Delhi District Court
State vs 1 Devender Kumar @ Sanjay on 22 May, 2025
IN THE COURT OF SH. RAJ KUMAR, ADDITIONAL SESSIONS
JUDGE-05, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions Case No. 27921/2016) CNR no. DLCT01-002525-2015
State Vs 1. Devender Kumar @ Sanjay S/o Khem Chand
R/o H. No. 10/119, Near Gurudwara, Geeta
Colony, Delhi-31
2. Vinay @ Monty S/o Jag Narayan
R/o H. No. 1123/61, Multani Mohalla, Geeta
Colony, Delhi-31
........ Accused persons
FIR No. 799/2014
Police Station Daryaganj
Charge-sheet filed Under Section U/s 302/404/201/34 IPC
Charges framed against accused U/S 302/201/34 IPC
Nazar Khan
Date of institution of case 12.05.2015
Date of conclusion of arguments 28.04.2025
Judgment reserved on 28.04.2025
Judgment Pronounced on 22.05.2025
Decision Acquitted
In view of the circular bearing No. 73362-73488/Rules/ Gaz./2024
dated 18.12.2024, the accused has been informed of the availability of
free legal aid services for pursuing further remedies, if any.
Contact Address of CDLSA:- Room no. 287, Tis Hazari Courts, Delhi
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Judgment
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. The case of the prosecution, in brief, is that on 29.12.2014, from
05:00 pm to 01:10 am on 30.12.2014 on the service road in
between Shantivan to Shakti Sathal, Daryaganj, Delhi, within the
jurisdiction of PS Daryaganj, both the accused persons namely
Devender Kumar @ Sanjay and Vinay @ Monty, in furtherance
of their common intention, committed the murder of Naresh
Bansal and also caused disappearance of the evidence i.e. got
destroyed blood stained seat cover of WagonR car bearing no.
DL-13CA-3294, stone used in the murder of Naresh Kumar
Bansal and the shirt worn by the accused Devender Kumar @
Sanjay and thus, the accused persons committed the offence
punishable u/s 201/302/34 IPC.
REGISTRATION OF THE FIR, INVESTIGATION AND CHARGE
SHEET
2. The criminal machinery of the State, in the case in hand, was put
into motion on receipt of DD entry no. 2(A) at 01:15 PM on
30.12.2014 in respect of the information that one person in the
injured condition having clutch wire in his neck was lying on the
service Road of Shantivan and he appeared to be dead and blood
was oozing out. The above said information was received from
SI Manohar Lal, the Incharge of Oscar 23, the PCR Van and the
above said DD entry was assigned to Inspector Vivekanand Jha,
SHO PS Daryaganj. Inspector Vivekanand Jha accompanied by
SI Manoj Kumar went to the spot in the Government Vehicle
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bearing no. DL1CJ05 and they met SI Manohar Lal at the spot.
The dead body of the deceased was found to be lying near the
fencing of the green belt at the service road in between Shantivan
and Shakti Sathal. The deceased was having a cut wound on his
right cheek and a deep wound on his neck, caused by some sharp
object. A clutch wire was also found to be wrapped around the
neck of the deceased. Blood was found to be scattered near the
head of the deceased and the clothes of the deceased were also
having blood stains. The face and neck of the deceased was also
smeared in blood. From the possession of the deceased, one
adhar card and DTC pass, which was having the photo of the
deceased and his name as Naresh Kumar s/o Girvar Dayal r/o
6268, Kucha Shiv Mandir, Nayabans, Chandni Chowk, Delhi,
were recovered.
3. As per the charge sheet, Sh. Pankaj Bansal s/o Sh. Naresh Kumar
Bansal R/o B-66/169, Guru Nanakpura, Laxmi Nagar, Delhi had
come to Daryaganj police station for lodging the missing
complaint in respect of the missing of his father but he was
referred to PS Jama Masjid as per the jurisdiction. DD no. 3A
dated 30.12.2014 was registered at PS Jama Masjid in respect of
the deceased Naresh Kumar Bansal. From a perusal of the
injuries suffered by the deceased and from the circumstances
prevailing on the scene of the crime, the offence u/s 302 of the
IPC was found to be committed.
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4. The charge sheet further states that a tehreer was prepared by
Inspector Vivekanand Jha and rukka was sent through Ct.
Bachhu Singh for registration of the FIR.
5. The FIR bearing no. 799/2014 u/s 302 of the IPC dated
30.12.2014 PS Daryaganj was lodged on the basis of the
statement of the Incharge of the PCR Van, SI Manohar Lal who
stated that he was the Incharge of the PCR Van in the Central
Zone and he was on duty on 30.12.2014 in the C Shift. When SI
Manohar Lal along with the staff in the PCR van was patrolling
in the area and came to the spot at about 01:10 AM on
30.12.2014, he found the deceased to be lying on the service road
in between Shantivan and Shakti Sathal. The information was
given to the command room by SI Manohar Lal and SI
Vivekanand Jha reached at the spot.
