State vs . Sikander @ Soni And Anr. Page No. 1/94 on 6 May, 2017

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Delhi District Court

State vs . Sikander @ Soni And Anr. Page No. 1/94 on 6 May, 2017

            IN THE COURT OF SHRI SANJIV JAIN, 
     ADDITIONAL SESSIONS JUDGE  SPECIAL. FAST TRACK 
      COURT : SOUTH EAST, SAKET COURTS: NEW DELHI.


SC No.   :   2349/2016
FIR No.  :  119/12
U/s.       :  302/376/201/34 IPC 
PS       :  Kalkaji, New Delhi. 

State (Govt. of NCT of Delhi)                               ................... Complainant

                          Versus

1). Sikander @ Soni 
S/o Shri Darshan Singh
R/o Village Batto, 
PS Noorpur Bedi 
District Ropar
Punjab 

2). Pardeep Singh 
S/o Sh. Bakshish Singh
Village Takhtgarh, 
Gadispur, PS Noorpur Bedi 
Distt. Ropar 
Punjab                                                   .............. Accused Persons

Date of Institution                                  :  07.09.2012
Judgment reserved for orders on                      :  27.04.2017
Date of pronouncement                                :  06.05.2017

                                     J U D G M E N T
1.               The quest in all criminal trials is to arrive at the truth and 
therefore,  the   role   of   the   Judge   is   to   cull   out   the   true   facts   from   the 

FIR No. : 119/12
PS : Kalkaji
State Vs. Sikander @ Soni and Anr.                                             Page No. 1/94
 evidence led before him and ensure that guilty does not go scotfree and 
innocent's life and liberty is not jeopardised.    
2.               This is a case of gang rape and gruesome murder of a young 
woman aged 2426 years who had come at the Defence Colony market to 
do shopping for her 1½ years old son. 
Facts :

3. The facts emanating from the record are these:

On 24.04.2012 at about 7.30 a.m., an information was received at the police post Nehru Place vide DD no. 10 that a dead body of a female is lying in a semi naked condition. SI Ranjan Kumar with Ct. Sukhvinder Singh rushed to the spot and found a dead body of a female aged 24 / 26 years near Metro flyover adjacent to Metro Pillar no. 127 in semi naked condition. She was wearing black / white colour top. Blood was oozing out from the mouth, nose and ears of the body. There were injury marks all around its face. A black colour jeans pant with its zip broken was lying at a distance of about 10 steps from the body. Broken hairs were also on her body. She was bare footed. Word Javed was tattooed on her left forearm and PG was written on her left middle finger. A tattoo of trishul and damroo were on her right forearm. She was wearing nose pin, two pairs of ear rings, black string with locket around her neck and a ring with stone on her right hand finger.

4. SI prepared rukka and got the case registered. Crime team and photographer were called on the spot. Inspector Ishwar Singh took over the investigation. The crime team lifted blood in gauze, blood stained earth, sample earth control, hairs struck on the body of the deceased and FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 2/94 black colour jeans pant from the spot. IO sent the dead body to the mortuary AIIMS through Ct. Sukhvinder. Inquiry was made from the local police stations but no clue was found. Ct. Sukhvinder after return from AIIMS, handed over the articles / jewellery of the deceased which she was wearing. The details of the dead body were uploaded on the zip net.

5. On the same day night, a missing report of a lady namely the prosecutrix (name withheld to protect her identity) having the same description was found lodged by Javed, resident of G9/114, Sector16, Rohini at the police station K.N. Katju Marg, Rohini vide DD no. 31A. At 1.40 a.m., the police party went to his house where they met a woman namely Sonam with a child aged 1½ years. On inquiry, she revealed that Javed has gone to his second house at 48, resettlement colony, Sector26, Rohini. Sonam took the police party to the second house where Javed with his first wife Hamida was present. He was shown the photograph of deceased. He identified the deceased to be of his wife.

6. Javed revealed that he is an auto driver. On the evening of 23.04.2012, he with his auto left the house at about 4 / 5 p.m. to take passengers. He received a call from Hamida that the prosecutrix, after leaving her son Junaid with her, had gone to the market but has not returned nor she has been picking up the cell phone. He contacted on her mobile no. 9971668438 from his mobile number 9810780416 who told him that she has come at Lajpat Nagar market to do shopping for Junaid. When she did not reach home till 9:30 p.m., Hamida again called him that she has tried to contact the prosecutrix on cell phone but her mobile phone was not reachable. He spoke to her. She informed him that she had gone to the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 3/94 Defence Colony market, she has taken a taxi for reaching Rohini and the taxi number is 9551. Thereafter, he did not have communication with her.

7. After getting her dead body identified, her postmortem was got conducted at the mortuary, AIIMS. Her dead body was handed over to Javed. Her exhibits were taken, sealed with the hospital seal and handed over to the police alongwith the sample seal. The exhibits were deposited with the DNA unit of Department of Forensic Medicines AIIMS for preparing DNA finger printing. The autopsy surgeon opined the cause of death as Asphyxia due to combined effect of ante mortem smothering and throttling, which were sufficient to cause death in ordinary course of nature individually as well as collectively. There were findings suggestive of sexual assault. Her swabs were preserved to be examined at CFSL lab. On the basis of the opinion, section 376 IPC was added.

8. Transport authorities / car owners were contacted in the area of NCR to search for the particular vehicle but no positive result came. The call details of the deceased and the persons who were in her constant touch were analyzed. It was found that the prosecutrix boarded the taxi between 9:40 p.m. to 10:00 p.m. and at that particular time, she was communicating with Javed. Her cell ID (20351) was at the tower on shop no. 41, Defence Colony Market A Block. The conversation lasted for 646 seconds. The cell ID where the call terminated was at the location (372) 2425 Lodhi Institutional Area. There was no call on the mobile of the deceased till 23:14:47 when an SMS was delivered on the mobile. At that particular moment of time, the cell ID location (6312) was at A20, Kailash Colony, New Delhi. Thereafter, her cell phone was at the location 81, National FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 4/94 Park, Lajpat Nagar (873) New Delhi, which remained from 11:28:15 p.m. to 12:00:22 a.m. At 12:14:19, there was another call on the cell phone of the deceased and as per the cell ID (tower no. 972) chart, the location was in the vicinity of Satya Niketan, Nanak Pura. The call terminated at cell ID no. 32047 i.e. Shanti Niketan, Moti Bagh. The call was made by Hamida on the cell phone of the deceased which according to Hamida was attended by some unknown person who told her that he has found the cell phone in the area of Noida. When she tried to inquire further, he became annoyed, disconnected the phone and abused her. She again tried to contact on the number but found it switched off. Investigation revealed that during that period, Javed and Hamida kept on trying to contact the deceased on her mobile.

9. On 13.05.2012 at about 3:30 p.m., SOS unit of Crime Branch Kotwali received an information vide DD no. 7 about the accused persons. At the pointing out of the secret informer, accused Pardeep was apprehended from the service lane, Moti Bagh behind the bus stand with Tata Indigo taxi no. PB 01 9551. He disclosed of his involvement in this case. He took the police party to the third floor of Jeeta ka makan, village Mochi Bagh, Nanak Pura and got apprehended the accused Sikander Singh @ Soni. He also disclosed of his involvement in this case. The Indigo taxi was taken into possession.

10. Inspector Ishwar Singh on receipt of information from SOS Crime Branch, on 14.05.2012, went to the Court and arrested both the accused persons. He again interrogated them. Their police custody remand was obtained. Accused Sikander @ Soni took the police party to the place FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 5/94 near Erose Tower, Nehru Place and got recovered a pair of black sleepers and a black small purse from the bushes on the road side leading from Kalkaji temple to Satyam Cinema, Nehru Place. An acknowledgment slip of the Adhar card in the name of the deceased was found in the purse. Accused Sikander disclosed that he had thrown the sleepers and purse at the aforesaid place after throwing the dead body from the taxi. The accused persons also pointed out the place where they had thrown the body. Search of mobile of the deceased was made but it was not found. The accused persons also pointed out the place i.e. round about adjacent to Nehru Stadium where they had gang raped the deceased in the car.

11. Both the accused persons were got medically examined at AIIMS. They were found capable of performing sexual intercourse under normal circumstances. Their blood in gauze were taken.

12. Accused Pardeep pursuant to the disclosure statement took the police party to his house at village Takhtgarh, PS Noorpur Bedi, Distt. Ropar, Punjab and got recovered two small rings (one ring and one small ear ring) belonging to the deceased. According to the accused persons, Sikander @ Soni had received the last call of Hamida on the mobile of the deceased.

13. The exhibits of the deceased and the accused persons were sent to the laboratories. As per the report, DNA profile obtained from Ex.448 (uterine swab), Ex.449 (Vaginal swab), Ex.450 (Vaginal swab) and Ex.451 (anal swab) showed mixed profiles sharing DNA profile from Ex.447 (blood stained gauze of victim), Ex.453 (finger nails of left hand of the victim), Ex.454 (finger nails of the night hand of the victim), Ex.455 FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 6/94 (fresh blood sample of Sikander) and Ex.456 (fresh blood sample of Pardeep). The DNA profile from exhibit 455 (fresh blood sample of Sikander) and exhibit 456 (fresh blood sample of Pardeep) were found in the exhibits 448 (uterine swab), 449 (vaginal swab) and 450 (vaginal swab). Section 201/34 IPC was added as it was found that the accused persons not only gang raped and killed the prosecutrix but also destroyed the evidence.

14. During the course of investigation, CDRs of the mobile number of deceased as well as of the accused persons were analyzed. The analysis revealed that the route of the cell phone of the deceased was same as that of the locations of the mobile phones of the accused Sikander @ Soni (mobile no. 9871895635 and 9871428765) and the accused Pardeep Singh (mobile no. 9958936466 and 9899538198). It was found that the movement of the accused Sikander at 22:09:41 was on cell ID tower (372) i.e. Lodhi Institutional area (mobile no. 9871895635), at 21:58:32 on cell ID tower (372) i.e. Lodhi Institutional area (mobile no. 9871428765), at 22:47:51 hrs on cell ID tower (8622) i.e. Andrews Ganj (mobile no. 9871428765), at 22:29:11 hrs on cell ID tower (54141) i.e. Greater Kailash PartI (mobile no. 9871428765) and at 23:29:11 on cell ID tower (54141) i.e. Greater Kailash PartI (mobile no. 9871428765). It was also found that the movement of the accused Pardeep from 22:03:33 hrs. to 22:12:58 hrs. was on cell ID tower (372) i.e. Lodhi Institutional area (mobile no. 9958936466). The locations of the Cell IDs covering movements of mobile of the deceased (9971668438) at 21:42:12 hrs. was at Defence Colony Market, BlockA, (20351) and it terminated at 23:14:47 at Lodhi FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 7/94 Institutional Area (372). At 23:14:47 hrs. it was at Kailash Colony A Block (6312) and at 23:28:15, 23:28:22, 23:28:28 hrs. it was at National Park, Lajpat NagarIII (873). From 23:28:50 it started from National Park, Lajpat Nagar (873) and terminated at Greater Kailash PartI (54141). At 23:29:04 hrs. it was at National Park, Lajpat Nagar (873). At 00:00:22, 00:01:30, 00:01:34 hrs. it was at National Park, Lajpat Nagar (49084), at 00:01:05 hrs. it was at Andrews Ganj (8622), at 00:1013 hrs it was at Shanti Niketan Moti Bagh (32047), at 00:11:11, 00:11:21 hrs. it was at Satya Niketan, Nanak Pura, (972) and at 00:14:19 hrs. it was at Satya Niketan, Nanak Pura (971).

15. The car was got inspected from the FSL team of Rohini on 14.05.2012. The exhibits were collected from the car. They were sent to the FSL for DNA finger printing as well as chemical examination. As per the report, the DNA profile generated from the stranded hairs did not match with the DNA profile generated from the blood in gauze of accused Sikander and Pardeep Singh. DNA profile generated from blood stained seat cutting did not match with the DNA profile generated from the blood in gauze of the deceased and the accused persons.

16. During investigation, Javed, husband of the deceased produced a visiting card of Parsva Jewellers from whom the deceased had purchased the six small ear rings. The jeweller Vishal Jain was contacted. He produced one small ear ring, which he had retained since the deceased had not made the full payment. The small ear ring was seized. It was sent to the Physics Division of FSL for matching with the other ear rings worn by the deceased at the time of her death and the ear ring recovered from FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 8/94 the accused Pardeep Singh. As per the report, ear rings were found similar in respect of their design, pattern of closing, size, weight and metal. 17 TIP of the sleepers and the purse of the deceased was got conducted on 04.08.2012. Javed correctly identified them. Investigation revealed that taxi PB 01 9551 belonged to the accused Pardeep and the accused Sikander @ Soni was his close friend.

18. The viscera of the deceased was sent to the laboratory and as per the report, no metallic poisons, ethyl and methyl alcohol cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides were detected.

19. After the investigation, both the accused persons were sent for trial for the offences punishable u/s 302/376/201/34 IPC. Committal and Charge:

20. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide detailed order dated 12.03.2013, prima facie case was made out against both the accused persons for the offences punishable u/s 376(2)(g), 302/201 r/w section 34 IPC. Charge was framed. The accused persons pleaded not guilty and claimed trial.

Prosecution Evidence :

21. To substantiate its allegations against the accused persons, prosecution examined as many as forty three witnesses.

Material Witnesses:

PW11 Smt. Hamida is the first wife of Javed. She stated that she was married to Javed about 10 years FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 9/94 ago. She has four daughters. She lives at Sector26, Rohini. Deceased was the second wife of Mohd. Javed. He married her about six years ago. The deceased used to live with Javed at house no. D9/114, Sector16, Rohini. Deceased had a son namely Junaid. Javed is an auto driver. She stated that whenever the deceased used to go to the market or for some work, she used to drop her son at her house. On 23.04.2012 at about 4:00 / 4:30 p.m., her husband left the house with his auto. At about 5:00 / 5:30 p.m., deceased came in her house, dropped her son and said that she is going to the market for shopping. Since her son was crying, she called the deceased on her mobile but it could not connect. She called her twice but her mobile was not reachable. She then called Javed and told him the matter. After five minutes, Javed called her back and told her that he has talked to the deceased, she has gone to Lajpat Nagar market to buy something for her son and will return soon. When the deceased did not come, she again called Javed and told him that Junaid is crying and the deceased has not come. Javed again called her back and told her that her phone is switched off and he is trying to contact. He also asked her to contact her. She tried several times in between 11:00 to 12:00 p.m. Though, FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 10/94 the bell rang but no one picked the mobile. At around 12:00 night, a person picked the mobile phone of the deceased. When she requested him to make her talk to the prosecutrix, he told her that he has found the mobile at Noida road. He thereafter disconnected the mobile. She again called him but he did not pick up the mobile. When she called him for the third time, he picked the mobile, abused her and disconnected the mobile. Thereafter when she called the deceased on her mobile, she found it switched off. She then called Javed and narrated him the incident. She stated that the deceased could not be traced and her husband lodged her missing report. She stated that when the deceased left the house, she was wearing black jeans pant and a designer top of white and black colour. She stated that on the second night after the incident, the police showed them photograph Ex.PW4/D of the deceased and from the photograph, they identified the deceased. She stated that the mobile number of the deceased is 9971668438 and the deceased herself had saved her number in her sim. She stated that she had called the deceased from the number 9717107757 which was in the name of Javed.

