wife with knife. On his asking, third accused Deepak hit him with hockey on his back. Accused Susheel gave him various stab injuries with aforesaid knife on his head and on his backside.
State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.8 of 52
8. Thereafter, PW3 was cross-examined by Ld. Addl. PP in which he admitted that police had prepared sketch of aforesaid Chhura (big Knife) Ex.PW3/N. He further admitted that police had seized one Triangle shaped iron object vide memo Ex.PW3/P and also made sketch Ex.PW3/O of it. He further admitted that police seized the jewelery purse vide memo Ex.PW3/Q.
9. PW4 is Dr. Parvinder Singh who stated that on 13.08.2012, he had conducted postmortem examination on the body of deceased Smt. Krishna vide PM Report No. 171/12 which is Ex.PW4/A. Body was brought by Insp. Balbir Singh and was identified by Praveen Kumar and Manoj Kumar. At request letter dated 22.09.2012 of Insp. Balbir Singh Ex.PW4/B, he had given his subsequent opinion report dated 27.09.2012 Ex.PW4/C. He had also prepared sketch of weapon Ex.PW4/D.
10. PW5 Dr. Rakesh Kumar stated that on 13.08.2012, he was posted as CMO and on that date, a patient namely Jagdish was brought to casualty by HC Ingel Singh with alleged history of physical assault by sharp object. He examined the patient vide MLC No. 3476/12, same is Ex.PW5/A. He also prepared MLC of Krishna which is Ex.PW5/B.
11. PW6 Ct. Sombir stated that on 13.08.2012 at about 06:00 AM, DO handed over him 3 copies of computer generated FIR No. 178/2012 to deliver the same to house of Ld. MM concerned, Addl. CP (S-W) and Joint CP. Accordingly, he went to the house of above mentioned officers and delivered copy of FIR No. 178/2012.
12. PW7 Sh. Praveen Kumar stated that in the State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.9 of 52 intervening night of 12-13.08.2012 at about 02:30 AM, he received a telephonic call from his brother Manoj Kumar who is residing two streets away from his house. His brother informed him that three assailants had entered in his (his brother) house and after causing injuries to his mother and father had ran away. He reached there and saw that his mother had expired and his father got injuries on head & back and blood was oozing out from injuries. He noticed that there was slitting injury on neck of his mother. His brother Manoj called the police. Police reached there and had taken his father to J.P. Kalan Hospital for treatment and returned back about 04:00 A.M. Crime team reached at the spot. Dead body of his mother was shifted to RTRM Hospital. He along with his brother accompanied the dead body of his mother to hospital. He identified dead body of his mother vide memo Ex.PW7/A. After postmortem, dead body of his mother was handed over to them. On 13.08.2012, police had recorded his statement. On 15.08.2012 at about 04:00-05:00 PM, some police officials came to his house and inquired from him about relations of his mother and his sister-in-law Poonam. He informed to the police officials that his mother Krishna and accused Poonam used to quarrel with each other often. On 16.08.2012 at about 04:00 PM, he joined the investigation at request of police officials including Insp. Balbir Singh and accused Susheel. Accused Susheel led the police party to a vacant plot situated two streets away from his house pointed towards bushes and shrubs in said plot. From there, accused Susheel got recovered one Chhura (knife). Police officials prepared sketch of said Chhura Ex.PW7/B. Police seized the said Chhura vide memo Ex.PW7/C. State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.10 of 52 He identified the said Chhura during his evidence as Ex.PW7/P1.
13. PW8 HC Ashok Kumar stated that on 13.08.2021, he was posted as photographer, crime team, south-west district, Delhi. On that day, he along with I/C Crime Team ASI Pradeep Kumar reached at the spot and took 20 photographs which are Ex.PW8/A1 to Ex.PW8/A20. He also placed negatives of same on record which are Ex.PW8/B1 to Ex.PW8/B20.
14. PW9 Sh. Vijay Sharma stated that he had purchased a second hand mobile phone no. 9210413560 in year 2006. After sometime, he gave said mobile phone to his nephew Sumit. After sometime, Sumit alongwith his friend Pawan came to him and asked him to sell aforesaid mobile phone to Pawan who wanted same for his servant Manoj. He sold aforesaid mobile phone to Pawan for a sum of Rs.500/-. Pawan gave said mobile phone to his servant Manoj. On 02.11.2012, police came to his house and took him to PS Chhawla, where they had shown him the ID of his abovesaid mobile phone, whereupon, he told the police officials all aforesaid facts.
15. Thereafter, PW9 was cross-examined by Ld. Addl. PP in which he admitted that he had sold the aforesaid mobile phone to Manoj and he came to know later from Manoj that he (Manoj) had given said mobile to his wife for use.
16. PW10 Ct. Arun Kumar stated that in the intervening night of 12-13.08.2012, he along with SI Sandeep Kumar were on emergency duty. At about 02:30 AM, on receipt of DD No.5- A dated 13.08.2012 of PS Chhawla Ex.PW10/A, they reached at the place of incident and found 10-12 public persons were gathered and on inquiry from them, they came to know that State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.11 of 52 injured Jagdish had already been removed to RTRM Hospital by PCR Staff. They found one Bamboo ladder was attached with the roof of a house from its outside and a dead body of Smt. Krishna was found lying on a cot in a room and her neck was found slitted from left side. Articles were found scattered inside the room. An iron box/trunk was found lying at the door of said room in locked condition and some articles of said iron box were found scattered. SI Sandeep went to RTRM Hospital. Thereafter, Insp. Balbir came at the spot along with other police officials. Crime team was also reached at the spot. SI Sandeep also reached at the spot along with injured Jagdish Chander. Statement of injured was recorded by IO at the spot. Rukka was prepared and handed over the same to Ct. Ramesh for registration of FIR. Place of incident inspected by crime team and some photographs were taken by government photographer. Dead body of Smt. Krishna Devi was removed to RTRM Hospital by him, where, she was declared brought dead by doctor concerned vide MLC No. 3478/12 and dead body got preserved in mortuary of said hospital. Thereafter, postmortem of dead body was conducted and dead body was handed over to her son Praveen for cremation.
17. PW11 Sh. Rajeev Ranjan stated that he have been working as Nodal Officer in Tata Tele Services Ltd. since September, 2011. He stated that on receipt of notice u/s 91 Cr.P.C. Mark-A, he provide CDR, CAF, Certificate u/s 65-B of Indian Evidence Act, Cell ID Chart with location pertaining to mobile numbers 9210263536 & 9210413560 for the period 01.07.2012 to 16.08.2012 were provided to the IO. As per record, State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.12 of 52 mobile number 9210263536 was issued in the name of Susheel Kumar and subscriber had submitted copy of his voter ID for issuance of said mobile number. He proved original CAF of mobile no. 9210263536 as Ex.PW11/A and photocopy of voter ID of Susheel as Mark-B. He further stated that as per record, mobile number 9210413560 was issued in the name of Vijay Sharma and subscriber had submitted copy of his voter ID for issuance of said mobile number. He proved original CAF of mobile no. 9210413560 as Ex.PW11/B and photocopy of voter ID of Susheel as Mark-C. He had also provided computer generated CDR of Mobile No. 9210263536 for 01.07.2012 to 16.08.2012 to IO which is Ex.PW11/C.
18. PW12 Sh. Pawan Singh stated that he have been working as Nodal Officer in Idea Cellular Limited since 2005. He stated that on 16.10.2012, he had furnished original certificate u/s 65-B of Indian Evidence Act Ex.PW12/A in respect of computer generated CDR of mobile phone no. 9990626410 for 03.07.2012 to 15.08.2012 which is Ex.PW12/B. As per record, mobile number 9990626410 was issued in the name of Rang Rao and subscriber had submitted copy of his Election I-Card for issuance of said mobile number. He proved original CAF of mobile no. 9990626410 as Ex.PW12/C and photocopy of Election I-Card of Rang Rao as Mark-A.
