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Crl.A.166/2021 and Death Ref.1/2020

6. The prosecution also relies upon the last seen evidence in the form of testimony of Jai Pal Singh Mann (PW-34) who was a property dealer and who stated to have seen the deceased child sitting in the Wagon-R car of the appellant around 9.30 PM. It was submitted that there was significant improvement in the version of PW-34 as narrated to the police in his statement under Section 161 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") and as stated before the Court, which renders his version unbelievable. In this regard, reliance was placed on the decision reported as AIR 2008 SC 114 Sattatiya @ Satish Rajanna vs. State of Maharashtra. It was also pointed out that the IO never moved an application for getting the appellant identified by PW-34 and therefore, in the absence of identification by PW-34 of the appellant renders the evidence of „last seen‟ weak. Learned counsel for the appellant further pointed out that the permission to get the voice sample of the appellant recorded by the CFSL was illegally granted. It was submitted that such permission could have been granted only after the appellant consents for same. Even otherwise, the IO after obtaining permission from the concerned Court did not take the accused to CFSL and rather got recorded his voice sample in his own room at the police station with the help of a private videographer Sonu Kohli (PW-18). It was further contended on behalf of the appellant that doubts looms as to whether the deceased child was present in the custody of the appellant or whether the deceased child was in the custody of PW-5 and his associates. A question in this regard was put to the forensic expert who examined the voice recording if he could ascertain the side from which the voice of the child was coming to which he replied that he was unable to ascertain the Crl.A.166/2021 and Death Ref.1/2020 side from which the voice of the child was coming. For this purpose, learned counsel also places reliance on the observation of the learned Trial Court noted during the recording of the evidence that the voice of the child was coming from the side of the witnesses which establishes a strong link of the presence of deceased child with the witnesses instead of the appellant. It was further contended that the mobile phone recordings were tampered and hence, cannot be relied upon. It was submitted that as per the testimony of PW-25, the Nokia mobile phone of the appellant had the auto recording facility. From the cross-examination of PW-5, PW-25 and the IO it is evident that three calls were exchanged between PW-5 and the appellant. However, as per the cross-examination of PW-25, PW-25 admitted that with the permission of the IO, he removed the memory card of the phone and erased all the other calls leaving behind only two calls i.e. he deleted the lengthiest call of 184 seconds. This is sufficient proof of tampering and the beneficiary of which is no-one other than PW-5, PW-25 and their associates. It was further pointed out that the prosecution heavily relies upon electronic evidence however, no certificate under Section 65B of the Indian Evidence Act, 1872 was brought on record. Learned counsel further pointed out that even till date the prosecution has not been able to ascertain the time till which the child was alive. As per the case of the prosecution, Jai Pal Mann saw the child alive till 10.35 PM and it was around 11.00 PM when the crane-wala reached with his crane, meaning thereby, that the deceased child was killed between 10.35 and 11.00 PM however, as per the CDR of the appellant, dozens of calls were made and received by the appellant during this period and therefore, it would be impossible for the appellant to talk on Crl.A.166/2021 and Death Ref.1/2020 the mobile phone and simultaneously injure the deceased child. It was submitted that the burden of proof lies upon the prosecution to prove the time of death and the manner of death etc. which the prosecution has miserably failed to prove. In this regard, reliance was placed on the decisions in (2017) 1 JCC 289 (SC) Harbeer Singh Sheesh Pal & Ors. vs. State of Rajasthan, AIR 1976 SC 975 Bhagirath vs. State of M.P., AIR 1977 SC 170 Rabindra Kumar Dey vs. State of Orissa and AIR 1976 SC 966 Partap vs. State of U.P. Learned counsel for the appellant further pointed out that it is also interesting to know that all the injuries found on the person of the deceased were on the left side of his head which would be towards the window side of the child and as such it would be difficult for the person sitting on the driver seat to inflict injuries on the left side of the body i.e. towards the window. Furthermore, even Sahil (PW-9) or the crane-walas did not notice any abnormal stain on the person or clothes of the appellant, which were although alleged to be stained with blood. It was further contended that even the IO in the present case did not conduct the investigation properly. It was submitted that the duty of IO is not to bolster up prosecution case with such evidence which enables the Court to record conviction but it is to bring out the real unvarnished truth and reliance was placed on a decision in AIR 1974 SCC 822 Jamuna Chaudhari vs. State of Bihar.