On being crossexamined, she stated that when the deceased dropped her son with her, she did not tell FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 11/94 her the name of the market where she was going. She stated that she called Javed at about 7:30 p.m. She admitted that the mobile number of the deceased was not saved in the name of the deceased but as "JaJJJJJ". She denied that she had an hatred feeling towards the deceased and did not like her or that because the deceased had a son and she has daughters, her husband Javed used to give more preference to the deceased and she was jealous of her. She stated that the deceased, earlier also, many a times, used to leave her child with her whenever she used to go for shopping.

PW24 Mohd. Javed was the husband of the deceased. He stated that the deceased was his second wife. He had married her about 8 - 10 years ago. He used to live with her at Sector16, Rohini. His first wife Hamida used to live at Sector26, Rohini. He used to drive auto. He stated that the deceased used to leave her son Junaid with Hamida whenever she used to go for shopping.

He stated that on 23.04.2012, he left the house at Sector16 Rohini with his auto at about 4:00 / 5:00 p.m. At about 7:00 / 7:30 p.m., he received the call from Hamida that the deceased dropped Junaid at her house and told her that she was going for shopping at FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 12/94 Lajpat Nagar Market. She also told him that Junaid is crying and she was trying to contact her on her mobile but unable to contact. He told her that he would call the deceased. He stated that since there were passengers in his TSR, he could not call the deceased. After dropping them, he called the deceased who told him that she was at Defence Colony and would come after meeting her brother. It was around 9:30 p.m. She told him that she has hired a taxi from Defence Colony for Rohini. When he asked her the taxi number, she told him the number 9551. He stated that Hamida again called him at 11:00 / 11:30 p.m. that the deceased has not yet come. He asked her to contact the deceased and also told her that he is also trying. She told him that her bell is ringing but she is not picking up the phone. He also tried on her number but found it ringing. He stated that the receiver on the other side used to disconnect the phone immediately after the first ring and sometimes, it appeared that the phone was switched off. He stated that Hamida again called him and told that a boy had attended the call and when she asked him about her whereabouts, he told her that he has found the mobile from Noida, he then abused her and disconnected the phone. Hamida also told him that FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 13/94 when she again tried to contact the deceased, her phone was switched off.

He stated that he searched for the deceased in the area of Defence Colony. He also went to Noida Toll bridge but could not locate her. He then returned home. He also went to the house of the brother of the deceased at R.K. Puram but did not find her. Finally, on the next day, he lodged the missing report at the police station K.N. Katju Marg. He stated that since, he was perturbed and was under shock, he inadvertently mentioned in the missing report that on her right hand Javed was tattooed though it was tattooed on her left hand or that the deceased was wearing salwar suit and red slippers. He stated that when he returned home and checked her belongings, her suit was hanging on the khunti and her black floaters were not in the house. He stated that the deceased used to keep a small purse with her which was not there in the house. He stated that he noticed the discrepancy in the report at about 8:00 / 8:30 p.m. Although, he thought that he would get it corrected on the next day but on the same night at about 12:30 a.m., 6 - 7 police officials came in his house at Sector26 and showed him the photograph of the deceased from which, he identified the deceased.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 14/94 He stated that about 2 - 2½ months ago, the deceased had purchased three pairs of ear rings from the jewellery shop at Sector 17, Rohini. Since she could not make the full payment, the jeweller kept one piece of ear ring and asked her to take it after making full payment. He stated that the deceased had shown him the visiting card Ex.PW8/B of the jeweller, on the overleaf of which, the jeweller had mentioned the amount received and the balance amount. He stated that he had kept the card in the drawer of his almirah which he handed over to the police on 26.05.2012 vide memo Ex.PW24/A. He stated that on that day, his wife/deceased was wearing four pieces of ear ring and she had kept one of the ear rings in her purse. She was also wearing a ring in her finger and a black pendant. He identified the dead body of the deceased in the mortuary of AIIMS and received the dead body after postmortem. He also joined the TIP proceedings of the case property and stated that he identified the articles of the deceased. He identified the ear rings Ex.P2 to Ex.P5, locket Ex.P7, finger ring Ex.P8, nose ring Ex.P9, purse Ex.P10 and floaters Ex.P11 correctly.

On being crossexamined, he stated that he had married the deceased at Kalkaji mandir. They used to FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 15/94 meet each other before marriage. He had met her at Lajpat Nagar when he used to drive auto. He denied that he was not happy from his first wife. He stated that he and the deceased used to live in a rented house on a rent of Rs.4500/ and he used to earn Rs.20,000/ to Rs.25,000/. He stated that he used to leave the house with his auto at about 3:00 to 4:00 p.m. and return at about 12:00 mid night / 1:00 a.m. He stated that when he received the first call from Hamida, he was near Dhaula Kuan. He was confronted with his statements recorded during investigation where factum of telling Hamida that he would call the deceased after dropping the passengers or the deceased had told him that she was at Defence Colony was not recorded. He stated that he does not remember where he was at about 9:00 / 9:30 p.m. on 23.04.2012. He stated that he had told police that the prosecutrix had told him that she has taken taxi from Defence Colony for Rohini and had given the taxi number 9551. He denied that he was with the deceased at the time of shopping. He denied that the purse, chappals and ear rings were planted on the accused persons and he did not give visiting card of the jeweller to the police. He denied that he did not give taxi number to the police and police of its own FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 16/94 mentioned the taxi number in his statement. He stated that the prosecutrix did not ask him to take her with him when he left the house with the auto on 23.04.2012. He stated that sometimes, the passengers, who take his auto ask his auto number and check the papers. He stated that he lodged the missing report on 24.04.2012 at about 7:00 / 8:00 p.m. He admitted that such type of chappal / slippers are easily available in the market. He explained that since they were being used by the deceased, he identified them.

PW8 Vishal Jain was running a jewellery shop in the name and style of M/s. Parsva Jewller at Rohini. He stated that in 2012, a lady, namely the prosecutrix had come at his shop to purchase three pairs of small gold ear rings amounting to Rs. 2,500/. She paid him Rs. 2000/. He withheld one piece of the ring against the balance of Rs.500/ and gave his visiting card to the lady telling her to bring his card when she would pay the balance of Rs.500/. He stated that the police came at his shop and he handed over the withheld gold ring to the Police vide memo Ex.PW8/A. He proved the visiting card Ex.PW8/B showing the acknowledgement of Rs. 2000/. He stated that the lady had come at his shop on 29.02.2012. He identified the ear ring Ex.P1. He also identified the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 17/94 other four ear rings Ex.P2 to Ex.P5, which he had delivered to the deceased lady. He also identified another gold ear ring Ex.P6 being one of the six ear rings which he had sold to the deceased. He stated that all the six ear rings were of similar size, pattern and design.

On being crossexamined, he stated that he identified the ear rings on the basis of the pattern and size as the same were made by him. He, however, admitted that the ear rings do not bear his logo. Formal witnesses :

PW2 Israr Babu, Nodal Officer, Vodafone Mobile Service, proved the CDR Ex.PW2/A in respect of mobile no. 9899538198, for the period from 23.04.2012 to 24.04.2012, which was in the name of the accused Pardeep. He also proved the certificate u/s 65B of the Indian Evidence Act Ex.PW2/C and Cell ID chart Ex.PW2/D. PW6 Vishal Gaurav, Nodal Officer, Bharti Airtel proved the CDRs in respect of mobile nos.

9871895635, 9871428765, 9971668438 & 9958936466 in the name of Sikander Singh, Sikander Singh, Javed and Ram Singh Ex.PW6/B to Ex.PW6/E respectively for the period from 23.04.2012 to 24.04.2012. He proved their customer application FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 18/94 forms and certificate u/s 65B of the Evidence Act Ex.PW6/K and the Cell ID chart Ex.PW6/L. PW7 Ct. Vikas delivered the special report containing the copy of FIR and documents to the Area Magistrate and senior police officers.

PW12 Ram Bahadur @ Ramu is the brother of the deceased. On 25.04.2012, he identified the dead body of the deceased at AIIMS mortuary and gave statement Ex.PW12/A. He admitted that the deceased had married to Javed without their consent.

PW13 Ct. Dharamapal proved the DD no. 31A Ex.PW13/A dated 24.04.2012 recorded at police station K.N. Katju Marg. He stated that it was got recorded by Javed qua missing of his wife / deceased. PW14 HC Sanjiv Kumar proved the DD register for the period from 08.05.2012 to 12.07.2012. He stated that as per the register, a secret information vide DD no. 7 dated 13.05.2012 was received regarding the presence of the accused persons at Nanakpura Gurudara Moti Bagh, New Delhi. Pursuant thereof, a team was formed and the accused persons Pardeep Singh and Sikander Singh were arrested. He stated that both the accused persons were brought in the police station and arrival entry was made.

PW16 HC Lalit proved the request letter sent by FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 19/94 Addl. DCP, SE, to the Director, Forensic Medicine and Toxicology, AIIMS for analysis of exhibits for DNA profiling.

PW17 Ct. Ranjeet Singh and PW21 HC Bhagwan Singh had taken the accused to AIIMS for their medical examination qua their potency. They stated that the accused persons were examined vide MLCs Ex.PW17/A and Ex.PW17/B. Doctor after examination handed over them the exhibits of the accused and two sample seals which they handed over to PW43 vide memo Ex.PW17/B. PW17 stated that the exhibits were not tampered with till they remained in their custody.

PW18 Ct. Bhajan Singh stated that on 18.05.2012, Insp. Ishwar Singh took both the accused persons from lockup to AIIMS where their blood samples were taken by the doctor in the department of Forensic Medicines.

PW20 Insp. Mahesh Kumar prepared the scaled site plan Ex.PW20/A on the basis of rough notes prepared during the inspection of the spot.

PW22 HC Jag Narayan was the MHC(M), Crime Branch Nehru Place. He stated that on 24.05.2012, he handed over the jamatalashi of the accused persons, six sealed exhibits and a Tata Indigo taxi bearing no.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 20/94 PB 01 9551 to the IO vide RC no. 340/21. He stated that the exhibits were deposited by SI Devender Kumar on 13.05.2012. He stated that so long as the exhibits and other articles remained with him, they were not tampered with.

PW23 HC Ram Gopal had deposited the exhibits with the FSL, Rohini vide RC Ex.PW23/A and RC Ex.23/B against the acknowledgement Ex.PW23/C and Ex.PW23/D. He stated that the exhibits were not tampered in any manner till they remained in his custody.

PW25 Ms. Gomti Manocha, Ld. MM did the TIP proceedings of a pair of sleepers (floaters) and black purse Ex.PW24/B. She stated that the case property was correctly identified by the witness.

PW26 Ct. Jasvir Singh was with the IO when the accused persons were taken to AIIMS for their blood samples on 18.05.2012.

PW27 HC Ajit Singh was the duty officer. He on 24.04.2012 on receipt of rukka at 8:55 a.m. from Ct. Sukhvinder recorded the FIR Ex.PW27/A. He also made endorsement Ex.PW27/C on the rukka and sent their copies to the senior officers through the special messenger Ct. Vikas.

PW28 HC Mukhtiyar Singh brought the rojnamcha FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 21/94 of the year 2012 maintained in the police station Roop Nagar, Ropar, Punjab. He stated that on 16.05.2012, a team of police officials headed by Insp. Ishwar Singh had come at the police station Noor Pur Bedi, District Ropar, Punjab with the accused Pardeep Singh. HC Jarnail Singh went with them. Insp. Ishwar Singh had lodged DD no. 16 Ex.PW5/A. PW35 HC Suresh Chand was the MHC(M). He proved the receipts of the exhibits in the malkhana on 24.04.2012, 25.04.2012, 14.05.2012, 15.05.2012, 16.05.2012, 24.05.2012, 31.05.2012 of which he made the entries in register no. 19 at serial nos. 2856, 2858, 2884, 2886, 2889, 2898 and 2903. He stated that on 02.05.2012 and 05.05.2012, SI Satender deposited eight pullandas and one sample seal vide RC Ex.PW35/B and Ex.PW35/C. On 07.06.2012, SI Satvinder again deposited three sealed containers bearing the seal of FSL Rohini vide RC Ex.PW35/D and viscera alongwith the sample seal vide RC Ex.PW35/E. On 08.06.2012, he sent eight sealed pullandas to FSL vide RC Ex.PW35/F through Ct. Ram Gopal. He stated that on 09.07.2012, SI Satvinder deposited with him seven sealed plastic containers and two parcels from AIIMS. He also received the exhibits and reports from the FSL / FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 22/94 CFSL and made the relevant entries. He stated that so long as the exhibits remained in his possession, their seals were intact.

PW38 Ct. Bijender Singh brought the dispatch register as per which on 21.08.2013, the exhibits were sent to CFSL, CBI Lodhi Road.

PW39 Ct. Nagendra Yadav brought the dispatch register as per which on 07.06.2012 and 08.06.2012, the exhibits were sent to FSL, Rohini.

PW40 Ct. Anil Yadav on 21.06.2013, collected the FSL results and 18 envelopes bearing the seal of the FSL from the FSL Rohini and handed over the results to the IO and the exhibits to the MHC(M).

On 22.08.2013, he took the exhibits and documents from malkhana and deposited with CFSL, Lodhi Colony vide RC no. 84/21/2013. He stated that so long as the exhibits remained in his custody, they were not tampered with.

PW42 Chandershekhar was the Nodal Officer, Bharti Airtel. She brought the cell ID chart in respect of the mobile numbers 9871895635, 9871428765, 9971668438 and 9958936466 for the period from 23.04.2012 to 24.04.2012 Ex. PW 6/L. He stated that there was an incoming call at 20:18:12 for 100 seconds, seven incoming calls of durations 447 FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 23/94 seconds, 174 seconds, 1173 seconds, 346 seconds, 646 seconds and 18 seconds on 23.04.2012 and the last incoming call was at 23:28:50 of 18 seconds.

Medico Legal Witnesses :

PW10 Dr. Raghvendra Kumar, Asst. Professor, AIIMS, Bhopal did the postmortem of the deceased and gave his report Ex.PW10/A. He stated that he also conducted the examination of the genital organs of the deceased and found her labia contused and whitish liquid material in her vagina and uterine cavity. He stated that uterus was in non menstual phase. He opined the cause of death as asphyxia due to combined effect of ante mortem smothering and throttling which were sufficient to cause death in ordinary course of nature individually and collectively. He stated that the findings of suggestive sexual assault were present, so he preserved the swabs to be examined at CFSL and viscera sample to rule out any concomitant intoxication. He stated that the pattern of injury suggested struggle before death. He also took the samples / exhibits i.e. (i). Scalp hairs,

(ii). One loose hair recovered from the public region of the victim. (iii). Blood in gauze of the deceased.

(iv). Finger nails. (v). vaginal swab. (vi). Uterine swab, (vii) Anal swab. (viii). A black thread from the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 24/94 right leg. (ix). mouth swab and handed over to the police. He stated that there was no gynecological report with the inquest paper nor he inspected the crime spot nor the gynecological examination of deceased was conducted after her death.

PW34 Dr. Shashank Pooniya, was the Senior Resident, AIIMS. He gave subsequent opinion Ex.PW34/A after receipt of postmortem report and viscera analysis report that the cause of death was asphyxia due to smothering and throttling which were sufficient to cause death in ordinary course of nature individually and collectively.