19. PW13 Sh. Naveen @ Sandu stated that he used to ply his own Gramin Sewa vehicle on the route of Narela to Khera Kala. About 8 years ago, he used to reside at his Maternal Aunt (Bhua) i.e. C-82A, Rama Park, Uttam Nagar and was studying in class-8th. He got issued his DL on the basis of his State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.13 of 52 aforesaid address of his Bhua. Before 6-7 months of year 2012, when he used to ply his vehicle, accused Deepak also started another Gramin Sewa on same route. On 04.11.2012, he was called at IO at PS Chhawla, where he was shown a coloured photocopy of DL which was issued in my name. However, photograph of accused Deepak was affixed on same. Accused Deepak had also got issued a mobile no. 9953142463 on furnishing copy of said fake DL. He identified the coloured copy of said DL as Ex.PW13/A.
20. PW14 Ct. Pawan stated that on 16.08.2012, he was posted as government photographer as Mobile Crime Team, Dwarka. On that day, he along with other police officials including I/C ASI Pradeep, Ct. Suresh (Proficient), Ct. Anil & Ct. Parvesh (Driver) of mobile crime team reached at PS and joined the investigation. They along with IO and other police officials with an arrested accused Susheel led them to a vacant plot no. RZ-87, Roshan Vihar, Chhawla, where accused had got recovered a big knife from bushes by disclosing that said knife was used by him during the commission of offence. During inspection of said site, he had taken 8 photographs which are Ex.PW14/A-1 to Ex.PW14/A-8.
21. PW15 Ct. Anil Kumar stated that on 05.10.2012 on the instructions of IO and MHC(M) concerned, he had received 11 sealed parcels pertaining to this case along with three sample seals and FSL Form and got deposited the same in FSL Rohini for examination vide RC No. 134/21/12 Ex.PW15/A and handed over the receipt Mark-A of same to MHC(M) alongwith copy of RC.
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22. PW16 W/Ct. Indu Dahiya stated that on 16.08.2012, he along with SI Sandeep Kumar and Ct. Vinod had joined the investigation along with IO/Insp. Balbir and reached at H. No. 16-A, Roshan Vihar, behind Rao Mann Singh School, Najafgarh, where accused Poonam met them and she was interrogated about the incident in question and IO got recorded her disclosure statement Ex.PW16/A. Accused Poonam was arrested and personally searched in this case vide memos Ex.PW16/B & Ex.PW16/C respectively.
23. PW17 Sh. Hardeep Singh, Asst. Draftsman stated that on 12.09.2012, he was working as draftsman in Mapping Section, PS Dwarka South. On that day, he reached at PS Chhawla on received a telephonic call from Insp. Balbir Singh. From where, they reached at spot i.e. H. No. 16-A, Roshan Vihar, Najafgarh and he take rough notes of spot and they returned. On 25.09.2012, he prepared the sealed site plan Ex.PW17/A on the basis of said rough notes and handed over the same to IO.
24. PW18 HC Bharat Lal stated that on 13.08.2012, he was posted as MHC(M) in PS Chhawla and on that day, Insp. Balbir had deposited 9 sealed Pullandas sealed with the seal of BS in Malkhana and also deposited on wooden Ladder and one iron box in unsealed condition. On same day, Insp. Balbir also deposited 3 sealed Pullandas sealed with the seal of RTRM Hospital regarding which he had made an entry in register no.19 at Sr. No. 741, photocopy of same is Ex.PW18/A. On 16.08.2012, Insp. Balbir also deposited 5 sealed Pullandas along with items recovers during personal search of accused Deepak & Susheel and he had made entry in register no. 19 in this regard State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.15 of 52 which is Ex.PW18/B. On 17.08.2012, Insp. Balbir had deposited 1 motorcycle no. DL-9-SW-9705 and he had made entry in register no. 19 in this regard which is Ex.PW18/C. Thereafter, on 18.08.2012, Insp. Balbir again deposited two sealed Pullandas sealed with the seal of BS and he had made entry in register no. 19 in this regard which is Ex.PW18/D. On 22.09.2012, one sealed Pullanda sealed with the seal of BS was sent to Forensic, RTRM Hospital by Insp. Balbir vide RC No.127/21/12 and he had made entry in register no. 19 in this regard which is Ex.PW18/E and he had taken receiving of said exhibits from IO on Ex.PW18/F. On 05.10.2012, he had sent 13 sealed parcels to FSL, Rohini as per the directions of IO through Ct. Anil vide RC No. 134/21/12, photocopy of which is Ex.PW15/A. After depositing same, Ct.Anil handed over me acknowledgement of same Ex.PW18/G. On 17.10.2012, he handed over one sealed Pullanda to Insp. Balbir vide RC no.137/21/12, photocopy of which is Ex.PW18/H.
25. PW19 Sh. Dev Kumar, Nodal Officer, Vodafone stated that as per their record, mobile number 9953142463 was issued in the name of Naveen Kumar and subscriber had submitted copy of his Driving License for issuance of said mobile number. He proved original CAF of mobile no. 9953142463 as Ex.PW19/A and photocopy of DL of Naveen Kumar as Ex.PW19/B. He also proved computer generated CDR and Cell ID Chart with location of said mobile phone number for 01.08.2012 to 16.08.2012 are Ex.PW19/C & Ex.PW19/D respectively. He also proved certificate u/s 65-B of Indian Evidence Act as PW19/E. State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.16 of 52
26. PW20 Sh. Pawan Kumar, LDC, Janakpuri Transport Authority, New Delhi stated that as per their record DL No. DL- 0420080111586 was issued to Naveen Kumar on 26.09.2008 and valid till 25.09.2028 which was a private license. Naveen Kumar also applied for commercial license which was issued on 30.08.2010 for three years. Computerized record in this regard is Ex.PW20/B. Naveen Kumar got renewed his commercial license on 29.09.2016 which was valid till 28.09.2019. Computerized record of renewal of commercial license by Naveen Kumar on various occasions are Ex.PW20/C, Ex.PW20/D & Ex.PW20/E respectively.
27. PW21 ASI Kulbhushan stated that on 13.08.2012, he was posted as Finger Print Expert in Mobile Crime Team. On that day, on receiving call, he went to H. No. 16A, Roshan Vihar, Najafgarh. Photographer HC Ashok & ASI Pradeep I/C Mobile Crime Team accompanied him. He inspected the scene of crime. He lifted one chance print from hockey stick and he prepared his report Ex.PW21/A and sent the chance print to Finger Print Bureau after preparing the file.
28. PW22 HC Ramesh Chand stated that on the intervening night of 13-13.08.2012, he was posted as Constable at PS Chhawla. DO gave him copy of DD No.5A at02:30 AM. He gave copy of said DD to SI Sandeep. He accompanied Insp. Balbir Singh and night staff of ERV Gypsy to the spot, where Ct. Ankur met them who told that SI Sandeep had taken injured to hospital. In first room of the spot, dead body of one lady was lying on a cot. SI Sandeep came back with injured and handed over a sealed parcel of clothes to Insp. Balbir. SI Sandeep State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.17 of 52 recorded statement of Jagdish. Insp. Balbir prepared Rukka and handed over to him for registration of FIR. After registration of FIR, he came back at spot and handed over the same to Insp. Balbir. Insp. Balbir prepared site plan and 12-13 seizure memos. Insp. Balbir had prepared parcel of hockey stick. There was a triangle shaped iron strip and there was a strip typed Chhura. There was a iron box. From the roof, a small jewellery purse was found. Separate parcels of these articles were made and sealed with the seal of BS. Sketch of iron strip and Chhura were prepared. Grey coloured slipper of right foot, a purse of jewelery and cloth of Chunni type were also seized. A black colour helmet having white strip was also seized. After recording statement of witnesses and doing all writing work, they came back to PS and IO deposited the parcels in Malkhana. On 17.08.2012, he accompanied Insp. Balbir, SI Sandeep and accused Susheel, Deepak & Poonam to Dwarka Court. IO moved application for TIP of accused Susheel & Deepak but both accused refused to participate in TIP. IO obtained 2 days PC remand of accused Deepak. Accused Susheel & Poonam were sent to JC. He wrongly identified accused Deepak as accused Susheel during evidence before the Court. Accused Deepak got recovered black coloured splendor motorcycle no. DL-9-SW-9705 and IO seized the same. On 18.08.2012, he accompanied IO Insp. Balbir, SI Sandeep, HC Sarabjeet and accused Deepak to village Nahari near Sonipat, Haryana, where accused Deepak got recovered one T-shirt, one Pant & 5-6 silver articles which were sealed and seized by IO. On 13.08.2012, Insp. Balbir had sent body of deceased to RTRM Hospital through one constable. Dari and State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.18 of 52 mattress was also seized and sealed by IO. He identified the shirt of Jagdish, cotton swab, hockey stick, iron strip 'Chhura', triangle shaped sharp edged iron object and empty cloth purse as Ex.PW22/P1, Ex.PW22/P2, Ex.P1, Ex.P5, Ex. PW22/P3 & Ex.PW22/P4.
