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48.In the present case also, therefore, no benefit of doubt can be given to the accused in view of the absence of the matching of the human blood on the weapon recovered and that of the deceased and since the accused has failed to explain as to how he was in the knowledge of the last known residence of the deceased and the existence of the weapon therein, the said discovery, an incriminating fact, will have to be read against him. Further though the said recovery and discovery of residential premises and blood stained articles is being assailed on behalf of the defence on the ground that that there was no public witness joined in the search of the said premises, it is to FIR No. 592/07 PS Mehrauli 36 of 93 be taken note of that PW4, the landlord of the deceased, Rambir has categorically deposed that on 24.09.2007, the police party alongwith the accused had come to premises H.No. 477, village Saidulahjab, Delhi wherein one of the rooms on the first floor had been rented out to the deceased by PW4. He has particularly deposed that on this day one person namely Bablu was called by the police officials to unlock the room of the deceased Bipin and that the said Bablu had prepared a duplicate key and had opened the room and thereafter the police had searched the said room. No doubt in his cross­examination, he has deposed that the police had not allowed him to enter the said room, he has been categorical that it was on this day that the police alongwith the accused had come first time to the tenanted premises of the deceased and that the room of the deceased was got opened by the police by calling one Bablu. This person Bablu has also stepped into the witness box and has been examined as PW12. He has inter alia deposed that he makes locks and keys and that he was called by the police on 24.09.2007 at H.No. 477, Saidulahjab and that he had opened a room on the first floor of the said premises by preparing a duplicate key of the same. At this stage, it will also be relevant to mention herein that one scientific expert from FSL, Rohini PW7 Naresh Kumar has also inter alia deposed that on 24.09.2007 he was requested by the police officials to reach the scene of crime i.e. a room in H.No. 477, Saidulahjab, PS FIR No. 592/07 PS Mehrauli 37 of 93 Mehrauli and that he infact had done so and had thereafter collected from the said room, blood stains from the floor, from the table and blood stained towel, a portion of gadda, bedsheets, suit cover, a weapon of offence and that after examining the same, had given detailed reports Ex.PW7/B and PW7/C. The aforementioned three witnesses cannot at all be stated to be interested witnesses who would have deposed falsely only at the instance of the agency. Further the mere fact that the landlord was not allowed to enter the room of the deceased cannot be a ground to discard the testimony of either the landlord or that of the remaining prosecution witnesses including the FSL expert that the accused and the police party had infact come to the said room on 24.09.2007 and that the said room was inspected by the crime team. The contention of the Ld. APP that since the defence counsel had himself chosen not to ask the Investigating Officer the reasons for not allowing the landlord to enter the room, he cannot at the stage of final arguments ascribe malafide intentions to the IO in this regard, cannot be brushed aside and has much merit. At this stage, it will also be relevant to take note of another contention of the Ld. Defence counsel namely that PW4 has deposed in his examination in chief itself that the police had come to his house at about 01.30­02.00 PM which is contrary to the version of the prosecution that they had reached the said house only in the evening after the arrest of the accused. The contention of the Ld. Defence counsel is that FIR No. 592/07 PS Mehrauli 38 of 93 since the ACP Kukreti PW30 has consistently stuck to a stand that the accused was arrested at about 04.00 PM and that his disclosure was recorded only at about 04.30 PM, the premises of the deceased could not have been discovered pursuant to the disclosure of the accused, if the testimony of PW4 about the timing of the coming of the police party and the accused to his premises is to be accepted and that therefore the asserted discovery of the premises of the deceased cannot be taken to fall within the purview of section 27 of the Indian Evidence Act.