Forensic Experts:

PW15 Dr. Anupuma Raina was the scientist DNA Finger Printing Laboratory, Deptt. of Forensic Medicine and Toxicology, AIIMS, New Delhi. On 02.05.2012, she received the exhibits in sealed condition. She isolated the DNA from all the exhibits and subjected them to DNA finger printing. She stated that DNA profile obtained from Ex.448 (uterine swab), Ex.449 (Vaginal swab), Ex.450 (Vaginal swab) and Ex.451 (anal swab), showed mixed profiles, sharing DNA profile from Ex.447 (blood stained gauze of victim), Ex.453 (finger nails of left hand of the victim), Ex.454 (finger nails of the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 25/94 right hand of the victim), Ex.455 (fresh blood sample of Sikander) and Ex.456 (fresh blood sample of Pardeep). She stated that DNA profile from Ex.455 i.e. fresh blood sample of accused Sikander and Ex.456 i.e. fresh blood sample of accused Pardeep were observed in the exhibits viz., Ex.448 (Uterine Swab), Ex.449 (Vaginal Swab) and 450 (Vaginal Swab). She proved the proceeding Ex.PW15/A and the report Ex.PW15/C. She denied that the samples were tampered with before their examination and no DNA was isolated from the samples.

PW30 Ms. Poonam Sharma was the Sr. Scientific Officer (BIO), FSL cum Chemical Examiner, FSL, Rohini, Delhi. She examined the exhibits and gave reports Ex.PW30/A and Ex.PW30/B. She admitted that DNA profile generated from the source of exhibits 14 (hair) and and exhibit 15 (hair) did not match with the DNA profile generated from the source of exhibit 20 (blood in gauze of accused Sikander Singh) and exhibit 23 (blood in gauze of accused Pardeep Singh). She also admitted that DNA profile generated from the source of exhibit 12 (blood stained seat cutting) did not match with DNA profile generated from the source of exhibit 1 (blood in gauze of deceased), exhibit 20 (blood in gauze of FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 26/94 accused Sikander Singh) and exhibit 23 (blood in gauze of accused Pardeep Singh).

PW31 Indresh Kumar Mishra was the Senior Scientific Officer, Biology Department, FSL Rohini, Delhi. On 14.05.2012, he had examined the Tata Indigo car no. PB 01 9551 in the office of ACP SOS Crime Branch Kotwali and lifted the exhibits i.e. blood stained cuttings from the back seat, cuttings of the back seat having dirty stains, strands of hair found on the back seat, strands of hair found on the mat lying before the back seat, Cuttings of drivers seat having dirty stains and Cuttings of front seat left to drivers seat having dirty stains and handed over to the police. He proved the report Ex.PW31/A in this respect. He stated that he reached the office of ACP at 11:30 a.m. He denied that he did not inspect the case property properly and prepared the report at the instance of the police.

PW 32 Dr. B.K. Mahapatra was the SSO1, CFSL, Lodhi Road, New Delhi. He stated that on 22.08.2013, 17 sealed parcels were received in his office. He desealed the parcels before examination and carried out biological examination of the exhibits as per the query. Upon examination, he found as under: Blood was detected on the exhibits 1, 7a, 7b, 7c, FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 27/94 10, 20 and 23. DNA profile generated from the source of exhibits 7a(Lady's top), 7b (Lady's Top), 7c (Brassiere) and 10 (Hair) were found to be of human female in origin and consistent with the DNA profile of deceased Payal (Source of exhibit: 1 Blood Stained Gauze). DNA profile generated from the Source of exhibits4 (hair) was found to be human male in origin and consistent with the DNA profile of Pardeep Singh (Source of exhibits22: Hair and 23:

Blood stained gauze). DNA profile of Sikander (Source of exhibit19: Hair and exhibit20: Blood stained Gauze) was generated. He proved report Ex.PW32/A. On being crossexamined, he denied that he prepared the false report under the influence of the IO and the exhibits were received in tampered condition. PW 33 Parshuram Singh was the Assistant Director, Physics, FSL Rohini, Delhi. He proved the report Ex.PW33/A and stated that earrings Exhibit6D1, Exhibit6D2, Exhibit6D3, Exhibit6D4, Exhibit24A and Exhibit25 were examined physically by density determination, Atomic Absorption Spectrophotometer & using other measuring tools, it was found that they were similar in respect of their design, pattern of closing, size, weight and metal.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 28/94 PW36 Dr. Kanak Lata Varma, Asst. Director (Chemistry) RFSL, Chanakya Puri, New Delhi did the chemical examination of the (viscera) exhibits 1A to 1D and stated that on chemical, microscopic and TLC examination, no metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides were detected in exhibits. She proved the report Ex. PW 36/A. PW41 Suresh Kumar Singla was the Senior Scientific Officer, GradeI, Serology in CFSL, CBI, New Delhi. He received the six exhibits from the Biology Division of CFSL, CBI for examination of species of origin and blood group and gave report Ex. PW41/A. On being crossexamined, he stated that the portions of the exhibits received from Biology division were in unsealed condition.

Witnesses of Investigation :

PW1 SI Ranjan Kumar was posted as SI at the police post Nehru Place, Kalkaji. He on receipt of call vide DD no. 10 Ex.PW1/A dated 24.04.2012 reached the spot with Ct. Sukhvinder behind MTNL office, near Metro Pillar no. 127 where he found the dead body of the deceased in semi naked condition with FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 29/94 her face towards the ground. She was wearing black and white colour top and was naked down the waist. The blood had oozed out from her mouth, nose and ear. There were injury marks on her neck, forehead, eyes etc. He also found a black colour jeans pant with broken zip about ten steps away from the dead body. He found some hairs scattered on her body. On cursory inspection of the body, he found that word 'Javed' was tattooed on her left forearm and the word 'PG' was written on her middle finger of left hand. On her right forearm, Trishul and Damru were tattooed. She was wearing a ring on her finger of right hand, a nose ring and two earrings on each ear and a black thread on her neck. He made endorsement Ex.PW1/B on the DD entry and got the case registered through Ct. Sukhvinder. He handed over further investigation to Inspector Ishwar Singh.

On being crossexamined, he stated that he received the DD Ex.PW1/A at 7:30 a.m. He stated that he did not conduct the proceedings u/s 174 Cr.P.C. as it appeared to a case of murder. He stated that he sent the rukka at 8:45 a.m. PW3 SI Sanjay Kumar was the incharge Mobile Crime Team, South East District. He stated that on 24.04.2012, following a message received from FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 30/94 District Control Room, he alongwith Ct. Pawan, finger print proficient and Ct. Arvind, photographer reached the spot and carried out the inspection of the scene of crime from 9.15 a.m. to 10.45 a.m. He proved the report Ex.PW3/A. He stated that on his direction, IO lifted the exhibits from the spot. He stated that 10

- 15 persons had gathered on the spot but he does not know if IO had requested them to join the investigation.

PW4 Ct. Arvind Kumar was the photographer of the Crime Team. He took the eleven photographs of the spot from different angles depicting the dead body and the surroundings Ex.PW4/1 to Ex.PW4/11. He also proved their negatives Ex.PW4/12 to Ex.PW4/23. He also proved eight more photographs Ex.PW4/24 to Ex.PW4/31 and their negatives Ex.PW4/32 to Ex.PW4/40.

On being crossexamined, he stated that he did not take the photograph of the zip but had taken the photograph of the pant. He can not say if the photograph Ex.PW4/A shows any ring being worn by the deceased in her right hand. He, however, admitted that the photograph Ex.PW4/2 depicts two ear rings worn by deceased in her left ear. He stated that the enlarged photograph Ex.PW4/DA also shows two ear FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 31/94 rings worn by deceased in her right ear.

PW5 HC Jarnail Singh, PS Noor Pur Bedi, Distt. Roop Nagar, Ropar, Punjab stated that on 16.05.2012 at about 1:30 p.m., Inspector Ishwar Singh with some officials and accused Pardeep had come in the police station. Thereafter, the accused led them to his house in Village Takhatgarh and got recovered one gold ear ring (kan ki bali) and one silver colour ring from his house which Inspector Ishwar Singh seized vide memo Ex.PW5/B. He correctly identified the silver ring / challa and the gold ring. He also proved the DD no. 16 Ex.PW5/A regarding the arrival entry made by them.

On being crossexamined, he stated that he does not remember if the numberdar of the village had accompanied them to the house of the accused. He stated that the parents and the wife of the accused were in the house when they effected the recovery, however, Inspector Ishwar Singh did not ask them to sign the documents. He stated that one or two villagers had gathered there but they were not joined in the investigation. He admitted that the type of articles seized are easily available in the market. PW9 Ct. Sukhvinder deposed on the lines of PW1. He took the rukka to the police station for the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 32/94 registration of FIR. He thereafter reached the spot with SI Satvinder and Inspector Ishwar Singh and met SI Ranjan Kumar and the crime team. He also took the dead body to AIIMS where her MLC was prepared. He stated that the Duty Constable handed over him four gold small ear rings, one gold nose ring, one gold ring and a locket of Ammiya design, which he handed over to the IO vide memo Ex.PW9/A. On 25.04.2012, he with the SI Satwinder and Inspector Ishwar Singh went to the mortuary of AIIMS where her husband Javed and brother Ram Bahadur identified the dead body. He correctly identified the ear rings Ex.P2 to Ex.P5, locket Ex.P7, finger ring Ex.P8 and nose ring Ex.P9.

PW19 ASI Jaswinder Singh was posted in SOS Unit Crime Branch Kotwali. He stated that on 13.05.2012 on a secret information about the accused persons vide DD no. 7, they formed a raiding party comprising of himself, SI Devender, HC Raja Ram, HC Naresh, Ct. Suresh, Ct. Sushil and HC Virender, went to Gurudwara, Nanak Pura, Moti Bagh and apprehended the accused Pardeep with Tata Indigo Taxi bearing PB 01 9551 at the instance of the informer. He disclosed of his involvement in this case.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 33/94 SI arrested him vide arrest memo Ex.PW19/A and recorded his disclosure statement Ex.PW19/C. He also seized the vehicle vide memo Ex.PW19/D. He stated that the pursuant to disclosure statement, accused Pardeep led them to the third floor of Jita ka makan, Mochi Village, Nanak Pura and pointed out his associate / accused Sikander, who was arrested vide memo Ex.PW19/E. He stated that accused Sikander was interrogated and he made disclosure statement Ex.PW19/G. On 14.05.2012, SI Devender prepared a kalandra Ex.PW19/H and produced them in the Saket Court where Insp. Ishwar Singh came and arrested both the accused persons. He stated that FSL team from Rohini also reached their office and did the inspection of the car. They took the pieces of seat cover having blood stains and other stains after cutting them from the seat of the car from different places. They also seized the stranded hairs from the back seat of the car. He stated that FSL team handed over the exhibits to SI Devender who sealed them and seized vide memo Ex.PW19/J. He proved the DDs Ex.PW19/K to Ex.PW19/N and identified the accused persons and the car. He stated that the secret information was communicated to Insp. Rajesh Kumar in his office. He stated that they had requested FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 34/94 4 - 5 passersby on the spot to join but none agreed. He stated that accused Pardeep was apprehended on the road adjacent to Nanak Pura Colony and no shopkeeper / resident of Nanak Pura was called to join the investigation. He stated that the IO did not give any notice to the residents of Mochi village to join the investigation. He denied that the accused persons have already been apprehended by the police of police station Kalkaji on the second day of the incident. PW21 HC Bhagwan Singh was with the Insp. Ishwar Singh when the accused persons were arrested in the Court at Saket vide arrest memo Ex.PW21/A and Ex.PW21/B. He stated that the accused persons were interrogated and they made disclosure statement Ex.PW21/C (Pardeep) and Ex.PW21/D (Sikander). They led them to Nehru Place near Erose Tower where accused Sikander pointed out the place where he had thrown the purse and the slippers of the deceased. He got recovered the pair of black colour slippers and purse from the bushes vide memo Ex.PW21/E. He stated that the purse had a slip of Aadhar card in the name of the deceased Ex.PW21/F and it was seized vide memo Ex.PW21/FF. He stated that the accused persons then led them to the spot and pointed out the place vide memo Ex.PW21/G. They FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 35/94 then led them to Moti Bagh Flyover, Ring Road, leading to Dhaula Kuan where Sikander had thrown the sim card of the deceased, vide pointing out memo Ex.PW21/H. They then led them to a place little away from Dhaula Kuan where the accused Pardeep had thrown the mobile phone of deceased vide pointing out memo Ex.PW21/J. They also pointed out the place at Defence Colony market where they had got the deceased seated in their car vide memo Ex.PW21/K. He stated that the accused persons then took them to Jawahar Lal Nehru Stadium, CGO Complex where they had committed the rape and murder in the car on the night of 23.04.2012 vide memo Ex.PW21/L. He stated that on 15.05.2012, he and Ct. Ranjit took the accused persons to AIIMS and got them medically examined qua their potency vide MLC Ex.PW17/A and Ex.PW17/B. He stated that the doctor gave the exhibits of the accused persons i.e. their blood in gauze, pubic hairs and scalp hairs in sealed condition alongwith the sample seals which he handed over to the IO vide memo Ex.PW17/B. He stated that on 24.05.2012, he alongwith Insp. Ishwar Singh went to the malkhana of crime branch office, Nehru Place where Inspector collected the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 36/94 articles recovered from the personal search of both the accused persons and six sealed parcels bearing the seal of DKY vide memo Ex.PW21/M, Ex.PW21/N, Ex.PW21/O, Ex.PW21/P vide RC no. Ex.PW21/Q. He identified the purse and ladies sleepers.

On being crossexamined, he stated that he does not know if accused Pardeep was picked up by the crime branch police from his native place i.e. at Takhtpur, District Ropar, Punjab or if accused Sikander @ Soni was picked up from his native place Bhatoo near Takhtpur, PS Noorpur Bedi, District Ropar, Punjab. He stated that he was not present when the accused persons were arrested by the police of crime branch. He admitted that such type of purse and slippers are easily available in the market. PW29 SI Satvinder was with Insp. Ishwar Singh during the investigation of this case. He deposed on the lines of investigation. He stated that on the directions of the crime team, Insp. Ishwar Singh lifted the exhibits i.e. stranded hairs stuck on the dead body, blood in gauze from the ground, blood earth sample, earth control and the jeans pant. He proved the seizure memo of jeans pant Ex. PW 29/A, blood in gauze Ex. PW 29/B, blood earth sample Ex. PW 29/C, earth control Ex. PW 29/D and hair Ex. PW 29/E. He stated FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 37/94 that he had shown the photograph of the dead body to Javed from which Javed identified the dead body to be of his wife. He proved the photograph Ex.PW4/D. He stated that after the postmortem, he collected 15 exhibits in sealed condition belonging to the deceased alongwith four sample seals from the Autopsy Surgeon and handed over to the IO vide memo Ex.PW29/G. He also took eight exhibits out of 15 exhibits to DNA Unit, AIIMS hospital and deposited them for DNA analysis. He stated that the exhibits during his possession were not tampered with. On 10.05.2012, he collected the postmortem report from AIIMS. He was present when the accused persons were interrogated after their arrest. He stated that the accused Pardeep led them to his village Takht Garh on 16.05.2012 and got recovered a silver ring, nose ring from the almirah kept in the bedroom which were seized vide memo Ex.PW5/B. On 07.06.2012, he took the exhibits to the FSL. He stated that the exhibits during his possession were not tampered with. He proved the road certificates Ex.PW29/H, Ex.PW29/J, Ex.PW29/K, Ex.PW29/L and Ex.PW29/M and acknowledgements Ex.PW29/N and Ex.PW29/O. He also identified the purse Ex.P10, ladies sleeper Ex.P11, nose ring Ex.P9, four ear rings Ex.P2 to FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 38/94 Ex.P5, locket Ex.P7, finger ring Ex.P8, jeans pant Ex.P12, bali recovered from the accused Pardeep Ex.P6 and silver chhalla recovered from the accused Pardeep Ex.P13.