29. PW23 Ct. Vinod Kumar stated that on 16.08.2012, he was posted at PS Chhawla. On that day, he had accompanied IO Insp. Balbir, SI Sandeep, W/Ct. Indu in investigation of present case to the spot. He disclosed the identical version as of PW16 W/Ct. Indu. He further stated that accused Susheel was arrested and personally searched vide memos Ex.PW23/A & Ex.PW23/B respectively. Accused Susheel gave his disclosure statement Ex.PW23/C. One mobile phone make Huawei was recovered from pocket of accused Susheel which was seized vide memo Ex.PW23/D. Accused Susheel got recovered one Chhura and sketch of said Chhura was prepared by IO. Crime team consisting of three member came at spot and take photographs of recovered Chhura. Accused Susheel had pointed out the spot vide memo Ex.PW23/E. Accused Deepak was arrested and personally searched vide memos Ex.PW23/F & Ex.PW23/G respectively. One mobile phone make Nokia was recovered from accused Deepak which was seized vide memo Ex.PW23/H. Accused Deepak gave his disclosure statement Ex.PW23/J. Accused Deepak pointed out spot vide memo Ex.PW23/K. Accused Susheel got recovered his clothes viz. Pajama, Kurta and a handkerchief from Almirah in a room which were seized vide memo Ex.PW23/L. They returned at PS and deposited seized parcels in Malkhana. He identified the 3 mobile phones handed State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.19 of 52 over by accused Poonam as Ex.P-10 (Colly). He identified recovered mobile phone make Huawei & make Nokia as Ex.P- 23/1 & Ex.P-23/2 respectively. He also identified recovered iron knife with wooden handle, a coloured photocopy of DL, Kurta, Pajama and handkerchief as Ex.PW-7/P1, Ex.PW13/A & Ex.P23/3 (Colly) respectively.
30. Thereafter, Ld. Addl. PP asked some leading questions from PW23 in which he admitted that the house number of accused Poonam was 16A and Praveen son of complainant was present at the time of recovery of Chhura. He further admitted that after arrest, accused Deepak and Susheel were kept in muffled faces. He further stated that due to lapse of time, he had forgotten aforesaid facts.
31. PW24 Sh. Bagga Ram stated that he had obtained a SIM and do not remember the name of service provider company whose SIM, he had purchased. He had given the said SIM to Surjeet (brother-in-law of his brother-in-law Ratan Lal) in July, 2012. Surjeet & Ratan Lal had gone to Haridwar to take Kawad in July, 2012 and there mobile phone containing aforesaid SIM was lost by Surjeet. They did not lodge report and brought Kawad to Fatehabad. He went to PS Tohana to lodge report but police officials asked him that report is to be lodged where the mobile with SIM was lost. He came back to him and did not lodge any report for lost of mobile phone with SIM.
32. Thereafter, PW24 was cross-examined by Ld. Addl. PP in which he admitted copy of CAF of Mobile Phone No. 9729387985 Mark P-24/1 bears his photo and signatures. He further admitted that on 06.07.2012, Surjeet had gone to State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.20 of 52 Haridwar to take Kawad and he, Surjeet and Ratan Lal had never gone to village Nahari and no any their relative are residing in village Nahari.
33. PW25 Ct. Neeraj stated that on 13.08.2012 at about 02:30 AM, he received telephonic information from lady caller that some persons have come inside their home and have committed murder of a lady and one lady is injured and there is quarrel. He recorded this information in CPCR. Printout of same is Ex.PW25/A. After recording the same, it was handed over to console operator.
34. PW26 Sh. Chandra Shekhar has partly examined-in- chief and not fully examined, therefore, his examination is not being read into evidence.
35. PW27 Ct. Sher Singh stated that on 21.06.2013, he joined investigation with IO Insp. Balbir, SI Sandeep and Ct. Sukhbir to Dwarka Court. Accused Neeraj refused to participate in TIP. IO obtained one day PC Remand of accused Neeraj and recorded disclosure statement of accused Neeraj Ex.PW27/A. Accused led police party and identified place of incident vide memo Ex.PW27/B. On 22.06.2013, accused Neeraj got recovered stolen 2 pairs of Pajeb and a pendent and IO seized the same vide memo Ex.PW27/C. He identified 2 pairs of silver Pajeb and a silver pendent as Ex.P-9.
36. PW28 SI Sandeep Kumar deposed the identical version as of PW10 Ct. Arun Kumar, PW3 Sh. Jagdish Chander, PW16 W/Ct. Indu Dahiya, PW23 Ct. Vinod Kumar, PW7 Sh.Praveen Kumar, PW22 HC Ramesh Chand and PW27 Ct. Sher Singh. He further deposed that IO had seized the sealed State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.21 of 52 parcel and sample seal which he brought from hospital vide memo Ex.PW28/A. IO also seized one sample seal and two sealed parcels sealed with the seal of RTRM containing blood gauze of deceased and Maxi, Chunni and bed sheet vide seizure memo Ex.PW28/B. He further stated that during Sarsari search of accused Deepak, colour copy of one DL was found in which photo of Deepak was there but name was of Naveen Kumar, same was seized vide memo Ex.PW28/C. Accused Deepak got recovered one Splendor Plus Motorcycle no. DL-9-SW-9705 and IO had seized the same vide memo Ex.PW28/D. Accused Deepak was got medically examined and lodged in lock-up. On 18.08.2012, accused Deepak got recovered two small Kadas having Ghunghroos, one ring, one pair of pajeb, one pendent, one broken chain in 3 pieces, 6 Ghunghroos and some broken Ghunghroos and same was seized by IO vide memo Ex.PW28/E. Shirt and Pent of accused Deepak were also seized vide memo Ex.PW28/F. IO recorded supplementary disclosure statement of accused Deepak vide memo Ex.PW28/G. He further stated that disclosure statement of accused Neeraj was got recorded by IO vide memo Ex.PW27/A. Accused Neeraj was arrested and personally searched vide memos Ex.PW28/H & Ex.PW28/I respectively. He identified the recovered Dupatta and Jewellery as Ex.P6 (Colly). He identified the recovered Hawai Chappal as Ex.P4. He identified the recovered Helmet as Ex.P3. He identified the recovered trunk and aforesaid articles as Ex.P2 (Colly). He identified the recovered Dari and Thin Mattress as Ex.P7 (Colly). He identified the recovered Mobile Phones as Ex.P10 (Colly). He identified the recovered Silver Jewelery State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.22 of 52 Articles as Ex.P8 (Colly) and Ex.P9 (Colly). He identified the recovered Pink Shirt as Ex.PW28/P1 and recovered Gray Colour Pant as Ex.PW28/P2.
37. PW29 Ms. Sunita Gupta, Senior Scientific Officer (Biology), FSL, Rohini, Delhi stated that in their office 11 sealed parcels with letter dated 05.10.2012 of SHO, PS Chhawla were received. She had examined the articles contained in those parcels and had prepared her detailed results of analysis vide her reports dated 13.02.2013 which is Ex.PW29/A.
38. PW30 Mr. Israr Babu, Nodal Officer, Vodafone Mobile Services proved CAF of mobile phone number 9813142471 stating that same was in the name of Sumitra and copy of CAF is Ex.PW30/A. He also identified the handwriting and signature of the then Nodal Officer Sh. Anuj Bhatia on letter dated 17.07.2013 Ex.PW30/B through which CDR of Mobile phone no. 9813142471 for 01.08.2012 to 25.08.2012 Ex.PW30/C and certificate u/s 65-B of Indian Evidence Act Ex.PW30/D are handed over to IO.