53.The next very relevant piece of evidence which incriminates the accused is the CD Ex.PW11/1 placed on record by the prosecution. As per the evidence placed on record, this CD contains the images of the persons who had accessed the ATM machine at the Saket Branch of the ICICI Bank on 16.08.2007. As per the deposition of PW13 Inspector Kukreti, the main investigating officer, the said CD was collected by SI Dinesh from Tanuj Khosla, Bank Manager, ICICI Bank, Panchsheel Park on 17.09.2007. It is a matter of record that both SI Dinesh and Tanuj Khosla could not be examined during trial, for before they could be produced in the witness box, the police official SI Dinesh Kumar expired and Tanuj Khosla left India in the year 2008. However the seizure memo vide which the said CD was collected has been proved on record by HC Virender whose signature appear on the said seizure memo, Ex.PW11/B (it appears that inadvertently, Ld. Predecessor of this court has numbered two witnesses­ Anil Kumar Sachdeva and Punit Sharma as PW11 and therefore documents produced by both of them have been exhibited as PW11/A and PW11/B). PW19 HC FIR No. 592/07 PS Mehrauli 45 of 93 Virender whose signature appear on the seizure memo of the CD has inter alia deposed that on 17.09.2007, he had accompanied SI Dinesh to the ICICI Bank, Panchsheel Park branch where Manager Tanuj Khosla had handed over a CD and after the same was played to them, the CD was taken into possession. Further one PW11 Punit Sharma, Home Loan Manager in ICICI Bank, Panchsheel Park branch has been produced in the witness box and this witness has inter alia deposed that on 17.09.2007 Tanuj Khosla was working as Bank Manager in ICICI Bank, Panchsheel Park branch and that in his presence on 17.09.2007, SI Dinesh Kumar had come to the said branch and had collected the account statement of one Bipin Kumar from Tanuj Khosla and that Tanuj Khosla had also handed over SI Dinesh Kumar one CD containing video recording of ATM belonging to ICICI Bank ATM, Saket. The witness PW11 Punit Sharma has identified the signatures of Tanuj Khosla at point A on the seizure memo. The CD in question was also played in the presence of this witness and he has stated that the images of the said CD belong to Saket ATM of ICICI Bank. In the considered opinion of this court, even in the absence of the IO and Tanuj Khosla, the deposition of HC Virender and PW11 Punit Sharma do prove that on 17.09.2007, SI Dinesh alongwith HC Virender had gone to ICICI Bank, Panchsheel Park Branch and that he was handed over one CD containing the ATM clippings and that the said CD as per the seizure memo was kept FIR No. 592/07 PS Mehrauli 46 of 93 in a plastic box and then sealed in a cloth pullanda. It will be relevant to mention herein that though initially Ld. Defence counsel Sh. Ali had sought to contend that since the CD produced in the court was never produced in a plastic box, the CD produced in the court was not the one that was handed over to the IO but subsequently when it was pointed out to him by this court that the perusal of the ordersheets dated 29.05.2008 to 24.09.2008 shows the said CD in a plastic cover/box was produced in the court on 24.09.2008, the Ld. Counsel submitted that since he had not been representing the accused during the said period, he was not aware of the said proceedings. What the said record reveals is that the accused after being supplied the copy of the chargesheet had taken a stand that he be also supplied with a copy of the CD which the prosecution was relying upon to state that it contained the image of the accused using the ATM card of the deceased. Pursuant to the said application, the said CD was infact produced in a cloth pullanda before one of the Ld. Predecessor of this court on 24.09.2008 on which the particulars of the FIR had been found written and the same on opening was found to contain a CD in a cover on which words 'E­30, Saket files' was found inscribed. Thereafter vide orders of the Ld. Predecessor of this court, the CD was sent to FSL, Rohini with directions that a copy of the said CD be prepared and thereafter a copy of the said CD was infact supplied to the accused. In view thereof, the contention of the FIR No. 592/07 PS Mehrauli 47 of 93 Ld. Defence counsel that the CD in question was not the one that was given to the IO has no merit whatsoever. There are one another contention made with respect to the identity of the CD in question, namely that though the CD in question has been referred in the chargesheet and in the deposition of PW11 as a CD containing videography, the CD in question on being played in court was not found containing any videography but only still images and therefore the CD played in court could not be the one seized by SI Dinesh. With respect to this contention, it is relevant to note that PW35 has clarified that in banking practices, the terminology video clipping is used for both the still photography taken by the internal camera and the photography taken by the CCTV camera. In view of the said clarification on record, the contention made by the Ld. Defence counsel in this regard has no merit.