6. After registration of the FIR, investigation was taken up, the
scene of the crime was got inspected by the mobile crime team of
Central District consisting of the Incharge SI Dhan Singh, the
photographer Ct. Virender Singh and the fingerprint expert Ct.
Hardev Singh. Ct. Virender Singh took the photographs from
various angles but chance prints could not be lifted by the
fingerprint expert. Exhibits were seized and sealed such as the
blood sample, blood stained soil and the earth control. SI Dhan
Singh handed over SOC Report no. 1363/2014 dated 30.12.2014
to the IO of the case. The statements of the witnesses were
recorded and the site plan without scale was prepared. A printed
brown coloured torn piece of the cloth lying near the head of the
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deceased, one Adhar card, one DTC pass and Rs. 38/- in total
together with some visiting cards and old documents and one
handkerchief of green colour having blood stains were also
seized and sealed by the IO and deposited in the Malkhana. The
dead body of the deceased was preserved in MAMC(Maulana
Azad Medical College) mortuary. The dead body of the deceased
was got identified by the IO from Sh. Manish Bansal and Sh.
Pankaj Bansal, both sons of the deceased Naresh Kumar Bansal.
IO recorded the statements of Sh. Manish Bansal and Sh. Pankaj
Bansal, both the sons of the deceased, u/s 161 of the Cr.P.C..
7. The charge sheet further states that the statement of Manish
Bansal s/o Deceased was recorded u/s 161 of the Cr.P.C., as per
which, the deceased was aged about 70 years of age and on
29.12.2014, a call was received by Manish Bansal from his
mother to the effect that the deceased had not come to the shop
on that day and the mobile phone of the deceased was switched
off. One Sh. Arun, friend of the deceased was enquired in this
respect, who stated that he was in Meerut. Search of the deceased
was done in the area of Chandni Chowk and Jama Masjid and
thereafter, missing report was lodged. As per the statement of
Manish Bansal, the deceased was using Samsung Mobile bearing
no. 9810492582 and he was wearing a golden bangle in his right
hand and two rings of gold in his two fingers. One of the rings
was having a red coloured coral (Moonga stone) and the other
was having transparent Zircons. Manish Bansal expressed the
doubt that the persons who had committed the murder of his
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father had taken away the gold rings and the mobile phone of the
deceased with him. However, Manish Bansal was not having the
suspicion/ doubt on anyone in connection with the murder of his
father.
8. Statement of Pankaj Bansal, the other son of the deceased was
also recorded u/s 161 of the Cr.P.C. who stated that on
29.12.2014, he had accompanied his father on the scooty to
Shroff Hospital, Daryaganj, Delhi for the treatment of his eyes
and after getting the treatment, he had left his father by riding on
a scooty at 05:00 PM at Subhash Park, Bus Stand, Jama Masjid
because his father had stated that he would go to his shop from
that place by riding in a bus. Thereafter, Pankaj Bansal went to
his shop at Laxmi Nagar and thereafter, at about 08:30 PM, his
uncle Pawan Bansal gave a call at the mobile phone of the
mother of Pankaj Bansal to the effect that the deceased had not
come to the shop. The mobile phone of the deceased was
switched off. The missing report of the deceased was lodged with
PS Jama Masjid. Thereafter, Pankaj Bansal has narrated the same
facts in his statement u/s 161 of the Cr.P.C., which have been
narrated by Manish Bansal in his statement u/s 161 of the
Cr.P.C..
9. As per the charge sheet, since the golden bangle, golden rings
and one Samsung Mobile phone of the deceased was found to be
missing, Section 379/201 IPC was added in the charge sheet.
Postmortem vide PM no. 1256/2014 dated 30.12.2014 of the
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deceased was got done from MAMC Mortuary and the PM report
has described the cause of death as under:-
“Probable time since Death: about three fourth of a
day(Eighteen hours).
Cause of Death: Hemorrhagic shock as a result of the ante
mortem injury to neck produced by sharp object. All the
injuries are fresh and ante mortem in nature. Injury number
8 and 10 were individually and collectively sufficient to
cause death in ordinary course of nature. However viscera
have been preserved for chemical analysis to rule out any
associated common poison or alcohol intoxication.”
As per the PM report dated 30.12.2024 Ex. PW29/A on record,
as many as 13 injuries were found on the body of the deceased.
10.The charge sheet further states that the sealed pullandas
containing the viscera of the deceased, clothes of the deceased,
wire around the neck of the deceased, blood gauze along with the
sample seal and nail clippings of the deceased, were handed over
by the doctor who conducted the postmortem to the IO of the
case and the same were taken into possession by the IO and
seized by him.
11.As per the charge sheet, the CDR of the mobile phone of the
deceased bearing no. 9810492852 was obtained and as per the
CDR, after 05:00 PM, there was an incoming call on the above
said mobile from mobile no. 8800107828 at 17:09:01 hours and
the last incoming call from the said number was at 19:16:35
hours. The last location of the mobile phone of the deceased was
found to be at Haryana Gaur Brahman, Zamindar Sabha, 30,
Shriram Road, Civil Lines, Delhi and the location of the mobile
phone bearing no. 8800107828 was also the same at 18:58:16
hours and thereafter, location of the said mobile phone was found
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to be near Shantivan, where, the dead body of the deceased was
found at 19:53:57 hours at 23/24, Ansari Road, Govind Lane, 24,
Daryaganj, Delhi. The above said mobile phone bearing no.