39. PW31 Ct. Karnal Yadav stated that in the intervening night of 12-13.08.2012, he was posted in CPCR, PHQ from 08:00 PM to 08:00 AM. At around 02:20 A.M., he received call from mobile no. 9990626410 and the caller gave the address of Roshan Vihar, RZ-16 and said that "Yahan Do Ladke Ek Ladies Ka Chaku Se Gala Kaat Gaye Hain". He recorded the information in CPCR Form whose print out is Ex.PW31/A. He sent the said information to concerned NET in the command room in PHQ at 4th Floor.
40. PW32 Sh. Shishir Malhotra, Nodal Officer, Airtel State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.23 of 52 Ltd. proved photocopy of CAF of Mobile No. 8802488193 in the name of Manoj Kumar as Mark32/1, CDR of aforesaid mobile number from 01.08.2012 to 16.08.2012 as Ex.PW32/A, certificate u/s 65-B of Indian Evidence Act as Ex.PW32/B and Cell ID Chart is Ex.PW32/C.
41. PW33 Sh. Gaurav Gupta, MM-04, Saket Courts stated that on 06.07.2013, an application was marked to him for identification of case property moved by IO and it was kept for 15.07.2013. On 15.07.2013, he had conducted the TIP of case property viz., 2 pairs of silver coloured anklets and one pendant necklace; details of which proceedings are already previously Ex.PW3/K and his certificate at the foot of proceedings is Ex.PW33/A. He allowed copy of proceedings to IO on his application.
42. PW34 Sh. Ravinder Singh, MM-04, Dwarka Courts proved TIP of accused Neeraj as Ex.PW34/A in which accused Neeraj had refused to join the TIP Proceedings.
43. PW35 Insp. Balbir Singh deposed the identical version as of PW10 Ct. Arun Kumar, PW3 Sh. Jagdish Chander, PW16 W/Ct. Indu Dahiya, PW23 Ct. Vinod Kumar, PW7 Sh.Praveen Kumar, PW22 HC Ramesh Chand and PW27 Ct. Sher Singh. He further stated that he prepared Tehrir Ex.PW35/A and got registered the FIR. On 04.09.2012, postmortem report of deceased Smt. Krishna Ex.PW4/A was received by him. On 05.11.2012, he applied for issuance of process u/s 82 Cr.P.C. against accused Neeraj & Lalit and obtained the same from Court of Ld. M.M. and same were executed on 15.11.2012. On 21.01.2013, both accused persons namely Neeraj & Lalit were State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.24 of 52 got declared PO. On 12.02.2013, first supplementary charge- sheet against accused Neeraj & Lalit was filed in Court. During investigation, accused Lalit was declared JCL and his PIR was filed before the Juvenile Justice Board. He identified the ladder as Ex.PW35/PX1.
44. PW36 Sh. S.S. Badwal, Assistant Director (Physics), CFSL, Guwahati, Assam stated that on 07.02.2013, he was working in FSL, Rohini, Delhi as Senior Scientific Officer (Physics). On that day, he received two sealed envelopes. One envelope i.e. Parcel No. F-1 was containing one broken metalic piece and second envelope i.e. parcel No. H-1 was containing one metalic knife (Chhura). He examined both exhibits and submitted his detailed examination report dated 14.02.2013 which is now Ex.PW36/A. After examination, parcels containing the exhibits were sealed with the seal of FSL SSB Delhi.
45. Thereafter, PE was closed vide separate statement of Ld. Addl. PP for State and matter was fixed for recording statement of accused persons u/s 313 Cr.P.C. Statement of all four accused persons u/s 313 Cr.P.C. were recorded in which they denied all the allegations levelled against them and accused Susheel opted for DE and remaining three accused persons not opted for DE.
46. Accused Susheel had examined two witness in his defence.
47. DW1 is Sh. Pawan Kumar who stated that on 14.08.2012, he had gone to IGI Airport to do his job and came back at 10:30 AM on 15.08.2012. As soon as, he changed his clothes, washed his hands and feet, he received phone call from State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.25 of 52 PS Chhawla and was told that quarrel of his brother had taken place and he had come to PS. At 11 or 11:15 AM, he reached at PS Chhawla. He saw 15-20 persons there and he came to know that murder of someone had taken place. Jagdish and his relatives were there. Police officials asked him about Sushil. He said, he was not knowing about Sushil as he had come back from duty. He was threatened by police officials. After 2 or 2.5 hours, Sushil came. Accused Sushil is his real younger brother. He was in other room and accused Sushil was in other room. 2 or 2.5 hours later to arrival of accused Sushil, Deepak had come. Accused Sushil and Deepak were arrested. Police officials were telling Jagdish that accused Sushil had committed the murder. Jagdish was then saying that Sushil had not committed the murder. He was left on the next day by police on next day by police on 16.08.2012 after getting his signatures at 3-4 places. He have nothing else to say.
48. DW2 is HC Sunil who stated that he is working as MHC(R) in PS Chhawla since March, 2019 and who have brought the summoned registers A & B of Daily Diaries of PS Chhawla. Register A is of period from 27.07.2012 to 03.09.2012. Register B is of period from 03.08.2012 to 21.08.2012. As per Daily Diary Register A, DD No. 28A pertains to departure of Insp. Balbir at 07:00 PM on 15.08.2012 with other police officials for investigation of this case.
49. Thereafter, DE on behalf of accused Susheel was closed vide separate statement of Ld. Counsel for accused Susheel and matter was fixed for final arguments.
50. Thereafter vide order dated 10.02.2020, PW26 was recalled for his further examination at oral request of Ld. Addl.
State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.26 of 52 PP for State and no objection on behalf of Ld. Defence Counsels. But due to non-availability of PW26 Sh. Chandra Shekhar, Nodal Officer, Bharti Airtel Ltd., PW37 Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Ltd. was examined on behalf of prosecution.
51. PW37 Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Limited proved the certified copy of CAF of mobile no. 9729387985 of Bagga as PW37/A. Subscriber had given his ration card for issuance of aforesaid mobile number, photocopy of same is Mark PW37/1. He further proved certified CDR of aforesaid mobile number from 04.07.2012 to 31.07.2012 and 01.08.2012 to 25.08.2012 are Ex.PW37/B & Ex.PW37/C respectively. He also proved certificates u/s 65-B of Indian Evidence Act regarding aforesaid CDRs are Ex.PW37/D & Ex.PW37/E respectively.
52. Thereafter, PE was closed vide order dated 04.03.2020 and additional statement of all four accused persons were recorded u/s 313 Cr.P.C. regarding PW37 in which they denied allegations levelled against them and not opted for further DE and matter was again fixed for final arguments.
53. Final arguments heard. Ld. Addl. P.P. for the State argued that case of the prosecution is proved beyond reasonable doubt against all the accused persons. Accused persons in furtherance of their common intention as well as their criminal conspiracy committed murder of deceased and also committed robbery thereon and at that time, they also used deadly weapon and caused grievous hurt to the injured Jagdish Chander. It is further submitted that robbed property was also recovered from accused Neeraj and Deepak and accused Deepak had further used State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.27 of 52 a forged document to obtained Vodafone Mobile Connection by way of affixing his photo on the DL of one Naveen and therefore, he represented himself as Naveen fraudulently and accordingly cheated the Vodafone Company as well as Govt. Authority. Ld. Addl. PP further submitted that all accused persons are liable for conviction for the offences charged against them.
54. On the other hand Ld. Counsels for accused persons stated that accused persons are falsely implicated in this case. They have not committed any wrongful act. Accused Poonam is daughter-in-law of deceased and was residing at her In-laws house with her husband and in-laws parents at the time of commission of offence. She has been falsely implicated. It is further submitted that all the other accused persons are forcibly and deliberately picked up by police and were taken to PS and this case has been planted upon them. The alleged recovery is also planted one. No any independent or public witness has been produced by IO regarding commission of the alleged offence by any of accused persons or regarding the alleged recovery from any of the accused persons. No any incriminating evidence produced by prosecution against the accused persons. The statements given by witnesses are suffering from material contradictions which cannot be relied upon. Prosecution failed to prove its case against the accused persons and therefore, they are liable to be acquitted in this case.
55. I have considered the submissions made by both the parties and have perused the record. Major charge against all accused persons are that they all in furtherance of criminal conspiracy as well as common intention committed murder of State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.28 of 52 Smt. Krishna and committed robbery of jewellery articles and money from the iron box from the house of deceased and complainant and while doing so, they caused multiple sharp injuries on the head and back of complainant Sh. Jagdish Chander i.e. husband of deceased Smt. Krishna, by using sharp edged knife like weapon i.e. "Chhura".