59.In the present case, as narrated hereinabove, not only has the accused falsely denied the using of the mobile number 9313363224, and the existence of the landline number 05946266495 at the residence of his parents in his native village, he has also falsely stated before this court that he never knew the deceased or a person called Bahadur Singh. It is a matter of record that in reply to question no. 45 during the recording of his statement u/s 313 Cr.PC on 15.05.2012, he had taken a stand that he did not even know the deceased however when the additional statement of this accused was recorded on 22.03.2013 (the said additional statement was recorded after it had come to the notice of this court that certain incriminating evidence had not been put to the accused during the recording of his statement on 15.05.2012) and the deposition of PW5 Sanjeev Anand was put to him as per which both he and the deceased were well acquainted with each other and that both of them had worked together in his restaurant, FIR No. 592/07 PS Mehrauli 65 of 93 the accused did admit that he was acquainted with the deceased but took a stand that he had never met him once he had left the said job. What the aforementioned record reveals is that the accused had first chosen to give a false reply that he never knew the deceased and it is only when he was put the deposition of PW5, did he chose to admit that he did know the deceased. The accused also has also taken another false plea in his statement recorded u/s 313 Cr.PC and that is with regard to his relationship with one Bahadur Singh, who as per the version of the prosecution was the chacha of the accused and had allowed the accused to stay with him in his tenanted premises at H.No. 615, Village Saidulahjab, from which premises the accused had got recovered an amount of Rs.60,000/­ and two certificates of BHEL belonging to the deceased. As per the deposition of the main investigating official PW30 Inspector Kukreti, the accused after his apprehension on 24.09.2007 had after leading the police party to the tenanted premises of the deceased, had also then led the police team to his own residential premises i.e. H.No. 615, Saidulahjab and from a briefcase kept in the said premises, had got recovered Rs.60,000/­ and two BHEL certificates belonging to the deceased. The said recovery, as per the version of the investigating official, had taken place in the presence of the landlord of the said premises, one Sukhvir Singh. The said landlord has also been produced in the witness box by the prosecution and has been FIR No. 592/07 PS Mehrauli 66 of 93 examined as PW6 and in his deposition, he has supported the version of the investigating agency to the extent that in his presence the accused had got recovered Rs.60,000/­ from a briefcase in the aforementioned premises. According to the deposition of PW6, he had given one room in H.No. 615 to one Bahadur Singh and that he had seen the accused coming to the premises of Bahadur Singh often and had asked Bahadur Singh about the accused and he was informed that Kundan is the relative of Bahadur Singh and had come to stay with him for sometime. Now, the said recovery is being assailed on behalf of the defence by contending first of all that the prosecution has not at all proved that the accused was related in any manner to Bahadur Singh or that Bahadur Singh was a tenant of Sukhvir Singh or that the alleged amount recovered belonged to the deceased only. It has also been pointed out by the defence counsel that PW6 has nowhere deposed about the recovery of any BHEL certificates and that the said recovery is also not infact mentioned in the statements u/s 161 Cr.PC of the two police officials, SI Dinesh Chander and HC Virender Kumar who had witnessed the said asserted seizure and that the seizure memo Ex.PW6/A also merely mentions the recovery of Rs.60,000/­ from a briefcase in the aforementioned premises and therefore the contention is that the deposition of the IO PW30 Inspector Kukreti with respect to the recovery of BHEL certificates from the aforementioned premises is absolutely false and the FIR No. 592/07 PS Mehrauli 67 of 93 seizure memo Ex.PW19/J prepared separately with respect to the said certificates is a manipulated document. Though this court does agree with the Ld. Defence counsel that in the absence of any explanation forthcoming from the prosecution with respect to the necessity of preparing two separate seizure memos Ex.PW6/A and PW19/J when assertedly both the said seizures were made from the same briefcase, the recovery of BHEL certificates does become suspect more so when the landlord PW6 in whose presence the accused had led the police party to his room in the aforementioned premises, has deposed only about the recovery of Rs. 60,000/­, this court finds no reason to disbelieve the testimony of PW6 Sukhvir Singh, a public independent witness who has clearly deposed