On being crossexamined, he stated that on 24.04.2012, they left the police station at 9:45 a.m. and reached the spot at 9:55 a.m. No fresh blood was oozing out from the nose, ears and mouth of the dead body when they reached there. The lock of the zip of the jeans pant of the deceased was found broken. He stated that IO did not join any public person in the investigation. He stated that Ct. Sukhvinder took the dead body to the mortuary AIIMS at 12:30 p.m. and they left the spot at 1.00 p.m. He stated that on 25.04.2012, they left for the house of Javed at 1:40 a.m. and remained there for 15 minutes. They remained in house no. 48 till 7.00 a.m. and they remained in the mortuary till 4 to 4:30 p.m. He stated that after arresting the accused persons they directly went to Nehru Place. He admitted that the purse and slippers are easily available in the market. He denied that the accused persons did not point out any place nor made any disclosure nor any recovery was effected from them or at their instance. He stated that they reached police station Noor Pur Bedi at 1:30 p.m. FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 39/94 and reached the house of accused Pardeep 02:15 p.m. He stated that the accused Pardeep directly led them to the bed room from where the recovery was effected. He stated that the father and the family members of the accused were in the house but he does not know if the village Pradhan or Surpanch had reached there. He stated that the size of the bed room was 10 to 12 feet and the recovery was effected from the iron almirah which was not locked. He stated that the IO did not obtain the signatures of the family members of the accused on the seizure memo. He stated that they left the house of the accused at 3:30 p.m. went to police station Noor Pur Bedi and reached Delhi at 11 p.m. He denied that he tampered with the exhibits. He stated that he can not say if a quarrel had taken place between accused Pardeep and owner of Gupta Dhaba on 22.04.2012 or that the police had brought the accused Pardeep in the police station on 22.04.2012 where heated arguments took place between the accused Pardeep and the police and he was detained in the police station till evening. He denied that during the period from 26.04.2012 to 30.04.2012, the accused Pardeep was called in the police station several times.

PW 37 Insp. Devender was posted as SI in SOS FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 40/94 Crime Team on 13.05.2012. He proved the secret information about the accused persons vide DD Ex.PW19/A. He formed the raiding party and apprehended the accused persons with the vehicle. He produced both the accused persons in Court and handed over their custody to Insp. Ishwar Singh for further investigation. He also called the team of FSL, Rohini and got the vehicle inspected. In his presence, the exhibits from the car were collected and seized vide memo Ex.PW19/J. He deposited the exhibits in the malkhana of the crime team and identified the car. On being crossexamined, he stated that the information was received by HC Jasvinder Singh. They left the office of the crime team at about 3 p.m. and reached service lane behind Nanak Pura Gurdwara bus stand. He stated that the accused Pardeep was interrogated in the car. No public person was present when the car was seized. He stated that they left for the house of the accused Sikander at 4:45 p.m. He admitted that he did not prepare site plan of the house of the accused. He stated that the accused Sikander was alone in his room and no public person was present at the time of his arrest. He stated that the seal after use was given to Ct. Sushil who returned after 2 - 3 days. He had also given information to the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 41/94 relatives of the accused regarding their arrest on phone and their relatives had come in his office. He denied that the accused Pardeep was lifted from his native place at Takht Garh, District Ropar, Punjab by Insp. Rajesh on 13.05.2012 at about 6:30 a.m. He stated that team had gone to the village of the accused Pardeep but did not find him there. He denied that the accused Sikander was lifted from Sector62, Noida on 12.05.2012.

PW 43 Inspector Ishwar Singh was the investigating officer of this case. He deposed on the lines of the investigation. He also collected the MLC no. 41873/12 of the deceased Mark PW43/A wherein it is mentioned that an unknown person is brought dead in the surgery casualty on 24.04.2012 at 12:55 p.m. On being crossexamined, he stated that they left the police station at about 9:30 / 9:45 a.m. and reached the spot in 10 minutes. On the spot, they met the crime team headed by SI Sanjay. He stated that the site of the Metro was under construction. He stated that many persons had gathered on the spot, they were joined to identify the deceased but they did not know the deceased. He also tried to find out the identity of the deceased through Zip net and fresh missing reports lodged in the nearby police stations.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 42/94 He stated that he remained on the spot till 4:00 / 4:30 p.m. but he did not get any response till evening. He stated that when he was looking at zip net in the police station at late night, he found an information about a missing lady namely the prosecutrix W/o Javed at G9, Sector16, Rohini. The informant had given his mobile number. As per the information, there was a tattoo of Javed on her right hand. He stated that as per the description they noted after the inspection of the dead body, there was a tattoo of Javed on the left hand of the deceased. He admitted that in the missing report, the informant did not give the vehicle number or that the deceased had hired a taxi. He stated that the missing report of the night of 24 / 25.04.2012 and his investigation revealed that the deceased had left her house at about 5:00 / 5:30 p.m. on 23.04.2012, and dropped her 1½ years old son with the first wife of Javed at Sector26, Rohini. He stated that he had called Javed from the number and gone to his house on the same night with SI Satvinder. They found the house at Sector16, Rohini locked and they met Javed and his wife Hamida in the house at Sector 26, Rohini. He also showed Javed the photograph of the deceased which he had taken from his mobile from which, he identified the deceased of whom, he FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 43/94 had made missing report. He stated that the exhibits were sent to FSL Rohini on 07.08.2012. Some samples were returned by the FSL and they were again sent on 08.08.2012. He denied that the exhibits were tampered before sending to FSL.

He stated that the information regarding apprehension of accused persons by crime branch was received in the morning. SI Devender had produced the accused persons in the Court. He denied that the accused persons did not make any disclosure statement nor pointed out any place nor any recovery was effected from them or at their instance and the recovery was planted on the accused persons after taking from Javed. He, however, admitted that such type of purse and chappals are easily available in the market. He stated that the place of recovery was an open land about 100 to 150 yards from Erose Tower towards Kalkaji and there were bushes of about 2 feet height on the ground. He stated that they remained on the spot for two hours upto 7:30 / 7:45 p.m. He stated that they went to the village of accused Pardeep on 16.05.2012. They left Delhi in the early morning and reached there at about 2:00 p.m. First of all, they went to the local police station and then to the house of the accused after taking HC FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 44/94 Jarnail from there. He stated that they reached the house of the accused Pardeep at about 2:15 p.m. and his house was single storeyed on a plot of about 200 sq. yard. The parents and wife of the accused were in the house and about 10 - 15 persons gathered there. He stated that the accused got recovered the jewellery from the almirah of the bed room and he did not use key to open the almirah. He stated that they remained in the house of the accused for 1½ - 2 hours and from there, they straight away came to Delhi. He stated that Javed had come in the police station on 26.05.2012 afternoon to hand over the visiting card. He was alone. He admitted that he did not collect the CDR of Javed nor verified it. He, however, admitted that there were talks between the deceased and Javed. He denied that real culprit was Javed and the accused persons have been falsely implicated.

He stated that he can not tell if on 22.04.2012, a quarrel had taken place between the accused Pardeep and the owner of Gupta dhabha or that the police had brought the accused Pardeep in the police station where some heated arguments took place and the accused Pardeep was detained there till evening. He denied that during the period from 26.04.2012 to 30.04.2012, accused Pardeep and Sikander were FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 45/94 called at the police post Nehru Place several times and were made to sit for long. He denied that they used the vehicles of the accused persons for their personal use.

Statement of Accused persons u/s 313 CR.P.C. :

22. After the prosecution evidence, statements of the accused persons u/s 313 Cr.P.C. were recorded. They denied all the incriminating evidence against them and pleaded their innocence.

23. Accused Sikander @ Soni stated that he was apprehended by the police from Sector62, Noida on 12.05.2012. Accused Pardeep stated that he was lifted from his house at Punjab on 13.05.2012 at 6:30 a.m. On 06.05.2012, his brother had come from abroad. He with his brother had gone there. Both of the accused persons stated that they did not make any disclosure statement and the police obtained their signatures on some blank papers. They stated that nothing was recovered from their search or at their instance and the police planted the search on them to falsely implicate them in this case. They denied having pointed out the places and stated that they did not commit any wrong. They, however, admitted that they were medically examined but stated that their samples were manipulated and tampered with to falsely implicate them in this case. They stated that the FSL reports are false and the case property was planted on them. They stated that on 22.04.2012, a quarrel had taken place between Pardeep and the owner of Gupta Dhaba. Police had brought Pardeep in the police station on 22.04.2012 where some heated arguments took place between Pardeep and the police. Sikander used to go to Pardeep. Sikander FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 46/94 had also gone with Pardeep to the police station and for that reason, they were detained in the police station. They stated that during the period from 26.04.2012 to 30.04.2012, they were called at the police post Nehru Place and the police station Kalkaji several times and both of them were made to sit for long. They stated that the police officials used to use the vehicle of Pardeep for their personal use. They stated that the police officials forcibly got their hair and semen samples to falsely implicate them in this case.

Accused Pardeep stated that no vehicle was recovered at his instance and he never took the police party to anywhere nor the accused Sikander was apprehended at his pointing out. He stated that no ornament was recovered from him or at his instance. He, however, admitted that he was using the mobile phone bearing no. 9899538198.

Defence Evidence :

24. In defence, accused Pardeep examined two witnesses.

DW1 Smt. Gurbax Kaur is the wife of the accused Pardeep. She stated that on 13.05.2012, 5 - 6 police officials came in her house at 6:30 a.m. and inquired about Pardeep. He was in the house. The police officials apprehended Pardeep. Accused Sikander @ Sikander Soni was also with the police at that time. The police asked her to hand over the Tata Indigo car PB 01 9551. She asked the police why they have apprehended her husband and taken the key of the car but they did not give any satisfactory reply and took the accused with them. They asked her to come in the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 47/94 police station Kalkaji, New Delhi. She stated that Sarpanch of the village had come in her house. Her fatherinlaw alongwith the Sarpanch and her relatives went to the police station Kalkaji. She stated that the police did not do the search of her house and falsely implicated the accused.

On being crossexamined, she admitted that she did not make complaint in the local police station or with any authority regarding the arrest of the accused by the police. She denied that the accused was arrested from near Gurudwara, Nanak Pura, Moti Bagh on 13.05.2012 with the car. She denied that on 16.05.2012, accused Pardeep had come with the police in her house and got recovered the jewellery from the almirah of the bed room.

DW2 Hajra Singh was the Panch of the village Takht Garh, PS Noorpur Bedi, District Ropar, Punjab. He stated that on 13.05.2012, at about 6:30 / 6:45 a.m., 5

- 6 persons came in his village in plain clothes. Father of the accused Pardeep came to him and told him that they have apprehended the accused Pardeep. He went to his house. He stated that those 5 - 6 persons told them that they would take the accused to Delhi since there is a case against him. They also handcuffed him. When he inquired about the case, they did not give FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 48/94 any satisfactory answer. He stated that he alongwith the Sarpanch and the father of the accused went to the office of crime branch Kalkaji to meet Insp. Ishwar Singh. He told them that there is a case against Pardeep. They thereafter returned to their village. He stated that he does not know if the police had come in his village after 13.05.2012 to effect recovery from the house of accused Pardeep.

On being crossexamined, he stated that they did not make complaint at the police station Noorpur Bedi against those 5 - 6 persons who had brought the accused Pardeep from his village to Delhi. He stated that the father of the accused did not discuss with him about this case after 13.05.2012. He denied that the police party did not apprehend the accused Pardeep from his village and had arrested him from Delhi. Arguments & Contentions :

25. I have heard the arguments advanced by Ld. Addl. PP Sh.

Mohd. Iqrar for the State and Ld. Amicus Curie Shri Tariq Hashmi for the accused Pardeep and Sh. Jitender Tyagi, Ld. Counsel for the accused Sikander Soni.

26. Ld. Addl. PP submitted that the deceased was a young woman, 24 26 years of age. She was married to Mohd. Javed. She was the second wife of Javed. His first wife Hamida used to live with her daughters in the house at Sector26, Rohini. The deceased used to live with Javed and FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 49/94 her 1½ years old son Junaid in a rented house at Sector16, Rohini. Mohd. Javed was an auto driver. Ld. Addl. PP submitted that on 23.04.2012 at about 5:00 / 5:30 p.m., deceased dropped her son in the house of Hamida and went for shopping. Since, her son Junaid was becoming restless, Hamida called the deceased on her mobile but it did not connect. She then called Javed who had left the house with his auto at 4:00 / 4.30 p.m. Javed contacted the deceased who told him that she was at Lajpat Nagar market. When deceased did not come, Hamida again called Javed. He contacted the deceased. She told him that she was at Defence Colony and has hired a taxi from Defence Colony for Rohini. On his asking, she gave him the taxi number 9551. When the deceased did not reach home, Hamida contacted her several times. At about 12:00 night, a person attended her call and told her that he has found the phone from Noida. When she asked from him the whereabouts of the deceased, he got irritated and disconnected the mobile. Thereafter, he did not pick up the call. Javed searched for the deceased at various places but when he did not get any clue, he lodged the missing report on 24.04.2012 at about 9:00 p.m.

27. Ld. Addl. PP further submitted that the dead body of the deceased was found on 24.04.2012 at about 7:30 a.m. from the place near Metro flyover, Nehru Place adjacent to Metro pillar no. 127 in semi naked condition. She was wearing black / white colour top. There were injury marks all around her face. A jeans pant with its zip broken was lying at a distance of about 10 steps from the body. There were broken hairs on her body. She was barefooted. Javed was tattooed on her left forearm. Trishul and Damroo were tatooed on her right forearm. She was wearing nose pin, FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 50/94 two pairs of ear rings, locket and a ring. Information was given on the zip net and to the local police stations but no clue was found. The crime team was called and the body was sent to the mortuary AIIMS for postmortem.

28. Ld. Addl. PP submitted that Insp. Ishwar Singh when he was checking the zip net at late night, found that information of missing of a lady. He contacted on the mobile of the informant as the description mentioned in the missing report was matching with the dead body. He with his team went to Rohini and contacted Javed who from the photograph Ex.PW4/D identified the dead body to be of his wife. Ld. Addl. PP submitted that Javed / PW24 gave the IO, the visiting card of the jeweller regarding purchase of ear rings by the deceased. He also gave the vehicle number which the deceased had hired from Defence Colony for Rohini.

29. Ld. Addl. PP submitted that the postmortem of the deceased was conducted and as per the postmortem report Ex.PW10/A, the cause of death was Asphyxia due to combined effect of antemortem smothering and throttling, which were sufficient to cause death in ordinary course of nature individually and collectively. On the examination of the genital organs of the deceased, her labia was found contused and there was whitish liquid present in her vagina and uterine cavity. Her uterus was in non menstual phase. PW10 gave findings of suggestive sexual assault. Her swabs were preserved. Her exhibits and viscera were sent to the laboratory.