56. To prove the incident of murder and robbery, the material witnesses examined by prosecution are complainant/injured Sh. Jagdish Chander i.e. PW3 and son of complainant Sh. Manoj Kumar i.e. PW2. As per FIR Ex.PW1/B, the FIR was registered at the statement of complainant Sh.Jagdish Chander, wherein, he stated that the incident was occurred in the intervening night of 12-13.08.2012 at about 02:00 AM.
57. As per complaint Ex.PW3/L, complainant stated that when he woke up at about 02:00 AM on hearing cries of his wife, he saw that two boys were inflicting injury to his wife with some Chhura type weapon and when he asked them why they were inflicting injury to her, then they both boys came towards him and inflicted injuries on his head with the said Chhura type weapon. On the other hand in his statement before the Court as PW3, he stated that when he saw, the two boys were giving beatings to his wife and upon asking by him, one of the said boy caused injury on his head and also on his back by using a hockey stick and his associate had caused stab injury on his head and on his back. Therefore, as per statement before the police initially two boys inflicted injury on the head of complainant with Chhura like weapon but as per his statement before the Court State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.29 of 52 initially he was inflicted injury on his head and back by a hockey stick by one boy and by Chhura like weapon on his back by another boy.
58. As per Ex.PW3/L, PW3/complainant had further narrated the incident that after giving him injuries by two boys, a third boy who was breaking their locks outside the room and who was having a hockey stick in his hand also came inside and started beating him with hockey stick and thereafter, he(Complainant) fell down from the Sofa and tried to hide himself under the Sofa and at that time, they inflicted injuries upon his back/waste with Chhuranuma weapon. On the other hand as per his statement before the Court, PW3 narrated the further incident that the third one associate who was breaking a box at Varandah also caused injuries on his head and back by using a hockey stick and thereafter, he fell down. He had not stated that after he fell down, anyone had inflicted stab injury on his back/waste.
59. As per statement of PW3 before the Court, one out of the two boys who were initially giving beating to his wife, was having a hockey stick and third one who was breaking the box was also having a hockey stick. Therefore, as per statement of complainant as PW3, out of the three, two assailants were having hockey stick. Whereas, as per his statement before the police Ex.PW3/L, only one assailant who was breaking the box was having a hockey stick and none from the two boys who were initially beating his wife were having a hockey stick.
60. As per Ex. PW3/L, complainant further narrated the incident when he fell down from Sofa and was further given State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.30 of 52 beatings, then, he again hide himself under the sofa to save himself and thereafter, all the three assailants after breaking the box lid from one corner, ran away with jewellery and cash from the box and climbed upon the roof through stairs leaving their hockey sticks in the room.
61. On the other hand, as per statement before the Court, PW3 further narrated the incident that when, he fell down and tried to save himself, then, he was dragged out from beneath the Sofa and thereafter, they fled away from the spot. Before the Court, PW3 had not stated that accused persons fled away by taking out jewelery and cash from the box or that they left the hockey stick in the room itself. In the statement before the police Ex.PW3/L, he had not stated that at any point of time, he was dragged out from beneath the Sofa by accused persons which fact he had stated before the Court.
62. However, when he was cross-examined by Ld. Addl. PP, he admitted the fact of taking away of the jewelery and cash by accused persons and leaving the hockey stick at the spot, only in response to direct leading questions/suggestions on this aspects. Therefore, in the examination in chief, PW3/ complainant had given his statement with certain improvements and contradictions sufficient to make his statement less trustworthy.
63. The witness was cross-examined at length and during cross-examination, his statement was further suffered from various other contradictions. PW3 admitted in his cross- examination that at the time of incident, light of his room was off. He had further stated, in contradiction to his examination-in-
State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.31 of 52 chief, as well as statement before the police that at the time of incident, he had seen that four assailants were beating his wife but he could not see their faces as there was not sufficient light and thereafter, three of the assailants started beating him. In this way, in cross-examination, he had stated the number of assailants as four. He had further stated regarding identification of accused persons that during beating, one of the assailant switched-on the light of his mobile phone and then, he had seen the faces of three assailants who were beating him. However, no such fact of switching-on the light of mobile phone by any of the accused has been stated by the complainant either in his statement before the police or in his examination-in-chief. On this point, a specific question was asked by Ld. Defence Counsel giving suggestion that he had not seen even the numbers of persons as he had earlier stated that there were four assailants beating his wife and he could not see their faces due to insufficient light. In answer to this question/suggestion, PW3 first stated that three persons were beating his wife and again stated that two persons were beating his wife and thereafter again stated that when he wake up, he found two persons were pressing neck of his wife.
64. No such fact of pressing neck of his wife by two persons has been stated by him before the police in his statement Ex.PW3/L. PW4 Dr. Parvinder Singh who conducted postmortem on the body of deceased stated in his cross- examination that there was no sign of pressing of neck of deceased. During further cross-examination, PW3 stated that he had stated to the police in his statement that the accused persons themselves switched-on the torch of their mobile phones when State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.32 of 52 he got opportunity to see the accused persons. However, the witness was confronted with his statement before the police Ex.PW3/L where no such fact is mentioned.
65. PW-3/complainant stated in his cross examination that he had stated to the police about the description and heights of the assailants. However, when he was confronted with his statement to the police Ex.PW3/L, no such facts are mentioned in the said statement. PW-3/complainant had stated in his cross examination that he had not informed to his son as to how many assailants were there. On the contrary, son of the complainant when examined as PW2, stated before the Court that his father told him that 3-4 persons had hit him and had run away upstairs. During cross examination, PW-2 gave another version stating that he had stated in his statement Ex.PW2/PX1 given to the police that his father had informed him that assailants were three boys. Therefore, complainant as well as his son are failed to give exactly proper figure of number of assailants without contradiction. The identification of the assailants is only based upon by the prosecution by way of alleged torch light of the mobile phone allegedly switched on by one of the assailant during the incident. However, as discussed above, in the statement Ex.PW3/L, it is nowhere mentioned by the complainant that any of the assailants had ever switched-on the light of his mobile. Even in examination-in-chief, no such fact is stated by the complainant but this fact has only stated by him in his cross examination. He had also made an improvement in his cross examination that due to some light coming from window, he had seen four assailants were beating his wife but he could not State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.33 of 52 see their faces due to insufficient light. During cross examination by learned defence counsel, PW3 voluntarily stated that the accused persons themselves switched on the torch light of their mobile phones. It reflects that in this sentence, the witness is stating that all or more than one accused persons had switched on torch of their mobile phones.
66. IO/PW-35 stated in his cross examination that regarding the mobile phone seized from the accused, he did not check whether there was any provision of torch in the mobile. These type of contradictions and improvements are sufficient to hold that the fact of switching on the torch light by the accused during the incident is a false fact concocted by the complainant/prosecution.
67. In view of the above said discussion, Court finds that as only witness could not see the faces of the assailants, there is no use of TIPs despite the fact that the accused persons denied to undergo TIP. Possibility of disclosure of their identification by the police to the witness cannot be ruled out. PW3 stated in his cross examination that he cannot tell if the police officials have shown the accused persons to him at any point of time because of passing of two years of the incident. PW7 Sh. Praveen Kumar who is also other son of complainant admitted in his cross- examination that he and his father were called by police to PS in connection with present case and at that time, accused Susheel and Deepak were present in PS and at that time his father was sitting adjacent to the accused Susheel in PS.
68. PW3 further stated that first time he visited the PS after reading the newspaper that the assailants have been State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.34 of 52 apprehended by the police. On the other hand, PW35/IO stated in his cross examination that neither photographs of accused persons nor their story was published in the newspaper. IO also admitted that no CCTV camera was installed nearby place of incident and in the street. He further stated that he did not match the accused persons with the description of the assailants. Regarding identification, PW3 stated in his cross examination that perhaps IO Balbir Singh had informed about the names and identities of the three assailants outside the Video Conferencing Room, when he had identified them and informed about the same to Balbir Singh. PW3/complainant nowhere stated that any lady was also there with the assailants at the time of commission of offence of murder and robbery. He admitted during cross examination that when the incident had taken place, accused Poonam was not present there and that she was in another room with her husband Manoj.