that on 24.09.2007 the police party accompanied by the accused had come to the aforementioned premises and that a briefcase containing Rs.60,000/­ was recovered from the said premises at the instance of the accused and that the accused used to stay in the said premises alongwith his relative Bahadur Singh to whom the premises had been rented. The fact that this witness is truthful can be gauged by the fact that he did not tow the line of the prosecution about the recovery of BHEL certificates and stuck to his version that in his presence only Rs.60,000/­ had been recovered from the briefcase pointed out by the accused. No doubt the conduct of the IO ACP Kukreti is suspect with respect to the preparation of a separate seizure FIR No. 592/07 PS Mehrauli 68 of 93 memo showing the recovery of the BHEL certificates but that alone is not a ground for this court to disbelieve the testimony of PW6, an independent pubic witness. It has been held by the Hon'ble Supreme Court in the case titled and reported as State of Karnataka Vs. K. Yarappa Reddy 2000 SCC (Crl.) 61 that the Courts should not be influenced by suspicious roles played by investigating officers during investigation and that criminal justice should not be made a casualty for the wrongs committed by the investigating officers. Further it is also not necessary that just because the conduct of the IO ACP Kukreti is suspect with respect to the preparation of Ex.PW19/J, the entire investigation done by him is to be viewed with suspicion. The maxim "falsus in uno falsus in omnibus" has no application in India. It is therefore not possible to accept the contention of the Ld. Defence counsel that the entire testimony of the IO ACP Kukreti should be discarded. Now this witness, PW30, Inspector Kukreti has also deposed about the relationship between the accused and the said Bahadur Singh. This witness on being questioned about which family member of the accused was informed about his arrest, has deposed that pursuant to the arrest of accused Kundan, his chacha Bahadur Singh was informed and that the said person had come to the spot of apprehension of the accused and had even put his thumb impression on the arrest memo, Ex.PW9/E. The fact that the accused again chose to take a false plea in his statement u/s 313 FIR No. 592/07 PS Mehrauli 69 of 93 Cr.PC with respect to his relationship with the said Bahadur Singh does lead to an inference that the prosecution is right even on this account. It is a matter of record that the accused took a plea in his statement u/s 313 Cr.PC that he did not know any person by the name of Bahadur Singh. However when the bio data and the forms proved by PW5, the ex­employer of accused, Ex.PW5/D and Ex.PW5/E which clearly mention that the accused had given the name of Bahadur Singh as one of his references was pointed out to him u/s 313 Cr.PC, he evasively replied that he does not exactly recollect as to why he had written the name of Bahadur Singh as one of his references. In the considered opinion of this court, the bio data and the form Ex.PW5/D and PW5/E do infact prove that Bahadur Singh was well known to the accused and that the accused has given false answer with respect to even this incriminating evidence against him. The contention of the Defence counsel and the suggestions put by him to PW30 ACP Kukreti in this regard namely that the investigating official himself fabricated the name of Bahadur Singh as the chacha of the accused on the arrest memo in order to create false evidence with respect to the residence of the accused at H.No. 615, Saiduahjab is too far fetched and indeed difficult to be accepted, more so when as narrated hereinabove, the name of Bahadur Singh was mentioned by the accused as his reference, in his own bio data. Further it is also to be taken note of that though the accused has FIR No. 592/07 PS Mehrauli 70 of 93 taken a stand that he was residing in some tenanted premises at Lado Sarai, he did not lead any evidence in this regard. This court is conscious of the fact that in a criminal trial, it is the duty of the prosecution to prove its case beyond all reasonable doubt and that the weakness in the case of the defence is irrelevant till the prosecution has discharged the burden of proving its own case however what this court wishes to emphasise is that when the prosecution has been able to prove an incriminating fact against the accused and the accused yet wishes the court to disbelieve the evidence put forward by the prosecution, then it is upon him to raise a reasonable doubt based upon some reason and common sense which must grow out of the evidence in the case. In a case titled and reported as Iqbal Moosa Patel Vs. State of Gujarat reported in 2011(1) JCC (Narcotics) 35, it has been observed by the Hon'ble Supreme Court that though it is true that under our existing jurisprudence in a criminal matter, we have to proceed with a presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man and the prosecution is not required to meet any and every hypothesis put forward by the accused. It was further observed that a reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense and must necessarily grow out of the evidence in the case. This court is constrained to note that the doubts raised by the FIR No. 592/07 PS Mehrauli 71 of 93 defence with respect to the deposition of PW6 Sukhvir Singh and that of PW30 Inspector Kukreti about the chacha of the Bahadur Singh being informed of the arrest of the accused are indeed trivial. To imagine that the investigating agency would first create the evidence that Bahadur Singh was the chacha of the accused and therefore was informed about his arrest and then plant Rs.60,000/­ at the residence of Bahadur Singh, does not at all appeal to common sense. The mere fact that PW6 could not tell the correct colour of the polythene from which the cash was recovered or that he referred to his house at a one storey house and then deposed that there were staircases, does not at all make his deposition inconsistent. Many persons refer to a house having ground and first floor as one storey houses only and do not count the ground floor as a storey. The much emphasis on this statement of the witness by the Ld. Defence counsel both in his oral and written submissions, is infact completely misplaced. In the considered opinion of this court, the prosecution has been able to prove beyond reasonable doubt that the accused had got recovered Rs.60,000/­ from his residential premises. Further since the accused failed to give an explanation with respect to the possession of such an amount of money and on the contrary took a false plea about not knowing Bahadur Singh at all, it does lead to the inference that this was the amount that he had withdrawn using the ATM card of the deceased.

FIR No. 592/07 PS Mehrauli 72 of 93

60.There is yet another incriminating circumstance available on record which points out towards the guilt of the accused person and that is the refusal of the accused to participate in the TIP proceedings and the statement made by him to the Ld. MM before whom the investigating officer had produced him for TIP proceedings. The said TIP proceedings have been proved on record by the said Ld. MM as Ex.PW9/B. As per the said proceedings, the Ld. MM had enquired from the accused whether he is willing to participate in the TIP proceedings and the statement that the accused gave before the Ld. MM was to the effect that he does not want to participate in the TIP because witnesses had seen him at Lado Sarai bus stand, New Delhi on 13.08.2007. The said TIP proceeding was also put to the accused person at the time of recording of his statement u/s 313 Cr.PC and in reply thereto, the accused admitted that he had refused to join the TIP proceedings and sought to explain that the police official who had brought him to the court had told him that in case he refuses, he will be released. It is indeed difficult to accept the said explanation of the accused for the TIP proceedings clearly record that the Ld. MM had explained to the accused that in case he refuses to participate in the TIP proceedings, an adverse inference would be drawn against him. Therefore the accused was made aware at the time of giving such a statement that contrary to him being released, the said refusal will be taken as a circumstance against him. The FIR No. 592/07 PS Mehrauli 73 of 93 Ld. MM who had proved the TIP proceedings had categorically deposed about the warning given by him to the accused but he was not at all cross­ examined on behalf of the accused. Further the defence also did not choose to put any suggestion to Inspector Kukreti who as per record had produced the accused before Ld. MM for TIP proceedings that it was he who had advised the accused to give such a statement to the Ld. MM. No doubt the contention of the defence that the prosecution has not been able to prove beyond all reasonable doubt that PW1 Brahm Singh and PW13 Ct. Raghuvir Singh had infact been able to see the face of the accused while he was throwing the body parts of the deceased in a rexine bag on the night of 13.08.2007 may have merit, however what has to be borne in mind is that the accused on the date that he was produced before the Ld. MM for TIP proceedings was not aware that the said witnesses had not been in a position to see his face and therefore refused to participate in the TIP proceedings. Further the deposition of PW1 Brahm Singh also proves that the motorcycle that was used for throwing the bag in question was the motorcycle having the registration number of Karnataka KA and also had the numerals 9735. As narrated in the facts hereinabove, this witness PW1 has inter alia deposed that on the night of 13.08.2007 while he was passing by Lado Sarai bus stand, in the night he had seen one person standing