30. Ld. Addl. PP stated that on 13.05.2012, a secret information was received about the accused persons qua their involvement in this case. Accused Pardeep was apprehended with Tata Indigo Taxi PB 01 9551 from the place near Gurudwara Nanak Pura, Moti Bagh. At his instance, FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 51/94 accused Sikander was apprehended from Mochi village, Nanak Pura. They disclosed of their involvements in this case. They took the police party to the place at Nehru Place from where accused Sikander got recovered purse and slippers of the deceased from the bushes near the place from where the dead body was recovered. The purse was found to contain an acknowledgement of Aadhar card in the name of the deceased. Purse and slippers were subjected to TIP and in the TIP proceedings, PW24 correctly identified the belongings of the deceased. Ld. Addl. PP submitted that the accused persons also pointed out the place near Nehru Stadium where they gang raped the prosecutrix and strangulated her to death. Ld. Addl. PP submitted that the accused Pardeep pursuant to the disclosure took the police party to his village at PS Noorpur Bedi, District Ropar, Punjab from where he got recovered an ear ring and a ring of the deceased from the almirah. Ld. Addl. PP submitted that during investigation, one ear ring was handed over by PW8, Jeweller from whom the deceased had purchased the ear rings. He had retained the ear ring since the deceased did not pay him the full amount. All the ear rings were sent to the FSL and as per the report of Ex.PW33/A, all the ear rings were found similar in respect of their design, pattern of closing, size, weight and metal.

31. Ld. Addl. PP submitted that the blood samples of the accused were taken in the forensic unit, AIIMS. They were subjected to DNA finger printing analysis. The exhibits of the prosecutrix were also subjected to DNA finger printing analysis. As per the report, the DNA profiles generated from their blood samples were observed in the uterine swab and vaginal swab of the prosecutrix. The visible injury marks all over the face FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 52/94 and other part of the body, presence of bunch of broken hairs on the dead body, broken hook of the zip of the jeans pant of the deceased depicted the story of forcible rape and the brutality of the accused persons towards the deceased. The accused persons killed the deceased just to fulfill their sexual lust and dumped her body in the vicinity of Nehru Place. Ld Addl. PP submitted that the FSL report and the postmortem report, clearly inculpate the accused persons. They gang raped the prosecutrix and strangulated her to death. They thereafter tried to destroy the evidence. They threw the dead body near Metro station. They threw her belongings near the bushes. Accused Pardeep took away her ear rings and ring with him.

32. Ld. Addl. PP stated that both the accused persons Pardeep and Sikander were using the mobile phones. The deceased was also carrying the mobile phone. Their call details and cell locations were analyzed and it was found that the locations of both the accused persons and that of the deceased were at the same place during the time and period of incident. Ld. Addl. PP stated that there is enough forensic, scientific and circumstantial evidence against both the accused persons to prove their complicity. The presence of the accused persons at the scene of crime is established beyond doubt.

33. Ld. Counsel for the accused persons per contra argued that both the accused persons are innocent. They have been falsely implicated. Accused Sikander was apprehended from Sector62, Noida on 12.05.2012. Accused Pardeep was lifted from his house at Takht Garh, PS Noorpur Beri, District Ropar, Punjab on 13.05.2012 at 6:30 a.m. They were shown FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 53/94 arrested on 13.05.2012 at about 4:30 p.m. from the area of Moti Bagh. No public person was joined when the arrest of the accused persons was made though the places from where the accused were allegedly apprehended were the public places and public persons could be easily joined. Ld. Counsel referred the RTI replies to contend that the police officials had gone to the village of accused Pardeep for his arrest. DD no. 8 dated 12.05.2012 at 8 p.m. was recorded in the register of SOS Unit of Crime Branch, Daryaganj. They had entered their arrival at the police station Noorpur Bedi at 6:30 a.m. on 13.05.2012 vide DD no. 7A. About 18 cameras were installed in the area of Nanak Pura Gurdwara, Moti Bagh but the prosecution did not place the CCTV footage of the area. Testimonies of DW1 and DW2 show that the accused Pardeep was arrested from his house at village Takhtpur on 13.05.2012 which is also the case of the accused. Ld. Counsel stated that DW2 was the Panch of the village and is the credible witness. Ld. Counsel referred the testimony of PW 37 to contend that he has deposed that the arrest of the accused Pardeep was informed to his family members so how the signature of his father appeared on his arrest memo when he was not in Delhi and was in Punjab. It would take about 10 hours from Punjab to reach Delhi. It also creates doubt on the veracity of the prosecution case. Ld. Counsel stated that the accused Pardeep was arrested from his house on 13.05.2012 at 7:00 a.m. and shown arrested in Delhi at about 4:30 p.m. PW 37 did not join the landlord of the accused Sikander when he allegedly arrested him from his house nor the police seized any document to show that the accused Sikander was living on rent in the said house. Ld. Counsel stated that the accused Sikander was FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 54/94 arrested from Sector62 Noida on 12.05.2012 and was shown arrested on 13.05.2012 from Delhi. Ld. Counsel stated that since the arrest of both the accused persons has been manipulated by the police on the face of it, the alleged observing of the DNA profiling of the blood sample of the accused persons with the uterine and vaginal swab of the prosecutrix / deceased is manipulated.

34. Ld. Counsel further argued that the disclosure statements allegedly given by the accused persons are inadmissible in evidence. Their signatures were taken on blank papers under threat and pressure which were fabricated as disclosure statements. PW24 did not give the complete number of the vehicle which the deceased had allegedly told him when she boarded the taxi. There can be number of vehicles in Delhi / India bearing the same number. Hence, both the accused persons deserve the benefit. The alleged recovery at the instance of the accused persons is farce as no public witnesses were joined while making the alleged recovery. The alleged recovery was made after about 20 days from the date of the alleged incident. The purse and slippers would not have been in identifiable position in that event. Ld. Counsel stated that it has also come in the testimonies of prosecution witnesses that these types of purse and slippers are easily available in the market. Ld. Counsel stated that all the places of occurrence were known to the police before the arrest of the accused persons. PW24, when he lodged the missing report of the deceased, did not give the vehicle number which shows that the story of vehicle was cooked up by the police. Further, there are contradictions in the testimonies of PW11 and PW24 as to the deceased informing PW11 about going to Lajpat FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 55/94 Nagar market for shopping. Ld. Counsel also referred the location chart and the CDRs to contend that no conclusion can be drawn from the CDRs and Cell IDs chart that the accused and the deceased were at the same location at the time of the incident. Ld. Counsel stated that had the accused persons looted the deceased, they could have taken all her jewellery, she was wearing.

35. Ld. Counsel also contended that there was delay in lodging the report as in the instant case, the report was lodged after about 17 hours. Ld. Counsel stated that on 22.04.2012, a quarrel had taken place between the accused Pardeep and the owner of Gupta Dhabha at Nehru Place. The police had brought the accused Pardeep in the police station where heated arguments took place between the accused Pardeep and the police officials. Accused Sikander used to come to meet the accused Pardeep. He also went to the police station. They were detained in the police station and were released at late hours. During the period from 26.04.2012 to 30.04.2012, they were called several times at the police post Nehru Place and the police station Kalkaji and were made to sit for long. Ld. Counsel stated that the police officials used to use their vehicles / taxis for their personal use. They have falsely implicated the accused persons at the instance of the owner of Gupta Dhabha.

Findings :

36. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record.

37. After hearing the parties at length and carefully perusing the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 56/94 record, it is clear that the case is solely based on the circumstantial evidence.

38. In the case of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, the Supreme Court laid down the conditions to be fulfilled in a case based on circumstantial evidence :

i. 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;

ii. 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 or any other hypothesis except that the accused is guilty;

iii. The circumstances should be of a conclusive nature and tendency.

iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

39. The same principles were reiterated and approved by the Supreme Court in the case of Prakash v. State of Rajasthan AIR 2013 SC 1454 wherein it was held: " These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 57/94 Circumstances:

40. The circumstances in the present case as emerged from the evidence adduced by the prosecution are as under:

1. Dead body of a female / deceased / prosecutrix aged 24 - 26 years was recovered on 24.04.2012 at 7:45 a.m. in semi naked condition bare footed with injury marks all around its face, near Metro flyover, Nehru Place adjacent to Metro pillar no. 127 and her jeans pant with her zip broken was recovered at a distance of about 10 steps from her body.

2. The death was homicidal one, not a natural one. The cause of death was asphyxia due to the combined effect of ante mortem smothering and throttling which were sufficient to cause death in ordinary course of nature individually and collectively. There were findings of suggestive sexual assault on the person of the deceased.

3. The deceased was the second wife of PW24 / Mohd. Javed.

His first wife PW11 / Hamida had been living in a different house with her daughters. The deceased used to drop her 1½ years old son with Hamida / PW11 when she used to go out for shopping etc.

4. The deceased, on 23.04.2012 at 5.00 / 5:30 p.m. had dropped her son with Hamida and gone for shopping. Her husband PW24 / Javed had left the house with his auto at 4.00 / 4:30 p.m. When the deceased did not come home and her son was becoming restless, PW11 and PW24 contacted the deceased on her mobile number of times. The deceased was using the mobile no. 9971668438. Hamida and Javed were using the mobile nos. 9717107757 and 9810780416. When she last communicated with Javed, her location was at the mobile tower on the shop no. 41, FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 58/94 Defence Colony Market A Block, New Delhi. The call started at 21:42:12 hrs. and lasted for 646 seconds at the location on 372, Lodhi Institutional area. During the period from 23:14:47 hrs. to 00:14:19 hrs., her mobile locations were at Kailash Colony, National Park, Lajpat Nagar, Greater Kailash PartI, Andrews Ganj, Satya Niketan, Nanak Pura and Shanti Niketan, Moti Bagh.

5. The accused persons were arrested on a secret information on 13.05.2012 from the area of Moti Bagh with vehicle no. PB 01 9551 and the vehicle belonged to the accused Pardeep.

6. The accused Sikander was using the mobile nos. 9871895635 and 9871428765 and the accused Pardeep was using the mobile nos. 9958936466 and 9899538198. At the relevant time, the locations of the mobile phone of the accused persons were at the same places as that of the deceased showing the continuous presence of the accused persons at the scene of crime.

7. Purse and slippers of the deceased were recovered from the bushes near Metro Station, Nehru Place at the instance of the accused Sikander pursuant to his disclosure statement.

8. Ear ring and a ring of the deceased were recovered at the instance of the accused Pardeep from his house at village Takhtpur, Noorpur Bedi, Punjab on 16.05.2012.

9. The ear ring recovered at the instance of accused Pardeep forensically matched with the ear rings, the deceased had been wearing when her dead body was recovered. One more similar ear ring was handed over by the jeweller / PW8 which the deceased had left with him since she FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 59/94 was short of money. That ear ring also matched with the ear ring of the deceased during forensic examination.

10. DNA profiles generated from the blood samples of the accused persons were observed in the uterine swab and vaginal swab of the prosecutrix on DNA finger printing analysis.

11. Motive of the gang rape and murder.

Circumstance No. 1

Dead body of a female / deceased / prosecutrix aged 24 - 26 years was recovered on 24.04.2012 at 7:45 a.m. in semi naked condition bare footed with injury marks all around its face, near Metro flyover, Nehru Place adjacent to Metro pillar no. 127 and her jeans pant with her zip broken was recovered at a distance of about 10 steps from her body.

41. As per DD no. 10 dated 24.04.2012 Ex.PW1/A, an information was received at the Police Post Nehru Place at 7:30 a.m. that a dead body of a lady in semi naked condition was lying behind MTNL office below the Metro line on the road. PW1 and PW9 have deposed that pursuant to the DD Ex.PW1/A, they reached the spot where on the left side of the road, a dead body of a lady in semi naked condition was lying with her face towards the ground. She was wearing a black and white colour top and was naked down the waist. There were injury marks on her neck, forehead, nose, eyes etc. Some hairs were scattered on her body. A black colour jeans pant with broken zip was lying 10 steps away from her body. 'Javed' was tattooed on her left forearm and 'PG' was written on her middle finger of left hand. On her right forearm, a Trishul and Damroo were tattooed. She was wearing a nose pin, two ear rings on each ear and a black FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 60/94 colour thread on her neck. PW3 and PW4, the members of the Mobile Crime team also reached the spot and did the inspection of the scene of the crime from 9:15 a.m. to 10:45 a.m. PW3 who prepared the report Ex.PW3/A has stated that the blood in cotton gauze, blood stained road concrete, road concrete control sample, hair on dead body and jeans pant black colour were seized by PW43 on his directions. PW4 had taken the photographs of the scene of the crime depicting the body and surrounding from different angles Ex.PW4/1 to Ex.PW4/11. A perusal of the photographs would show that there were injury marks on the face of the deceased and she was in semi naked condition down the waist. The photograph Ex.PW4/2 and Ex.PW4/DA would also show that there were two ear rings on both the ears of the deceased.

42. PW43 / IO, who reached the spot with PW29 and PW9, has stated that he met PW1 and Crime team on the spot. A dead body of a woman was lying there. She was naked from bottom. There were injury marks on her face. The dead body was bleeding from nose and ears and a bunch of hairs were stuck with the body. At a distance of 10 yards from the body, a jeans pant of black colour was lying. He proved the seizure memos Ex.PW9/A and Ex.PW29/E. He has stated that he got the dead body sent to the mortuary AIIMS through PW9 which fact is also proved by PW9. PW20 proved the scaled site plan of the place of incident Ex. PW20/A.

43. PW9 has stated that he took the dead body to AIIMS where her MLC was prepared. The MLC Mark 43A shows multiple bruises on the forehead, right cheek and front side of neck. PW9 has deposed that the duty constable handed over him the four gold ear rings, a nose pin, a gold FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 61/94 ring and a locket of Amiyan design, which he handed over to the IO vide memo Ex.PW9/A. PW43 has stated that he deposited the exhibits seized from the spot and the articles given by PW9 in the malkhana.

44. PW43 has deposed that there was no one to identify the dead body. They also made inquiry from the nearby police stations regarding the dead body. They also made efforts to get the dead body identified through hue and cry notice, zip net and wireless messages. On 25.04.2012 at about 12:15 a.m., he noticed on zip net that a missing report of a lady was registered at the police station K.N. Katju Marg and the word Javed mentioned in the missing report was common with the case. He immediately contacted the informant, who revealed his name Javed. He alongwith PW29 went to his house and met him. He told him that his wife was missing. He also showed him the photograph Ex.PW4/D from which Javed identified the deceased to be his wife. PW24 / Javed has stated that the deceased had left the house on 23.04.2012 at 5:00 / 5:30 p.m. to do shopping for her son after leaving her with his first wife PW11. When she did not come, he contacted her on her mobile. She told him that she was at Defence Colony and has taken Taxi for Rohini. Thereafter, her mobile did not respond. He searched for the deceased at the places at Defence colony and the house of the brother of the deceased at Humayunpur, Safdarjung Enclave but he did not get any clue. He then went to the police station K.N. Katju Marg and lodged her missing report vide DD no. 31A on 24.04.2012 Ex.PW13/A. In that report, he had given the brief description of deceased that there was tattoo of Javed on her right hand. PW24 / Javed was also taken to AIIMS mortuary, where he identified the dead body of the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 62/94 deceased to be of his wife. PW12, brother of the deceased also identified the dead body in the mortuary AIIMS and gave statement Ex.PW12/A.