69. PW2/son of the complainant admittedly was not present at the spot at the time of commission of the offence as he was informed later on by his father/PW3 regarding the incident when the assailants already fled away. PW2 further stated in his cross examination that he had not seen any accused while committing the offence. During cross examination on behalf of accused Poonam, Neeraj and Deepak, PW2 stated that he had never seen the accused prior to the date of his deposition before the Court. On the other hand, when he was cross examined by ld. counsel for accused Susheel, he admitted that on 16.08.2012 police brought the accused Deepak and Susheel to their house and at that time, his father/PW3 was also present at the house.
State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.35 of 52 Therefore, it is clear that the only eye witness has failed to establish the fact that he had identified the accused Susheel, Deepak and Neeraj due to his contradictory version regarding the identification. Accused Poonam is the daughter-in-law of the complainant and admittedly, at the time of incident, she was not actively participating in the offence as she was sleeping in another room with the son of the complainant. Therefore, prosecution failed to establish the fact that the complainant identified the accused persons while committing the crime of murder or robbery.
70. Other charge against all accused persons namely Susheel, Deepak and Neeraj are that they committed robbery of jewellery articles and money from iron box (Trunk of complainant) and deceased and while committing the said robbery, they caused multiple injuries to the complainant and murder the deceased i.e. wife of complainant. As discussed above, complainant who is only eye witness of the incident has failed to identify any of the accused while committing robbery. Admittedly, neither there was any CCTV Footage showing any of the accused persons committing the offence nor there is any other scientific evidence establishing the fact that accused persons had committed the aforesaid robbery.
71. It is stated by IO in his examination-in-chief that during inspection of spot after incident along with other articles belonging to complainant, one Hawai Sleeper of Right Foot and one Black Helmet allegedly belonging to accused persons were seized. As per the prosecution version, the said Hawai Chappal was not seized from spot but same was found lying in the street State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.36 of 52 of said house. The alleged black helmet was also not seized from spot but same was found lying in the next street of said house. One hockey stick allegedly of the accused persons was also seized from spot. However, there is no any scientific evidence including finger print report etc. has been placed on record by prosecution who establish the fact that aforesaid recovered articles belong to any of the accused. As per FSL Report Ex.PW29/A (Colly) also there is nothing to suggest that the Ex.D1 i.e. hockey stick and other articles which were examined by laboratory were having any scientific connection with any of the accused. In cross-examination, IO admitted that no fingerprint were found on the said helmet.
72. Regarding call detail records, it is submitted by IO during cross-examination that before giving notice u/s 91 Cr.P.C. to service providers of mobile phone number of accused Poonam, Susheel and Deepak, he had obtained call detail records of said mobile numbers but same was not placed on record. However, he placed on record the call details which were later received. According to him initially he had obtained call details records on 15.08.2012 but same are not part of court record nor are part of case dairy. Therefore, there is no such evidence. Moreover, there is no any mobile number or SIM Card found by prosecution in the name of accused Poonam. Merely on the basis of that the other accused persons had mobile conversation with each other cannot be made a sole ground for conviction in absence of any other corroborative evidence. Therefore, there is no sufficient evidence to prove the fact that any of the accused persons had committed the offence of robbery.
State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.37 of 52
73. Other charge against accused Deepak is that he had committed the offence of impersonation, cheating and used forged documents. As per prosecution story, accused Deepak impersonated himself to be Naveen before the concerned official of Vodafone Mobile Company and for that purpose, he used photocopy of DL of Naveen by affixing his photo upon the same. During evidence IO/PW35 stated that when accused Deepak was apprehended, then, one colour copy of DL issued in the name of Naveen Kumar S/o Sh. Bhagat Ram on which the photograph of accused Deepak was found affixed was recovered from his pocket which was seized vide memo Ex.PW28/C. As per the recovery memo, the said DL is bearing no. DL-0420080111586. During evidence, PW20 appeared from Janakpuri Transport Authority who brought the relevant record of DL and according to him as per record, the aforesaid DL was issued to one Sh.Naveen Kumar S/o Sh. Bhagat Singh on 26.09.2008 valid till 25.09.2028. During cross-examination, he had stated that as per record there was no any record regarding theft or missing of aforesaid license and the license holder namely Naveen Kumar never applied for issuance of duplicate license. He had placed on record copy of the relevant record i.e. Ex.PW20/B and Ex.PW20/C and Ex.PW20/D and Ex.PW20/E showing that aforesaid DL was issued to Naveen Kumar having his photograph on the same.
74. On the other hand, as per the IO and seizure memo Ex.PW28/C copy of license of the aforesaid number which was recovered from accused Deepak was having photograph and signature of Naveen. However, other particulars of the DL i.e. its State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.38 of 52 numbers, father name, address, date of birth are same. Therefore, it is clear that colour copy of DL which was recovered from accused Deepak was a forged document. The said forged copy of colour DL is Ex.PW13/A.
75. As per the prosecution at the time of arrest of accused Deepak, one mobile phone with a Vodafone SIM Card was recovered from his possession and the mobile number of said SIM was found as 9953142463. PW19 Nodal Officer from Vodafone appeared with relevant record of aforesaid mobile phone number and stated that the same was issued in the name of Naveen Kumar S/o Sh. Bhagat Singh on the basis of furnishing of copy of DL by its subscriber regarding his identity proof. He had placed on record copy of CAF Ex.PW19/A and copy of DL Ex.PW19/B. Perusal of document Ex.PW19/B reveals that same is Mobile Connection Application regarding the aforesaid Vodafone Mobile Number containing photo of accused Deepak and having name and signature of Naveen. Ex.PW19/B is the photocopy of the abovesaid forged DL having name and signature of Naveen but photo of accused Deepak. Therefore, as already stated that the aforesaid SIM Card of Vodafone was recovered from accused Deepak. So, it is clear that he had used a forged document to procure the aforesaid SIM Card from Vodafone company by personating himself as Naveen Kumar. Therefore, he had committed the offence punishable u/s 471 IPC r.w. Section 465 IPC.
76. The accused Deepak had also cheated the Vodafone Company by pretending to be Naveen Kumar to get the aforesaid mobile connection despite the fact that actually he was not State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.39 of 52 Naveen Kumar. Accordingly, he had committed the offence define u/s 416 IPC i.e. Cheating by personation and which is punishable u/s 419 IPC. During evidence prosecution has failed to place on record the proof fulfilling the necessary ingredients of the offence punishable u/s 420 IPC against accused Deepak as there is no evidence that anybody has been induced by accused Deepak to deliver any property etc. to him.
77. In addition to aforesaid charges, the accused Deepak has also been charged for the offence punishable u/s 411 IPC and accused Neeraj has been charged for the offence punishable u/s 412 IPC. Definition of Section 412 IPC clarified that it prescribe punishment for receiving the stolen property in the commission of a dacoity. In this case there is no offence of dacoity. There is no such ingredients are mentioned in body of the charge. Therefore, it appears that charge u/s 412 IPC has been mentioned inadvertently or because of typographical error instead of Section 411 IPC. Moreover, Section 412 IPC is aggravated form of Section 411 IPC. Therefore, charge for the purpose of present case against accused Neeraj is also hereby read as u/s 411 IPC.
78. As per the prosecution case, the robbed articles i.e. one jewellery purse containing two small silver colour bangles (Kade), two small silver colour Ghunghru Wale Bangles (Kade), one silver colour Ring, one pair silver colour anklets (Pajeb), one silver colour pendent bearing colourful flower, one silver colour chain into three pieces, 6 silver colour Ghunghru and other silver colour Ghunghru, belonging to the deceased Smt. Krishna were recovered from the possession of accused Deepak. Regarding accused Neeraj, it is alleged that the robbed articles of the State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.40 of 52 deceased Smt. Krishna i.e. two pair silver anklets and one pendent with multi coloured flowerish design were recovered from the possession of accused Neeraj.