at the Lado Sarai bus stand throwing a bag in the bushes and thereafter fleeing FIR No. 592/07 PS Mehrauli 74 of 93 away from the spot by using a motorcycle which was parked nearby and that he could note down a part number of the motorcycle. He has also deposed that in the meantime, one police person also came to the spot and informed him that he had also seen the incident of throwing of the bag by a person and that thereafter this witness told the registration number of the motorcycle to him. Now in his cross­examination, he was put a question by the Ld. Defence counsel whether he had noted down the number of the motorcycle to which he has answered that he had not noted down the number of the motorcycle but it was learnt by him as a police Constable was also coming from behind.. Now the said answer is being read by the Ld. Defence counsel to argue that this witness has stated that he had come to know of the said number from the Constable who had been coming from behind and that since the Constable has admitted that he had not noted any number, PW1 had no knowledge of any number and that he has deposed falsely - I am afraid that the Ld. Defence counsel is not correctly reading the cross­examination in this regard and in the considered opinion of this court, the statement given by this witness is to be understood to mean that he had not physically noted down the number of the motorcycle but had remembered it - no doubt, the narration of the question in the cross­ examination could have been written in a better manner but if the said cross­examination is read in its totality, it is clear that the interpretation FIR No. 592/07 PS Mehrauli 75 of 93 sought to be given by the defence to the said statement of the witness is not correct. However, this court does agree with the Ld. Defence counsel that the deposition of this witness makes it clear that he and the Constable, PW13 were at such a distance from the person who threw the bag in the bushes then it may not have been possible for them to see his face. PW1 in his deposition has clearly stated that he had been unable to see the face of the person who had thrown the bag and therefore he cannot identify him. Further though PW13 Ct. Raghuvir Singh has deposed before the court that the accused was the one whom he had seen throwing the bag in the bushes behind Lado Sarai Bus Stand, one does have to agree that it would not have been possible for this witness to have seen the face of the person who had thrown the said bag as he has admitted in his cross­examination that he himself was on a motorcycle while patrolling and further that he was at a distance of about 150 mtrs from the said person and that it was night time and that further he had not given a facial description of the accused when his statement u/s 161 Cr.PC was recorded. Further as narrated hereinabove when PW1 Brahm Singh who was much nearer to the spot where the bag was thrown could not see the face of the person who had thrown the bag, it is indeed difficult to expect that this Constable who had come to the spot later than Brahm Singh could have seen the face of the accused. Having said so, the deposition of these two witnesses does however prove that the FIR No. 592/07 PS Mehrauli 76 of 93 motorcycle that was used for throwing the bag in question was the motorcycle having the registration number of Karnataka KA and that also had the numerals 9735. The contemporary documents prepared by the investigating agency on 13.08.2007 including the statement given by the complainant Ex.PW1/A clearly mentions the fact about the complainant having noted down the part number of the motorcycle. The said contemporary written documents cannot be doubted at all and the contention of the Ld. Defence counsel that PW1 Brahm Singh, a public witness deposed falsely merely at the instance of the police officials to safeguard himself is indeed difficult to accept. The suggestion put to this witness that infact it was he who alongwith his friend had dumped the body of the deceased and in order to save themselves, concocted a false story and that PW13 also connived with them and the contentions of the Ld. Defence counsel in this regard, has hardly any basis. The mere fact that PW1 has stated that in his car alongwith his friend Dalbir, there was also a person namely Sushil, a fact which is not recorded in the contemporary documents prepared, does not at all dent the version of the prosecution in this regard. If the said person Sushil was infact the person whom PW1 in connivance with PW13 wanted to shield as contended by the Ld. Defence counsel, there was no reason for him to disclose the presence of the said person, in his cross­ examination. Merely because a conscientious and an alert public citizen FIR No. 592/07 PS Mehrauli 77 of 93 having witnessed the suspicious throwing of a bag informs the police about the same, is no ground to doubt the said citizen himself.