45. The testimonies of above witnesses on this aspect remained unchallenged by the defence. From the above evidence, circumstance no. 1 stands proved.

Circumstance No. 2

The death was homicidal one, not a natural one. The cause of death was asphyxia due to the combined effect of ante mortem smothering and throttling which were sufficient to cause death in ordinary course of nature individually and collectively. There were findings of suggestive sexual assault on the person of the deceased.

46. PW1 and PW9 have deposed that when they reached the spot, they found a dead body of a lady in semi naked condition with her face towards the ground. There were injury marks on her neck, forehead, nose, eyes etc. Some hairs were scattered on her body. PW4 had taken the photographs of the scene of the crime depicting the body and the surrounding which would show that there were injury marks on the face of the deceased and she was in semi naked condition down the waist. PW43 / IO, who reached the spot with PW29 and PW9, has stated that dead body of a woman was lying there. She was naked from bottom. There were injury marks on her face. On inspection, he found that the dead body was bleeding from nose and ears and a bunch of hairs were stuck with the body. The MLC Mark 43A also shows multiple bruises on the forehead, right cheek and front side of neck.

47. In the instant case, PW10 had conducted the postmortem of FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 63/94 the deceased on 25.04.2012 between 2:40 p.m. to 3:40 p.m. He found blood stains and froth over the face and tongue protruded. He saw faecal matter over anus and anal canal and dilatation of anus. He noticed diffuse haematoma over frontal right and left perietal region and blood in nasal. Trachea and bronchi were congested, Pleural cavities were congested. Brain was diffuse and patchy and there was haematoma over the parietal lobes, Brain was also seen congested. PW10 found the following ante mortem injuries vide report Ex. PW 10/A : I). One contusion of size 3X2 c.m. over right middle back. 32.0 c.m. from right shoulder and 118 c.m. from the right heal. II). One contusion of size 3.5X2 c.m. over right upper middle back 14.0 c.m. from right shoulder and 144.0 c.m. from right heal. III). One laceration of size 1X0.2 c.m. over left side of the upper lip. IV). Three contusion of size 3X2.5 c.m. (abraded contusion) 3X2 c.m. and 3.5X2.5 c.m. over right side middle part and left side of the forehead respectively.

V). Multiple contusions and abrasions of variable sizes over anterior aspect of the neck. Multiple petetrial over upper part and lower part of the neck. An dissection superficial and deep extravassation of blood present thyrohyoid complex carotids and jugulars intact. Neck lymph nodes and salivary glands congested.

VI). A contusion of size 3X2 c.m. over dorsum of left hand. VII). One contusion of size 2.5X 2 c.m. over middle part of the chest. VIII). Multiple scratch abrasions of variable sizes over right side of iliae fossa.

IX). An abrasion of size 4.2X2 c.m. over right knee. X). One abrasion of size 2.5X1 c.m. over left knee. XI). One contusion of size 2X1 c.m.over upper part of front of left leg. XII). Both lips contused upper and lower gums also seen contused.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 64/94 XIII). Three scratch abrasions over dorsum of nose. Dorsum of nose contused.

XIV). An abraded contusion of size 3X1 c.m. over left side of the chin XV). A contusion of size 2X1.5 c.m. over left side of cheek over the part adjacent to the nose.

XVI). Scratch abrasions and contusions over the front aspect of the chin. XVII). An abrasion of size 3X2.5 c.m. over left side of upper part of abdominal wall.

XVIII). An abrasion of size 2X0.5 c.m. over back side of right forearm and is cres centric in shape.

He opined the cause of death asphyxia due to combined effect of ante mortem smothering and throttling which were sufficient to cause death in ordinary course of nature individually as well as collectively. Finding of suggestive sexual assault was present. The pattern of injury suggested the struggle before death.

48. PW10 has stated that he had also conducted the examination of the genital organs of the deceased and found her labia contused and whitish liquid material in her vagina and uterine cavity. Her uterus was in non menstual phase. He stated that since the finding of suggestive sexual assault was present, he preserved the swabs to be examined at CFSL and viscera sample, to rule out any concommitant intoxication. He stated that the pattern of injury suggested struggle before death. He also took the samples / exhibits i.e. (i). Scalp hairs, (ii). One loose hair recovered from the public region of the victim. (iii). Blood in gauze of the deceased. (iv). Finger nails. (v). Vaginal swab. (vi). Anal swab. (vii). A black thread from the right leg. (viii). Mouth swab. He handed over the exhibits/samples to FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 65/94 the police.

49. PW34 / Dr. Shashank Pooniya gave the subsequent opinion Ex.PW34/A after receipt of postmortem report and viscera analysis report that the cause of death was asphyxia due to smothering and throttling which were sufficient to cause death in ordinary course of nature individually and collectively. The viscera report Ex.PW36/A rules out the presence of metallic poisons, ethyl and methyl alcohol cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides. The accused persons did not challenge the postmortem report and the forensic reports as to the cause of death and the observations made by the doctors during the postmortem of the deceased. As per the FSL report Ex.PW30/A, the blood was detected on the concrete material seized from the spot and it was of human species. The report Ex.PW41/A also shows the presence of B Group blood of human origin on the ladies top, brazier and blood stained gauze of the deceased.

50. The postmortem report clearly suggests that the cause of death was asphyxia due to combined effect of ante mortem smothering and throttling which were sufficient to cause death in ordinary course of nature individually as well as collectively. There were findings of suggestive sexual assault. The pattern of injury also suggested struggle before death. The viscera report completely ruled out the possibility of death due to poisonous substance or intoxication.

51. The ingredients of Clause thirdly of S.300 of the Code were brought out clearly by Hon'ble Mr. Justice Vivian Bose in Virsa Singh v.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 66/94 State of Punjab, 1958 SCR 1495 at P.1503 as under:

"To put it shortly the prosecution must prove the following facts before it can bring a case under S.

300. "3rdly."

Firstly, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.

Once these three elements are proved to be present, the inquiry proceeds further and, Fourthly, it must be proved that the injury, of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

52. It is thus proved that the deceased was sexually assaulted and raped before her death and the death was homicidal not the natural one. The cause of death was asphyxia due to the combined effect of antemortem smothering and throttling which were sufficient to cause death in ordinary course of nature individually and collectively. As such, circumstance No. 2 stands proved.

Circumstance No. 3 & 4

3. The deceased was the second wife of PW24 / Mohd. Javed. His first wife PW11 / Hamida had been living in a different house with her daughters. The deceased used to drop her 1½ years old son with Hamida / FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 67/94 PW11 when she used to go out for shopping etc.

4. The deceased on 23.04.2012 at 5.00 / 5:30 p.m. had dropped her son with Hamida and gone for shopping. Her husband PW24 / Javed had left the house with his auto at 4.00 / 4:30 p.m. When the deceased did not come home and her son was become restless, PW11 and PW24 contacted the deceased on her mobile number of times. The deceased was using the mobile no. 9971668438 and Hamida and Javed were using the mobile nos. 9717107757 and 9810780416. When she last communicated with Javed, her location was at the mobile tower on the shop no. 41, Defence Colony Market A Block, New Delhi. The call started at 21:42:12 hrs., and lasted for 646 seconds at the location on 372, Lodhi Institutional area. During the period from 23:14:47 hrs. to 00:14:19 hrs., her mobile phone locations remained at Kailash Colony, National Park, Lajpat Nagar, Greater Kailash PartI, Andrews Ganj, Satya Niketan, Nanak Pura and Shanti Niketan, Moti Bagh.

53. Testimony of PW11 shows that she (PW11) was the first wife of Mohd. Javed / PW24. She was married to him about ten years ago. He was an auto driver. The deceased was the second wife of Mohd. Javed. She married him about six years ago. The deceased used to live with Javed at House No. D9/114, Sector16, Rohini. She had a son namely Junaid from Javed. PW11 used to live with her daughters in the house at Sector26, Rohini. PW11 has deposed that whenever the deceased used to go to the market or for some work, she used to drop her son at her house. On 23.04.2012 at about 5.00/5.30 p.m., she came at her house, dropped her son and told her that she was going to market for shopping. Her husband FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 68/94 Mohd. Javed had left the house with his auto at 4.00/4.30 p.m. PW24 corroborated this fact and stated that PW11/Hameeda is his first wife and the deceased was his second wife. He married her about 8/10 years ago and used to live with her in the house at Sector16, Rohini. His first wife used to live at Sector26, Rohini. He stated that the deceased used to leave her son Junaid with Hameeda whenever she used to go for shopping. On 23.04.2012 he left the house at Sector16, Rohini with his auto at about 04.00/5.30 p.m. and at about 07.00/7.30 p.m., he received a call from PW 11/Hameeda that the deceased has dropped Junaid at her house and gone for shopping at Lajpat Nagar market. PW24 denied that he was not happy from PW11. PW11 has also denied that she had hatred feeling towards the deceased and did not like her since her husband used to give more time to the deceased. Had PW11 been unhappy with the deceased, the deceased would not have left her son with her (PW11).

54. Testimony of PW11 shows that when the son of the deceased became restless and the deceased did not come home, she contacted PW 24 and the deceased on their mobiles number of times. PW24 corroborated this fact and stated that after receiving the call from PW11, he also contacted the deceased on her mobile, she told him that she was at Defence Colony and has hired a taxi from there for Rohini. It was around 09.30 p.m. She also gave him the taxi number as 9551. When PW11 informed him at 11.00/11.30 p.m. that the deceased has not come yet, he again contacted the deceased on her mobile and also asked PW11 to contact her on her mobile. He stated that sometimes it was found switched off and sometimes the receiver on the other side disconnected the phone.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 69/94 PW11 has deposed that at about 12.00 night, she had called the deceased on her mobile but it was picked by a person who told her that he has found the mobile phone from Noida. When she again called him and asked about the whereabouts of the deceased, he abused and disconnected the mobile.

55. In the instant case, the call details of the mobile number of the prosecutrix were collected. On an analysis, it was found that at that particular time i.e. at 21:42:12 hours, she had conversation with Javed. Her cell ID was at the tower on shop no. 41, Defence Colony Market A Block. The conversation lasted for 646 seconds. The cell ID where the call terminated was at the location 2425 Lodhi Institutional Area. There was no call on the mobile of the deceased till 23:14:47 when an SMS was delivered on the mobile. At that particular moment of time, her cell ID location was at A20, Kailash Colony. Thereafter, her cell was at the location 81, National Park, Lajpat Nagar, which remained from 11:28:15 p.m. to 12:00:22 a.m. At 12:14:19, there was another call on the cell phone of the deceased and as per the cell ID chart, the location was in the vicinity of Satya Niketan, Nanak Pura. The call terminated at Shanti Niketan, Moti Bagh. The call was made by Hamida/PW11 on the cell phone of the deceased which according to Hamida/PW11 was attended by some unknown person. The call details record goes to show that PW24 Javed and PW11 Hameeda had tried to contact the deceased on her mobile phone number of times.

56. It was pointed out by the learned defence counsel that there are contradictions as to the clothes and the slippers, deceased had been wearing when she left the house. It is true that in the missing report Ex.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 70/94 PW 13/A, PW24 had stated that the deceased, when left the house, was wearing salwar suit and red slippers but PW11 has stated that deceased when left the house was wearing black jeans pant and white and black top. It is pertinent to mention that PW24 had left before the deceased left the house. Further it has come in the testimony of PW24 that when he checked the house after lodging the missing report, he noticed that he had given the wrong descriptions of clothes to the police. The salwar suit was hanging on the khunti of the house and black slippers and purse were not in the house. PW43 has stated that when they came on the spot, the deceased was lying in semi naked condition with black and white top and her jeans pant was lying at a distance of about 1012 steps from her body. Looking into the above facts, no value can be pinned on the insignificant contradictions. As such circumstance no.3 & 4 stand proved.

Circumstance No. 5 & 6

5. The accused persons were arrested on a secret information on 13.05.2012 from the area of Moti Bagh with vehicle no. PB 01 9551 and the vehicle belonged to the accused Pardeep.

57. Testimonies of PW19 and PW37 show that on 13.05.2012 a secret information vide DD Ex.PW19/A was received in the office of SOS FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 71/94 Crime Branch that the accused persons involved in the present case were present in the area of Moti Bagh. PW37 has stated that he passed on the information to the senior officers and formed the raiding party. They went to the aforesaid place. They shared the information with 4 - 5 persons but none agreed to join. At about 4:15 p.m., they apprehended the accused Pardeep at the instance of the informer from the service road behind bus stand Moti Bagh who on interrogation disclosed of his involvement in this case. Pardeep also told them that the vehicle no. PB 01 9551 involved in the incident was standing in the parking. They seized the vehicle from the parking vide memo Ex.PW19/B. He correctly identified the taxi. PW37 has stated that the accused Pardeep took them on the third floor of Jeeta Ka Makan, Village Mochi Bagh, Nanak Pura and at his pointing out, they apprehended the accused Sikandar who also disclosed of his involvement in this case. They arrested both the accused persons vide arrest memos Ex.PW19/A and Ex.PW19/E and gave information of their arrest to their family members / relatives on phone and their relatives had also came in their office.

58. PW37 has stated that they brought the accused persons in the office of SOS Crime at about 8:30 p.m. and gave information to the IO at the police station Kalkaji. On the next day, they produced both the accused persons in the Court and handed over their custody to Insp. Ishwar Singh/PW43, on the orders of the Court. He stated that on the next day, he called the team of FSL, Rohini in the office of SOS Crime which inspected the car and collected six exhibits from the car which he sealed with the seal DKY and seized vide memo Ex.PW19/J. PW19 also deposed on the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 72/94 lines of PW37 and stated that PW37 had prepared a kalandra Ex.PW19/H regarding the arrest of the accused persons. He also proved the DD entries Ex.PW19/K to Ex.PW19/N regarding their arrivals and departures.

59. Ld. Counsels for the accused persons have argued with emphasis that the accused Pardeep was arrested on 13.05.2012 at 6:30 a.m. from his village Takht Garh, District Ropar, Punjab and the accused Sikander was lifted from Noida on 12.05.2012 but they have been shown arrested from the area of Moti Bagh on 13.05.2012 at about 4.30 p.m. Ld. Counsel referred the arrest memo of the accused Pardeep Ex.PW19/A to contend that it bears the signature of the father of the accused Pardeep. Had Pardeep been arrested from Moti Bagh, the signature of the father of the accused would have not been there in his arrest memo. Ld. Counsel also referred the RTI applications / replies and the testimonies of DW1 and DW2 who have stated that the police party had gone to the house of the accused Pardeep on 13.05.2012 in the morning and apprehended him from there.