ii. Text messages exchanged between the father of the deceased (PW-36) and the appellant were extracted from the SIM card of the TIA mobile. Messages were not recovered from the TIA handset as it had no memory card from which data could be retrieved.

iii. That the IMEI number of both the handsets recorded in the seizure memo matched with those mentioned in the CDRs of the mobile phone. CDR of mobile No.9990401054 used by the appellant confirms that multiple phone calls and messages were exchanged between the appellant and PW-36 between 7.17.19 PM on 18th March, 2009 and 9.34.19 AM on 19th March, 2009. The CDR further reveals that the appellant had removed the SIM card of mobile No.9873883039 from Nokia handset due to exhaustion of its battery at 8.48 PM and transferred the same to TIA handset and it remained in the TIA handset till 11.12 PM. Further CDR of mobile No.9990401054 shows that this number which was originally lodged in TIA handset was Crl.A.166/2021 and Death Ref.1/2020 switched off between 8.30.19 PM till 12.30.02 AM on 19th March, 2009.

26) also stated that he had given a loan of ₹25,000/- to the appellant in the first week of February, 2009 and a further loan of ₹38,000/- after about a week or ten days.

8. In addition to the above submissions and in response to the contentions put forth on behalf of the appellant it was contended by learned APP that the disclosure and recovery of dead body at appellant‟s instance was proved by deceased‟s father (PW-36), who was also present at the time of appellant‟s arrest and there is nothing on record to suggest any enmity between the appellant and the family of the deceased for which PW-36 might falsely implicate the appellant. PW-3 and PW-39, deposed that they had received wireless messages to reach the dry drain where the dead body was recovered. Furthermore, the Zee news video (Ex.DW-1/A) relied upon by the appellant is neither supported by certificate under Section 65B of the Evidence Act nor the said video shows a 360 degree view of the spot nor does the said video reflect the time, date and place of recording as also admitted by DW-1, rather the said video merely records the recovery of dead body from one angle. And therefore, it cannot be said that the appellant was not present at the spot. It was the appellant‟s case that he was not present at the time of recovery of Wagon-R car from his house, however, learned APP submitted that the same was proved by PW-27, PW-40 and PW-42 as well as PW-36 and there is no reason to not believe these witnesses. The officer who conducted the mechanical inspection of the car i.e. PW-23, the crime team official (PW-39), victim‟s father and the IO have Crl.A.166/2021 and Death Ref.1/2020 consistently deposed that the key was available at the time of inspection of the car. The case of the appellant that the actual culprit of the offence was Devender Sharma @ Dev (PW-5) was demolished by the CDR and the location analysis of mobile No.9899902999 belonging to PW-5 as per which at the time of commission of offence, PW-5 was not in Rohini and instead was moving towards Chattarpur which is at a substantial distance from Rohini. It was also the case of the appellant that the version of the witness to the last seen evidence i.e. PW-34 was not believable and also that it was inconceivable that the deceased did not raise any alarm when PW-34 saw him. Per contra, learned APP submitted that PW-34 has given each and every detail of the incident which does not leave any doubt that he did not see the deceased in the company of the appellant. Further, the reason why the deceased did not raise any alarm because the appellant and the deceased were known to each other and that the deceased was in the company of the appellant from 6.00-6.30 PM till 10.00-10.30 PM i.e. for over four hours showing that the deceased was not aware of the appellant‟s intention to kill him.

Crl.A.166/2021 and Death Ref.1/2020

v) The call detail records of both the mobile numbers of the appellant showed his location near the victim‟s house i.e. Sector -11, Rohini in the evening hours from 5.35.16 PM to 7.04.50 PM. Further, even in the morning of 19th March, 2009 the CDR of the two mobile phones of the appellant showed his location as Sector 11, Rohini near the house of the deceased. Even though the presence of the appellant at Sector 11 prior to and after the incident cannot be incriminating as the appellant was a resident of C-4/3 Sector 11, Rohini after shifting from C-5/57 Sector 11, Rohini, however the CDR location of the appellant showing his location at Sector 24, Rohini from 8.47.58 PM to 11.12.23 PM on 18 th March, 2009 where the victim‟s body was discovered in the dry drain is clearly incriminating. Challenging the locations in the call details record, learned counsel for the appellant contends that the same could be misleading. It may be noted that at a given place if the range of two towers is available, the CDR may show either of them at any given point of time, however it cannot be said that once the person is not within that range some totally different location will be shown.