79. First of all, it has to be establish by prosecution that the aforesaid allegedly recovered articles were robbed/stolen articles. In statement Ex.PW3/L, the complainant/eye witness had not stated any description of the articles which were robbed during incident. He had stated in vague manner that when he came back to his home from the hospital, he found that some documents are missing from his box and the assailants have robbed his cash jewellery and documents. He had also not stated particular amount of cash, nature of documents and nature of identification of the jewellery. He had even not prescribed metal of the jewellery articles. Complainant when appeared before the Court as PW3, he had not even stated in his examination-in-chief that the accused persons had taken away jewellery or money by breaking the corner of trunk. These facts were only stated by PW3 in response to a direct leading question suggesting this fact when he was cross-examined by Ld. Addl. PP for State. Such type of statement liable to be considered as doubtful in absence of any other corroborative evidence. No any list of articles placed on record by prosecution produced to the police by the complainant, if any. PW2 who also present in the house where the alleged robbery was occurred and he came just after the incident at the spot, stated in his examination-in-chief only that he saw that their articles were scattered. In cross-examination, he had also not stated about any description of the robbed articles. PW3 in his cross-examination stated that he is not having any State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.41 of 52 receipt of said jewellery but stated in vague manner that the same was given to his wife at the time of her marriage by her parental side in year 1970. It may be accepted that anybody cannot be expected to keep a receipt of the marital jewellery of year 1970, but if he was having that jewellery since so long time, he must have seen it repeatedly and he must have knowledge of its description. But even in cross-examination, the witness could not tell the description of the robbed jewellery/articles.
80. PW3 admitted in his cross-examination that no recovery of stolen articles was effected by police in his presence. PW7 who is also son of complainant reached at the spot after the incident in that night but he had also not stated about any description of the stolen articles. As per recovery memo of the said jewellery from accused Neeraj i.e. Ex.PW27/C, and the recovery memo of jewellery from accused Deepak i.e. Ex.PW28/E, there is no name or signature of any public witness. As per Ex.PW27/C, the seal used upon Pullanda of recovered jewellery, was handed over to SI Sandeep after its use. As per the recovery memo of jewellery from accused Deepak Ex.PW28/E, there is no mention that seal of BS of IO was handed over to anybody after its use till the depositing of case property in Malkhana.
81. PW28 SI Sandeep Kumar who is witness on the recovery memo Ex.PW27/C from accused Neeraj had not stated the fact of handing over the seal after use to him. Therefore, possibility of tempering with the seal or showing of the article to the complainant after recovery and before depositing in the Malkhana cannot be ruled out. During cross-examination, it is State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.42 of 52 admitted by PW28 that at the time of recovery, public persons were present but no one was joined into investigation. No any official from local police or any respectable member of the village i.e. Sarpanch etc. was joined into investigation. IO/PW35 in his cross-examination admitted that he had neither placed on record any departure entry for going outstation nor he had made any arrival entry at PS for Outstation. IO further admitted in his cross-examination that he was not having with him any list and description of articles which were to be recovered. In these circumstances, the recovery effected from accused Deepak and Neeraj becomes doubtful and further it has not been established by the prosecution during evidence that how the alleged recovered articles were the stolen/robbed articles belonging to complainant or his deceased wife.
82. As far as weapon of offence is concerned, as per prosecution story, three weapons were recovered. One iron strip (Chhura) Ex.P5 which was seized vide memo Ex.PW3/D from the spot, one hockey stick Ex.P1 which was seized vide memo Ex.PW3/B from the spot and another iron strip (Chhura) Ex.PW7/P1 which was got recovered by accused Susheel from a vacant plot which was seized vide memo Ex.PW7/C. As per the prosecution case Ex.PW7/C was found having broken edge from front and its part i.e. broken edge was recovered from the spot in a triangular shape which was seized vide memo Ex.PW3/P which was produced before the Court Ex.PW22/P3.
83. There is no evidence placed on record by prosecution connecting the aforesaid Hockey Stick Ex.P1 or Chhura Ex.P5 with any of the accused persons. No any scientific State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.43 of 52 evidence showing finger prints of the accused persons or matching with accused with aforesaid weapons through any other mode has been placed on record.
84. Prosecution had tried to link the evidence as according to it one Chhura was broken during commission of said offence by accused persons and its broken part i.e. Ex.PW22/P3 remained at the spot and main part of said Chhura was hidden by the accused persons in a plot under the bushes and during investigation said Chhura Ex.PW7/P1 was got recovered by accused Susheel.
85. Four witnesses have been examined by prosecution regarding recovery of the Chhura from accused Sushil who are Ct. Vinod i.e. PW23, SI Sandeep Kumar i.e. PW28, IO/Insp. Balbeer Singh i.e. PW35 and one public witness i.e. Sh.Praveen Kumar i.e. PW7. As per recovery memo Ex.PW7/C, the Chhura was got recovered by accused Susheel in a vacant plot under bushes and wooden handle of this Chhura was found some burnt and its front portion was found broken. As per the seizure memo, after preparing its sketch, the Chhura was wrapped in a cloth and sealed with the seal of 'BS'. However, it is nowhere mentioned in the memo that to whom the seal was handed over after its use. It means the seal was not handed over to anybody by IO after its use despite presence of 3 other witnesses including a public witness. None of these witnesses had stated in their examination before the Court that whether seal after use was handed over by IO to anybody. Therefore, possibility cannot be ruled out of tempering with the seal after its seizure from spot and before its depositing with MHC(M).
State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.44 of 52
86. PW7/public witness stated in his examination-in- chief that on 16.08.2012, 3-4 police officials met him when he was returning to his house after buying some household articles from a nearby shop and at that time, accused was also with them in muffled face. However, when he was confronted with his statement u/s 161 Cr.P.C. Mark PW7/DX1, There was no such facts were mentioned but it was mentioned that at that time witness was standing in front of Rao Man Singh School, Paprawat Road, Najafgarh police officials met him. In cross- examination, PW7 further stated that after returning back from the plot, his statement was recorded by police at the house of Manoj i.e. complainant. On the other hand, PW23/Ct. Vinod Kumar stated in cross-examination that Praveen/PW7 did not accompany them to the house of complainant after recovery of said Chhura. PW7 again stated that he do not remember whether his statement was recorded or not.
87. PW23 stated that place of recovery i.e. vacant plot was half or one K.M. away from Paprawat Road, whereas, PW28 stated this distance as 150 meters and PW7 stated this distance as 200-300 meters. On the other hand, IO/PW35 stated this distance as 100 meters. IO/PW35 stated that from the place, where public witness Praveen met them, they went to the place of recovery on foot. On the other hand, PW28 SI Sandeep Kumar stated that public witness Praveen accompanied them in official vehicle. PW23/Ct. Vinod Kumar stated that at the time of recovery, other public persons were present there but none agreed to join the investigation. PW28 stated that at the time of recovery, no one else was present at the spot. It has been admitted by all recovery State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.45 of 52 witnesses that place of recovery was an open vacant plot and the said place was accessible to all. Therefore, the alleged recovery place was not of that type which was not easily accessible to any other person except accused.
88. PW7 stated in his cross-examination that he do not remember whether IO had prepared the site plan of the said plot, whereas, PW23 /Ct. Vinod Kumar stated that site plan of the said plot was prepared by the IO. But no such site plan has been placed on record by prosecution. Regarding description of plot, IO/PW35 stated that the plot was facing towards West and was in a street but PW7 stated that there was a road in front of said plot. PW35 also stated that there was boundary of height about 2 Ft. on said plot but there was no gate. PW23 stated that said plot was one side open and could not tell that what was there in front of said plot and towards which side the said plot was facing. No other witness than IO stated that there was any boundary of plot. All these contradictions in the statement of recovery witnesses further create doubt regarding the genuineness of the alleged recovery of the Chhura Ex.PW7/P1 from the aforesaid vacant plot. It is also held by Hon'ble Delhi High Court in Sikandar Kumar Vs. State 1998 (3)Crimes 69 that material contradictions in the statements of witnesses creates doubt in the prosecution version and it would be unsafe to place total reliance on their testimony.
89. The front triangular part Ex.PW22/P3, of the Chhura Ex.PW7/P1 was seized vide memo Ex.PW3/P from the spot on 13.08.2022. As per the seizure memo, this part was also sealed with the seal of 'BS' by the IO/Insp. Balbir Singh.
State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.46 of 52 However, in this memo also it is nowhere mentioned that whether after use i.e. seizure of said part, the seal was handed over to any other witness till the seized articles was deposited in the Malkhana.