60. It is true that the arrest memo of the accused Pardeep Ex.PW19/A bears the signature of father of Pardeep but it has come in the testimony of PW37 that the family members / relatives of the accused were informed of the arrest of the accused and his relatives had come in the office of SOS Crime team. That being the position, the possibility of obtaining the signature of the father of the accused Pardeep in the office as to the information of the arrest of the accused can not be ruled out. The record of the SOS i.e. DDs Ex.PW19/K to Ex.PW19/N and the kalandra Ex.PW19/H clearly show that the accused persons were arrested on a secret FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 73/94 information from the area of Moti Bagh on 13.05.2012 at about 4:25 p.m. and 4:55 p.m. respectively. Further the accused persons are not consistent in their defence. In the crossexamination of PW19, it was suggested that the accused persons had already been apprehended by the police of PS Kalkaji on the second day of incident but in the crossexamination of PW37, it was suggested that the accused Sikander was lifted from Sector 62, Noida on 12.05.2012 and accused Pardeep was arrested from his house at village Takht Garh, District Ropar, Punjab on 13.05.2012 at 6:30 a.m. In the cross examination of PW 21 it was suggested that the accused Sikander @ Soni was picked up from his native village Bhatoo near Takhtpur, PS Noorpur Beri, Ropar, Punjab. DW1 has stated that accused Sikander @ Soni was also with the police when they came in her house to arrest the accused Pardeep. Both DW1 and DW2 have stated that they did not make complaint when the accused Pardeep was apprehended from his village allegedly on 13.05.2012. In the instant case, the prosecution has examined PW5 and PW28. They have stated that on 16.05.2012, a police team had come from Delhi with the accused Pardeep Singh. They had first reported at the police station Noorpur Bedi and then proceeded to his house. No suggestions were given to PW5 and PW28 that the police party had come in the house of accused Pardeep on 13.05.2012 and apprehended him from there. PW 37 has denied that accused Pardeep was lifted from his house at village Takht Garh, PS Noorpur Bedi, Ropar, Punjab by Insp. Rajesh on 13.05.2012 at 6:30 a.m. He has stated that the police party had gone to the village of accused Pardeep but did not find him there. He denied that the accused Sikander was lifted on 12.05.2012 from Sector62, Noida. Both FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 74/94 PW 19 and PW 37 were crossexamined at length but they remained cogent and consistent in their testimonies.

61. Coming to the RTI replies, the defence did not call any one to prove the RTI replies. On perusal, it reveals that no police official went to Ropar, Punjab between 12.04.2012 to 15.04.2012. It does not find mention of the period of 13.05.2012, the day the accused persons were apprehended from the area of Moti Bagh. There is a DD entry of dated 13.05.2012 at 6:30 a.m. at the police station Noorpur Bedi regarding going of Inspector Rajesh SOS Crime but there is no reference in the DD that the accused Pardeep was arrested on 13.05.2012 from his village Takht Garh Noorpur Bedi. Since the family members of the accused had come to know of the involvement of the accused, the possibility of the father of the accused coming from Ropar to Delhi during the day time on 13.05.2012 cannot be ruled out. That being the position, I do not find force in the contention of the defence counsel that the accused persons were not arrested on 13.05.2012 at 4:25 and 4.55 p.m. from the area of Moti Bagh and they had already been arrested and shown arrested in this case. As regards contention of Ld. Defence counsel that landloard of the accused Sikander @ Soni was not examined nor the rent agreement of the place where the accused had been allegedly living on rent was not collected, it is true that neither the landlord was examined nor the rent agreement was collected but in the instant case there is enough circumstantial evidence to prove the complicity of the accused, as such it does not prove fatal to the case of the prosecution.

62. It was contended by the learned defence counsel that missing FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 75/94 report of the deceased Ex.PW13/A does not have reference of the vehicle number and the story, qua the deceased informing PW24 the taxi number which she had allegedly hired, is afterthought.

63. It is true that in the missing report, there is no reference of vehicle number but during investigation, before the arrest of the accused persons, PW24 had given the vehicle number which the deceased had boarded from Defence Colony prior to the arrest of the accused persons. PW24 had not given the complete number of the vehicle. He was the husband of the deceased. Due to the missing of the prosecutrix, he was perturbed and under shock. He searched for her here and there. Had the story qua the deceased informing PW24 the taxi number been afterthought, He would have given the complete number of the vehicle to the police. PW24 has categorically stated that he had asked the number of the taxi from the deceased which she had hired and she had given him the number 9551. It is significant that PW24 is an auto driver and it has come in his testimony that sometimes the passengers note down the vehicle number and ask for the papers before hiring the TSR. So the possibility of PW24 asking the deceased the vehicle number when she boarded the auto cannot be ruled out. It has also come in the testimony of PW43 that during investigation he had contacted number of transport authorities in the NCR but could not get any clue till the accused persons were arrested. In these circumstances, I do not find any force in the contention of the learned defence counsel that the story of deceased informing the vehicle number to PW24 is an afterthought to falsely implicate the accused persons.

64. Testimonies of PW2, PW6 and PW42 would show that the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 76/94 accused Sikander Singh was using the mobile numbers 9871895635 and 9871428765, the accused Pardeep was using the mobile numbers 9958936466 and 9899538198 and the deceased was using the mobile number 9971668438 at the relevant time. PW2, PW6 and PW42 have proved the call detail records i.e. Ex.PW6/D (9971668438), Ex.PW6/E (9958936466), Ex.PW6/B (9871895635), Ex.PW6/C (9871428765) and Ex.PW2/A (9899538198). Ex.PW6/B to Ex.PW6/E for the period from 23.04.2012 to 24.04.2012, cell ID charts Ex.PW2/D and Ex.PW6/L and the certificates of U/s 65B of the Indian Evidence Act Ex.PW6/K and Ex.PW2/C. Time Wise / location wise analysis of CDRs of victim and accused is as under : Date / Timings Location of the Cell Movements of Movements of (As per cell IDs covering accused Sikander accused Pardeep phone of the movements of mobile @ Soni having Singh having victim) of victim Payal mobile nos. mobile nos.

                  (9971668438)              9871895635   and  9958936466   and 
                                            9871428765         9899538198
23.04.2012          20351 (call started)      • At   22:09:41   hrs.     •From 22:03:33 
                    Defence   Colony          the   location   of        hrs. to 22:12:58 
1:42:12   hrs   (a  Market, BlockA, New      mobile              no.    hrs., the location 
call   of   646  Delhi                        9871895635                 of mobile no. 
sec.)                                         remains at cell ID         9958936466 
And there is no  372 (call terminated)        no.   372   i.e.   Lodi    remains at cell ID 
call   on   this  2425,              Lodi    Institutional  Area,       no. 372 i.e. Lodi 
mobile   till  Institutional   Area,          New Delhi                  Institutional Area, 
23:14:47            New Delhi3               • At   21:58:32,   the     New 
                                              location of mobile 
                                              no.   9871428765 
                                              remains at cell ID 
                                              no.   372   i.e.   Lodi 
                                              Institutional  Area, 

FIR No. : 119/12
PS : Kalkaji
State Vs. Sikander @ Soni and Anr.                                           Page No. 77/94
                                                  New Delhi 
                                                 •   At 22:47:51 hrs. 
                                                 the   location   of 
                                                 mobile             no. 
                                                 9871428765 
                                                 shows   at   cell   ID 
                                                 no.   86222   i.e. 
                                                 Andrews   Ganj, 
                                                 ND
23.04.2012                  6312          No   calls   at   this  No calls at this 
                    A20, Kailash Colony  particular time         particular time
23:14:47 hrs        (Idea showroom) New 
                    Delhi
23.04.2012                   873           No   calls   at   this  No   calls   at   this 
                    81,   National   Park  particular time         particular time
23:28:15 hrs        Lajpat   Nagar   New 
                    Delhi
23.04.2012                   873           No   calls   at   this  No   calls   at   this 
                    81,   National   Park  particular time         particular time
23:28:22 hrs        Lajpat   Nagar   New 
                    Delhi
23.04.2012                   873           No   calls   at   this  No   calls   at   this 
                    81,   National   Park  particular time         particular time
23:28:28 hrs        Lajpat   Nagar   New 
                    Delhi
23.04.2012          873 (call started)           •At   23:29:11   hrs.  No   calls   at   this 
                    81,   National   Park        the   location   of  particular time
23:28:50 hrs        Lajpat   Nagar   New         mobile              no. 
                    Delhi                        9871428765 
                    54141               (call    remains at cell ID 
                    terminated)   B54,   A,     no.   54141   i.e.   B
                    Greater   Kailash   Part    54,   A   Greater 
                    I, New Delhi                 Kailash   PartI, 
                                                 New Delhi 
23.04.2012                   873           • At   23:29:11   hrs.  No   calls   at   this

81, National Park the location of particular time 23:29:04 hrs Lajpat Nagar New mobile no.



FIR No. : 119/12
PS : Kalkaji
State Vs. Sikander @ Soni and Anr.                                           Page No. 78/94
                     Delhi                     9871428765 
                                              remains at cell ID 
                                              no.   54141   i.e.   B
                                              54,   A   Greater 
                                              Kailash   PartI, 
                                              New Delhi 
24.04.2012                  49084          No   calls   at   this  No   calls   at   this 
                    National Park, Lajpat  particular time         particular time
00:00:22 hrs.       Nagar, New Delhi
24.04.2012                  49084          No   calls   at   this  No   calls   at   this 
                    National Park, Lajpat  particular time         particular time
00:01:30 hrs.       Nagar, New Delhi
24.04.2012                  49084          No   calls   at   this  No   calls   at   this 
                    National Park, Lajpat  particular time         particular time
00:01:34 hrs.       Nagar, New Delhi
24.04.2012            8622 (call started)  No   calls   at   this  No   calls   at   this 
                       Andrews Ganj        particular time         particular time
00:01:55 hrs.       8623 (call terminated)
                    Andrews Ganj
24.04.2012           32047 (call started)  No   calls   at   this  No   calls   at   this 
                    2/5, Sdhanti Niketan,  particular time         particular time
00:10:13 hrs.            Moti Bagh 
                    972 (call terminated) 
                    Satya Niketan, Nanak 
                          Pura, N.D.
                    National Park, Lajpat 
                    Nagar, New Delhi
24.04.2012                   972          No   calls   at   this  No   calls   at   this 
                    Satya Niketan, Nanak  particular time         particular time
00:11:11 hrs.       Pura, N.D.
24.04.2012                   972          No   calls   at   this  No   calls   at   this 
                    Satya Niketan, Nanak  particular time         particular time
00:11:21 hrs.       Pura, N.D.
24.04.2012             971 (call started)  No   calls   at   this  No   calls   at   this 
                     Satya Niketan, Nanak  particular time         particular time
00:14:19 hrs.             Pura, N.D.


FIR No. : 119/12
PS : Kalkaji
State Vs. Sikander @ Soni and Anr.                                       Page No. 79/94
                     32047 (Call 
                    terminated) 
                    2/5, Shanti Niketan, 
                    Moti Bagh.

65. The analysis revealed that the route of the cell phone of the deceased was the same as that of the locations/route of the mobile phones of the accused persons at the relevant time. The accused persons did not dispute their mobile numbers, the call details records and cell ID charts. The CDRs and the location charts corroborate the testimonies of PW11 and PW24 regarding their calling the deceased on her mobile when she did not return home.

66. From the above discussions and the testimonies of the aforesaid witnesses, it is proved that the accused persons were arrested on a secret information on 13.05.2012 from the area of Moti Bagh with Taxi no. PB 01 9551 which belonged to the accused Pardeep and they were continuously present with the deceased at the scene of crime i.e. from Defence Colony market to Nehru Place etc. As such circumstance no. 5 & 6 stand proved.

Circumstance No. 7 , 8 and 9

7. Purse and slippers of the deceased were recovered from the bushes near Metro Station, Nehru Place at the instance of the accused Sikander pursuant to his disclosure statement.

8. Ear ring and a ring of the deceased were recovered at the instance of the accused Pardeep from his house at village Takhtpur, Noorpur Bedi, FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 80/94 Punjab on 16.05.2012.

9. The ear ring recovered at the instance of accused Pardeep forensically matched with the ear rings the deceased had been wearing when her dead body was recovered during forensic examination. One more similar ear ring was handed over by the jewller / PW8 which the deceased had left with him since she was short of money. That ear ring was also matched with the ear ring of the deceased during forensic examination.

67. PW29 and PW43 have deposed that both the accused persons were produced in the Court at Saket by PW37 and with the permission of the Court, PW43 arrested both the accused persons vide memo Ex.PW21/A (Sikander) and Ex.PW21/B (Pardeep). They were interrogated and they made disclosure statements Ex.PW21/C and Ex.PW21/D. Their police custody remand was taken. They, in pursuant to the disclosure statements, took them to the place where they had thrown the dead body of the deceased. Accused Sikander got recovered pair of slippers and a purse from the bushes near a park situated near Erose Tower, Nehru Place vide memo Ex.PW21/E. The purse was found to contain an acknowledgement of Aadhar card Ex.PW21/FF in the name of the deceased. Both the articles were subjected to the TIP and the testimonies of PW24 and PW25 show that PW24 correctly identified both the articles in the TIP proceedings.

68. It is true that these type of articles are easily available in the market but in the instant case, PW24 has given the explanation that since they were being used by the deceased, he identified them. The explanation given by PW24 appears to be plausible and carries weight. It is true that no public person was joined when the recovery was effected but perusal of the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 81/94 testimonies of PW29 and PW43 would show that these articles were recovered from the bushes which were of two feet of height. The area was not accessible to the general public and the factum of throwing the above articles was in the exclusive knowledge of the accused Sikander. Further joining public witness is a rule of caution and not the rule of law. In Delias Christopher v. Customs 2004 (3) JCC 147, it was held that "it is true that public witnesses inspire more confidence and enable the court to return findings with added confidence but the law is well settled that a conviction may be based on the testimonies of official witnesses even." In the instant case, the testimonies of official witnesses are cogent and consistent. Nothing can be imputed from their testimonies that they had animus against the accused persons or they were interested in their false implication.

69. It is also pertinent to mention that when the car was seized by the police, it was got inspected from the FSL team of Rohini and from the car, exhibits were taken. As per the FSL report Ex.PW30/E the exhibits were found to contain blood spots and hair strands on the seat. The accused Pardeep offered no explanation how the blood marks came on the seat.70.

70. It has also come in the testimonies of PW5, PW29 and PW43 that the accused Pardeep, pursuant to his disclosure statement, took them to his house at village Takhtpur, PS Noorpur Bedi, District Ropar, Punjab from where he produced an ear ring and a ring belonging to the deceased from the almirah. PW29 and PW43 have stated that the accused did not use key to open the almirah. PW28 has stated that that an entry in the Rojnamcha was made when the police party went to the house of the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 82/94 accused on 16.05.2012. The seizure memo Ex.PW5/B bears the signature of all the witnesses. They have categorically denied that no recovery was effected from the possession or at the instance of the accused Pardeep.

71. It has come in the testimony of PW9, who had taken the dead body for the postmortem, that the duty constable of AIIMS had given him the belongings of the deceased which included two pairs of ear rings. The photographs Ex.PW4/2 and Ex. PW 4/DA also show that the deceased was wearing the two pairs of ear rings. During investigation, PW24 had told the police that the prosecutrix / deceased had purchased the ear rings from PW8 who had given his visiting card Ex.PW8/B. PW8 identified the visiting card and stated that he had prepared three pairs of ear rings for the deceased. Since the deceased did not pay him the full amount, he retained one ear ring with him and asked her to take after making the balance payment. The card Ex. PW 8/B also finds mention of the details of the accounts in the hand of PW8. PW8 has stated that he handed over the ear ring to the police vide memo Ex.PW8/A which fact has also come in the testimonies of PW24, PW29 and PW43. In the instant case, all the ear rings were sent to the FSL for analysis and as per the report Ex.PW33/A, they were found similar in respect of their design, pattern of closing, size, weight and metal.