90. As per Ex.PW4/B and Ex.PW4/C it was opined by the concerned expert/doctor that the injuries to the deceased could have been possible by the weapon of offence i.e. the aforesaid Chhura as well as its part. However, only an opinion that the injuries to the deceased could have been caused by the weapon Ex.PW7/P1 or by Ex.PW22/P3 cannot be considered as a conclusive proof that accused was involved in said offence unless it has been proved by the prosecution beyond reasonable doubt that the said Chhura/weapon was recovered from the possession or at the instance of accused or otherwise, the said weapon is linked with the accused on the basis of any other scientific evidence.
91. Forensic report Ex.P29/A (Colly) is also important on this aspect. The articles i.e. one metalic piece E-1 and one metalic triangular piece F-1 i.e. the weapon of offence were sent to FSL for examination. As per the result, the blood was detected on these articles but as per the Biological Division Report on further analysis regarding grouping of the blood, 'No reaction' was found of the said blood upon the aforesaid exhibits. Therefore, it was not confirmed that the blood on the sent exhibits was similar to that of the deceased. Regarding hockey stick (D-1) also there was a same report.
92. It is further case of prosecution that after arrest, accused Susheel led the police to his home, where, he produced State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.47 of 52 his clothes i.e. one Kurta, one Pajama and one handkerchief disclosing that the said clothes were worn by him during the commission of offence and same were seized vide memo Ex.PW23/L after sealing them with the seal of 'BS'. As per seizure memo, seal was not handed over to any witness after its use by IO. In the memo itself it is mentioned that after the incident, the said clothes have been washed. As per FSL Report Ex.PW29/A, the said clothes i.e. Kurta, Pajama and Hankey were sent to the FSL as 'I-1a', 'I-1b' and 'I-1c'. No blood was detected on 'I-1c'. As per Biological Division Report also there was no reaction regarding grouping of blood pertaining to 'I-1a' and 'I- 1b'. Therefore, prosecution failed to link the said clothes with the commission of said offence.
93. DW1 who is elder brother of accused Susheel further create doubt on the prosecution version as according to him on 15.08.2012, he was called by the police in police station, where, he was threatened and after sometime, Susheel came there and Deepak also came there and they were arrested there. During that time, according to him, Jagdish (complainant) was also in the police station who was saying that Susheel had not committed the murder. On the other hand as per arrest memo of accused Deepak, he was arrested on 16.08.2012 at Bus Stand Village Bud Sarai and as per arrest memo of accused Susheel Kumar Ex.PW23/A, he was arrested on 16.08.2012 in front of Dr. Kamal's Clinic near BDO Office, Najafgarh, New Delhi. On both these arrest memos, person informed about the arrestee is Pawan Kumar i.e. DW1 and both memos contained signatures of Pawan Kumar. Therefore, as per the prosecution, accused State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.48 of 52 Susheel and Deepak were arrested on different times and at different places but same person i.e. DW1 was informed about their arrest and shown as a signatory of arrest memos. In view of statement of DW1, his version also contain water that both the accused persons might have been arrested same time and same place as per his statement.
94. DW2 placed on record DD Entry No. 28A, wherein, it was mentioned that on 15.08.2012, IO/Insp. Balbir departure at 07:00 PM with other police officials for investigation of this case. During cross-examination, PW35/IO Insp. Balbir Singh stated that he along with other police officials departure police station at 12:00 Noon on 16.08.2012. However, no such DD Entry regarding departure of IO on 16.08.2012 is placed on record. During examination of DW2 also there is no clarification is sought on behalf of prosecution regarding departure entry, if any in the DD Register on 16.08.2012.
95. There is no reason to disbelieve totally the version of DW. It is also held by Hon'ble Supreme Court of India in Dudhnath Pandey Vs. State of Uttar Pradesh, 1981CAR 152(SC) that 'defence witnesses also entitled to equal treatment with those of prosecution and courts ought to overcome their traditional, instinctive disbelief in defence witnesses.'
96. All the other witnesses are formal procedural witnesses including the witnesses who has produced call details record of the mobile numbers i.e. nodal officers. PW11 Nodal Officer Tata Tele Services produce the record of mobile no. 9210263536 and according to him, same was issued in the name of Susheel Kumar and other mobile number 9210413560 was State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.49 of 52 issued in the name of Vijay Sharma. He had placed on record CDR of mobile no. 9210263536 for the period of 01.07.2012 to 16.08.2012 Ex.PW11/C.
97. As per CDR on 11-12.08.2012, there were so many calls between the mobile no. 9210263536 and 9210413560 and 9953142643. As per PW13, the mobile no. 9953142643 was got issued by accused Deepak and PW2 stated that the mobile phone no. 9210413560 was purchased by him from his uncle Vijay Sharma in whose name the said mobile number was issued as per PW11. However, PW2/Manoj only verbally stated that this mobile number was mostly used by his wife accused Poonam. During cross-examination, PW11 stated that he is not aware, if the data can be tempered with the system installed at Hyderabad as according to him system server of aforesaid mobile number 9210413560 is situated at Hyderabad. Further perusal of CDR Ex.PW11/C reveals that although there were so many calls between the abovesaid numbers on 11-12-13.08.2012, however, in other days i.e. on 09.08.2012, 08.08.2012, 05.08.2012 and even in July, 2012, there were so many calls in the numbers i.e. between 9210413560 and 9210263536. As per the prosecution version, accused Susheel is brother-in-law of accused Deepak and therefore, it cannot be ruled out that there was some conversation between both persons being relatives. No any transcript of CDR detail has been placed on record by the prosecution. Further as per principles of criminal justice, where there are two possible views regarding a fact, then, the view favourable to the accused should be accepted. Hence, there is no any evidence to held that the accused persons were involved in State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.50 of 52 any kind of criminal conspiracy.
98. In view of the aforesaid discussion, Court come at the conclusion that prosecution failed to prove its case beyond reasonable doubt for the offence punishable under Section 302/397/394/34/120-B IPC against accused Poonam, Susheel Kumar, Deepak and Neeraj, prosecution also failed to prove its case beyond reasonable doubt against accused Deepak and Neeraj for the offences punishable u/s 411/412 IPC and against accused Deepak for the offence punishable u/s 420 IPC. Benefit of doubt goes to accused persons as per principles of criminal justice. Accordingly, accused persons are Poonam, Susheel Kumar, Neeraj and Deepak are hereby acquitted for the offence punishable u/s 302/397/394/34/120-B IPC and accused Deepak and Neeraj are acquitted for the offences punishable u/s 411/412 IPC and accused Deepak is also acquitted for the offence punishable u/s 420 IPC in present case FIR No. 178/2012, PS:
Chhawla.
99. However, in view of the evidence placed on record, prosecution has successfully established its case against accused Deepak beyond reasonable doubt for the offence punishable under Sections 419/471 IPC. Therefore, accused Deepak S/o Sh.Krishan is convicted for the offence punishable under Sections 419/471 IPC in present case FIR No. 178/2012, PS:
Chhawla.
100. Previous bail bonds of the accused persons Poonam, Susheel Kumar and Neeraj stands cancelled and sureties stands discharged. Fresh bail bonds and surety bonds u/s 437-A Cr.P.C. are furnished on behalf of accused Poonam, Susheel Kumar and State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.51 of 52 Deepak and same are accepted till six months from the date of judgment.
101. Accused Neeraj is directed to furnish bail bonds and surety bonds u/s 437-A Cr.P.C. along with his latest photographs and residence proof on next date of hearing.
102. Accused Neeraj who is running in JC in this case be released from custody, if not required in any other case.
103. Copy of judgment be given dasti to convict.
104. Let convict be heard on the point of sentence.
Digitally signed
JAGMINDER by JAGMINDER
SINGH
SINGH
Announced in open court Date: 2022.12.02
16:19:16 +0530
on 02.12.2022
(DR. JAGMINDER SINGH)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi/02.12.2022
Note: This judgment contains Fifty Two (52) pages and having my signature on each page.
Digitally signed by JAGMINDER JAGMINDER SINGH SINGH Date: 2022.12.02 16:19:26 +0530 (DR. JAGMINDER SINGH) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi/02.12.2022 State vs. Poonam & Ors. PS: Chhawla FIR No.178/2012 Page No.52 of 52