72. It was contended by Ld. Defence Counsel that had there been intention of the accused Pardeep to retain the above articles, he would have also taken the other ear rings of the deceased which she was wearing at the time of alleged incident. Ld. Counsel stated that it is a case of planted recovery and infact no recovery was effected from him or at his instance. I FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 83/94 do not agree with this contention. The testimony of PW24 shows that the deceased had five ear rings with her. As evident from the photographs Ex. PW 4/2 and Ex. PW 4/DA, at the time of alleged incident, she was wearing four ear rings. Thus, keeping one ear ring in the purse by the deceased can not be ruled out. It is quite possible that the accused, in order to make the evidence disappear, would have taken the ear ring with him which he got recovered from the almirah of his house. As regards joining of parents of the accused and the villagers at the time of recovery, it is true that the police party should have joined them while effecting the recovery but non joining of public persons as held in the case of Delias Christopher v. Customs(supra) is not fatal to the case of prosecution. In the instant case, the case property was produced in the Court and was shown to the witnesses. They correctly identified the case property i.e. the ear rings Ex.P2 to Ex.P5, Locket Ex.P7, Finger ring Ex.P8 and nose ring Ex.P9, ear ring produced by PW8 Ex.P1, ear ring recovered at the instance of the accused Ex.P6, purse Ex.P10 and floaters Ex.P11. As regards the contention that the ear rings are easily available in the market, testimony of PW8 shows that since he had prepared the ear ring for the deceased, he identified it. Further, the forensic report Ex. PW 33/A shows that they were similar in respect of their design, pattern of closing, size, weight and metal.

73. From the testimonies of above witnesses and the documents, circumstance no. 7, 8 and 9 stand proved.

Circumstance No. 10

DNA profiles generated from the blood samples of the accused persons were observed in the uterine swab and vaginal swab of FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 84/94 the prosecutrix on DNA finger printing analysis. DNA profile generated from the source of strands of hair on the body of the deceased was found to be human male in origin and consistent with the profile of Pardeep's hair and blood stained gauze.

74. Testimonies of PW3, PW9, PW29 and PW43 show that from the spot, blood in gauze, blood stained road concrete, road concrete control sample, hairs on dead body and jeans pant of the deceased were recovered and seized vide memos Ex.PW29/B, Ex.PW29/C, Ex.PW29/D, Ex.PW29/E and Ex.PW29/A. PW9 has stated that the Duty constable had given him the articles of the deceased i.e. four pairs of ear rings, one nose pin, one ring and one locket with black thread, which he handed over to the IO vide memo Ex.PW9/A. After the postmortem, the doctor handed over an envelope containing the blood in gauze of the deceased, a pullanda containing clothes of the deceased, two plastic jars containing finger nails of left hand and right hand of deceased, a plastic jar containing a single hair recovered from the pubic area of deceased, two plastic jars containing anal swab, two plastic jars containing the vaginal swab, one plastic jar containing uterine swab, one plastic jar containing scalp hair, one plastic jar containing swab from oral cavity, one plastic jar containing oral swab, one plastic jar containing black thread and a box containing viscera of the deceased alongwith four sample seals. PW29 had prepared the seizure memo to that effect vide memo Ex.PW29/G. The FSL team also handed over the exhibits seized from the car i.e. blood stained cuttings from the back seat, cuttings of the back seat having dirty stains, strands of hair FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 85/94 found on the back seat, strands of hair found on the mat lying before the back seat, cutting of drivers seat having dirty strains., cuttings of front seat left to drivers seat having dirty stains, which were seized vide memo Ex.PW21/P.

75. In the instant case, both the accused person were also got medically examined at AIIMS vide their MLCs Ex.PW17/A and Ex.PW17/B and on their examination, they were found capable of performing sexual intercourse under normal circumstances. Their blood in gauze, pubic hairs and scalp hairs were taken and handed over to PW17 Ct. Ranjeet and PW21 HC Bhagwan Singh who handed over to the IO vide memo Ex.PW17/B. Testimonies of PW43 and MHC(M) PW22 and PW35 show that the exhibits were deposited in the malkhana from where they were sent to the forensic department AIIMS, FSL Rohini and CFSL Lodhi Road. PW18 has stated that Insp. Ishwar Singh had taken both the accused persons to AIIMS where their blood samples were taken in the Department of Forensic Medicines. The testimonies of the forensic experts i.e. PW30, PW31, PW32, PW33, PW36, PW41 and PW15 would show that when they received the samples, their seals were intact and they also tallied the seals with the sample seals. In this case, prosecution has examined all the link witnesses to rule out the possibility of tampering with the case property. They have categorically stated that the exhibits during their possession were not tampered with and their seals were intact. The defence counsel failed to demonstrate how the samples were manipulated as alleged by the accused persons.

76. As per the report Ex.PW30/A, blood was detected on the FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 86/94 concrete material, of human origin. As per the report Ex.PW32/A, blood was detected on the Ex.1 (blood in gauze of the deceased), Ex 7a (One black and white printed full sleeved lady's top having brown stains), Ex. 7b (one light brown coloured sleevless lady's top with golden having cut marks and brown stains), Ex. 7c (one Brassiere having cut mark), Ex. 10 (Scalp hair of the deceased), Ex. 20 (blood in gauze of the accused Sikander Soni) and Ex. 23 (blood in gauze of the accused Pardeep Singh). DNA profile generated from the source of Ex.7a(Lady's top), Ex. 7b (Lady's Top), Ex. 7c (Brassiere) and Ex. 10 (Scalp Hair of the deceased) were found to be human female in origin and consistent with the DNA profile of deceased (Source of Ex.1, Blood Stained Gauze). DNA profile generated from the Source of Ex. 4 (few strands of hair stuck with the dead body of the deceased) was found to be human male in origin and consistent with the DNA profile of Pardeep Singh (Source of exhibits 22: Hair and 23: Blood stained gauze). DNA profile of Sikander (Source of exhibit19: Hair and exhibit20: Blood stained Gauze) was generated. As per the serological report Ex.PW41/A, the exhibits 7a, 7b, 7c, 20 contained the species of human origin B Group, Exhibit 10 and 23 contained the species of human origin with no reaction for ABO Group.

77. As per the report of PW15, department of forensic medicines of Toxicology Ex.PW15/C, fresh blood samples of both the accused persons were taken on 18.05.2012 in the department of FMT. The DNA profile obtained from the exhibits (uterine swab Ex.448, vaginal swab Ex.449, vaginal swab Ex.450, anal swab Ex.451 showed mix profiles, FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 87/94 sharing DNA profile from Ex.PW447 (blood stained gauze of the deceased), Ex.453 (finger nails of left hand of the deceased), Ex.454 (finger nails of the right hand of the deceased), Ex.455 (fresh blood sample of the accused Sikander) and Ex.456 (fresh blood sample of the coaccused Pardeep). PW15 has stated that based on the observations, she observed that the DNA profile from Ex.455 (fresh blood sample of Sikander) and Ex.456 (fresh blood sample of Pardeep) were found in the Ex.448 (uterine swab of the deceased), Ex.449 (vaginal swab of the deceased) and Ex.450 (vaginal swab of the deceased).

78. On a conjoint reading of the postmortem report, forensic laboratory reports and the report Ex. PW 32/A and the report Ex.PW15/C, testimonies of PW10, PW34, PW15, PW30, PW31, PW33, PW36 and PW41 and the call details records and analysis as discussed in preceding paras, it stands proved that the prosecutrix had boarded the taxi of the accused Pardeep from Defence Colony market for going to Rohini but he alongwith the accused Sikander @ Soni, instead of taking her there, took her in the area of Lodhi Institutional Area where they gang raped the prosecutrix and strangulated her to death in the said car. They thereafter threw the dead body of the deceased and her belongings near Metro Pillar at Nehru Place so as to cause the disappearance of evidence. The testimony of PW10 and the reports clearly prove that the complicity of both the accused persons in the commission of the alleged offences.

Circumstance No. 11

Motive of the gang rape and murder.

FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 88/94

79. In the case of Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420, it was held that:

"Sometimes motive play an important role and becomes a compelling force to commit a crime and therefore, motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the findings of the court that the accused was guilty for the offence charged with. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime."

80. Facts and circumstances of the present case as elaborated above, also clearly establish the motive of the accused persons to commit the offences, they are charged. They subjected the prosecutrix to gang rape, strangulated her to death and thereafter threw her body and her belongings at Nehru Place to destroy the evidence.

81. As regards delay, it has come in the testimony of PW24 that he and Hamida / PW11 tried to contact the prosecutrix number of times but most of the time, her phone was switched off. He searched for the prosecutrix at Defence Colony market. He also went to the house of the brother of the prosecutrix but could not get any clue. He thereafter went to the police station K.N. Katju Marg, Rohini at about 8:30 p.m. on FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 89/94 24.04.2012 and lodged the missing report of the prosecutrix. His testimony clearly shows that he first of all on his own level, searched for the prosecutrix but when he did not get any clue, he lodged the missing report. Testimony of PW43 shows that when they recovered the dead body, they did not find any person to identify the dead body. He also checked on the zip net and from the nearby police stations but did not get any response till evening. At late night, when he was checking the zip net, he found an information about the missing lady description of which was matching with the dead body. He thereafter contacted PW24. It is noteworthy that the instant case was registered immediately after the dead body was recovered.

82. It was further contended by Ld. Defence Counsel that on 22.04.2012, a quarrel had taken place between the accused Pardeep and the owner of Gupta Dhabha at Nehru Place. The police had brought the accused Pardeep in the police station where heated arguments took place between them. Accused Sikander used to come to meet the accused Pardeep. He also went to the police station where both of them were detained and released after late hours. From 26.04.2012 to 30.04.2012, they were called several times and were made to sit for long. The police officials used to use their vehicles for their personal use and they have falsely implicated the accused persons at the instance of the owner of Gupta Dhabha.

83. On a careful scrutiny of the evidence, I find this contention sans merit. No evidence of this sort was led by the accused that a quarrel had taken place between the accused Pardeep and the owner of Gupta FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 90/94 Dhabha on 22.04.2012. The defence taken during the crossexamination of PW29 and PW43 is also contradictory. Till 13.05.2012, the investigating agency did not have any clue of this case. Her vaginal swab and uterine swab was taken by the doctor on 25.04.2012 itself. The expert reports, the FSL reports, call detail records and cell ID charts clearly incriminate the accused persons and lead to irresistible conclusion that they had gang raped the prosecutrix, committed her murder and then threw her body at Nehru Place as to cause the disappearance of evidence. There was also recovery of incriminating material at the instance of the accused persons in pursuant to their disclosure statements which are admissible in evidence in view of Section 25 and 27 of the Indian Evidence Act. To sum up

84. The prosecution has proved that the deceased was 24 to 26 years of age. She was the second wife of Mohd. Javed / PW24. His first wife Hamida / PW11 used to live in a different house with her daughters. The prosecutrix / deceased had a son of 1½ years of age. She used to drop her son in the house of PW11 when she used to go for shopping and other places. On 23.04.2012 at about 5:00 / 5:30 p.m., she had dropped her son in the house of PW11 and gone for shopping. When she did not come back, PW11 and PW24 called her number of times on her mobile. Her husband / Javed / PW24 on the next day at about 8:30 p.m., lodged her missing report at the police station K.N. Katju Marg. The body of the deceased was recovered on 24.04.2012 at about 7:30 a.m. from the Metro Pillar no. 127, behind MTNL Office, Nehru Place in semi naked condition. There were injury marks all around her face. A black colour jeans pant with its zip FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 91/94 broken was also lying at a distance of 10 steps away from her body. The postmortem of the deceased was conducted. The autopsy surgeon opined the cause of death as asphyxia due to combined effect of ante mortem smothering and throttling, which were sufficient in the ordinary course of nature individually as well as collectively. He also conducted the examinations of genital organ on which he found her labia contused. He also found whitish liquid material in the vagina and uterine cavity. He gave findings suggestive of sexual assault. According to him, the pattern of injuries suggested strangulation before death. Her vaginal swab and uterine swab were collected and sent to the laboratory. The deceased was wearing two pairs of ear rings at the time of her death. She had purchased the ear rings from PW8. Since she could not make the full payment to PW8, he retained one ear ring with him. On 13.05.2012, both the accused persons were arrested from the area of Moti Bagh. They disclosed of their involvements in this case. Pursuant to their disclosure statements, they took the police party to the place where they had thrown the dead body. Accused Sikander got recovered the slippers and the purse of the deceased which had the slip of the Aadhar card in the name of the deceased. The bag and slipper were subjected to TIP and PW24 identified the same being that of the deceased. Accused Pardeep took the police party to his village Takhtpur, PS Noorpur Bedi, District Ropar, Punjab and produced one ear ring and a ring from the almirah which belonged to the deceased. All the ear rings on forensic examination were found to be of similar in respect of there design, pattern of closing, seize weight and metal. The accused persons were got medically examined at AIIMS for their potency. They FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 92/94 were found capable of performing sexual intercourse under normal circumstances. Their blood samples, pubic hair and scalp hair samples were taken. The exhibits of the accused and that of the prosecutrix were sent to laboratory. The exhibits lifted from the spot were also sent to the laboratory. On forensic examination vide report Ex.PW32/A, DNA profile generated from the Source of exhibits4 (few strands of hair) was found to be human male in origin and consistent with the DNA profile of Pardeep Singh (Source of exhibits22: Hair and 23: Blood stained gauze). According to PW15, the DNA profiles from Ex.455 i.e. fresh blood sample of accused Sikander and Ex.456 i.e. fresh blood sample of accused Pardeep were found in the exhibits viz., Ex.448 (Uterine Swab), Ex.449 (Vaginal Swab) and 450 (Vaginal Swab) of the deceased. The call details record and cell ID charts of the mobile of accused persons and the deceased revealed that the route of the cell phone of the deceased was same as that of the locations of the mobile phones of the accused persons at the crucial timings. All the facts and circumstances clearly prove the complicity of the accused persons in the commission of above offences beyond reasonable doubt.

Conclusion:

85. Having appreciated the evidence adduced by prosecution including scientific and medical evidence and testimonies of the witnesses examined, in the circumstances described herein above, I am of the view that the prosecution has unerringly been able to establish the complete chain of circumstances and has also completely ruled out any other hypothesis except the guilt of accused persons for the offences they have FIR No. : 119/12 PS : Kalkaji State Vs. Sikander @ Soni and Anr. Page No. 93/94 been subjected to trial. The aforementioned chain of evidence is not only complete but also conclusive in nature and tendency as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The facts and circumstances brought on record by prosecution clearly establish that it were the accused persons and only the accused persons who gang raped the deceased, strangulated her to death and threw her body at Nehru Place causing the evidence of the offence to disappear with the intention to screen themselves from the legal punishment which are the foremost ingredients of the offences punishable u/s 376(2)(g), 302/201 r/w Section 34 IPC.

86. I, therefore, hold both the accused persons guilty of the offences punishable under section 376(2)(g), 302/201 r/w section 34 IPC and convict him thereunder.

87. Let the accused persons be heard on the point of sentence on the date as fixed by the Court.



Announced in the open  
court today i.e. 06.05.2017                              ( Sanjiv Jain)
                                                  ASJSpl. FTC / Saket Courts
                                                            New Delhi




FIR No. : 119/12
PS : Kalkaji
State Vs. Sikander @ Soni and Anr.                                         Page No. 94/94

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State vs . Sikander @ Soni And Anr. Page No. 1/94 on 6 May, 2017