8800107828 was found to be belonging to the accused Devender
@ Sanjay who was doing the business of transport along with his
father Sh. Khemchand in vicinity of the office of the deceased
situated at Kucha Brijnath, Chandni Chowk, Delhi.
12.As per the case of the prosecution, during investigation, it
transpired that the accused Devender @ Sanjay was residing in
House no. 10/119, near Gurudwara, Gita Colony and the above
said accused was apprehended and arrested by the IO on the basis
of the secret information, when the accused Devender @ Sanjay
was coming to Chandni Chowk from Gita Colony Flyover in his
Silver Colour WagonR car bearing no. DL13CA3294. The left
side doors of the above said car(in the very next line of the
charge sheet on the same page, the car no. of the deceased has
been mentioned as DL13CA3605, though as per the seizure
memo Ex. PW33/B, the correct no. of the car is DL13CA3294)
were found to be having blood stains and the footmat on the left
side of the seat of the driver was also found to be having blood in
large quantity. The accused Devender @ Sanjay disclosed that he
had committed the murder of the deceased in conspiracy with the
co-accused Vinay @ Monty. The above said car was taken into
possession by the IO. The accused Devender @ Sanjay, in his
disclosure statement, stated that three years back, he had
borrowed the amount of Rs. 3,000/- at 15% interest rate from
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Guruji(the deceased Naresh Kumar Bansal). Despite the fact that
the accused Devender was paying the interest @ Rs. 450/- per
month, the deceased indulged in arguments with the said accused
in the market, when he was not able to return the amount. Sh.
Khemchand, the father of the accused heard the arguments and
he returned the amount of Rs. 3,000/- to the deceased but even
thereafter, the deceased kept on charging the interest from the
accused Mayank. The total amount was mounted upto Rs. 1.5
lacs. The deceased used to threaten the accused and belittle him
in the market. Even the driving license and one cheque was
handed over by the said accused to the deceased as security but
the deceased did not mend his ways and he kept on abusing the
accused in filthy language. Thereafter, the accused Devender @
Sanjay hatched a conspiracy along with the co-accused Vinay @
Monty to kill the deceased Naresh Bansal.
13.As per the disclosure statement of the accused Devender @
Sanjay on 29.12.2014, on the pretext of returning the amount, he
made the deceased sit in his above said car from near Vankhandi
Mandir(where the deceased used to go to pay his offerings) and
thereafter, after going ahead a little bit, he also made the co-
accused Vinay @ Monty to sit in the said car bearing no.
DL13CA3294. Near about ISBT Monastery, both the accused
persons committed the murder of the deceased Naresh Bansal
with the help of a stone, paper cutter and clutch wire. The dead
body was thrown on the service road in the area of Rajghat and
the stone was thrown in the way from ISBT Monastery to
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Rajghat. The paper cutter used in the commission of the offence,
the gloves and the mobile phone of the deceased were thrown on
the service road itself. As per the disclosure statement of the
accused Devender, the co-accused Vinay @ Monty was his
friend and both of them were having familiar relations. Father of
Vinay @ Monty used to ply Vikram Tempo under the father of
the accused Devender. The co-accused Vinay @ Monty was in
the habit of gambling and he was under a huge debt. The co-
accused Vinay @ Monty agreed to commit the crime on the
pretext that he would be getting Rs. 1-2 lacs after selling the
golden bangle and golden rings of the deceased. The clutch wire,
the paper cutter and the gloves were kept in the car by the
accused Devender and thereafter, he gave a call from his mobile
number 8800107828 to the mobile no. 9810492852 of the
deceased at about 04:00 PM on 29.12.2014. The accused
Devender came to know that the deceased had gone to
Vankhandi Mandir to pay his offerings and thereafter, the
deceased and the co-accused Monty were made to sit in the said
car of the accused at about 05:30 PM. The blow on the face of
the deceased was given by the accused Devender @ Sanjay with
the stone and the throat of the deceased was pressed by the clutch
wire by the co-accused Monty. The wounds on the face of the
deceased with the paper cutter were given by the accused
Devender. Within a time span of 4-5 minutes, the deceased
expired. The co-accused Monty removed the golden bangle and
the golden rings from the body of the deceased. The mobile
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phone and the amount of Rs. 7000-8000 and one key were
removed from the pocket of the deceased by the accused
Devender. The dead body of the deceased was thrown on the
service road. Thereafter, both the accused in the said car went to
Geeta Colony, bought a bottle of water and washed their hands.
The accused Devender got a jacket and kept his blood stained
shirt in the car and wore the new jacket. The co-accused Monty
left the spot after having the golden bangle, golden rings and the
amount of Rs. 3,500/-. Thereafter, the accused Devender got
filled the petrol in his car for an amount of Rs. 500/- from the
petrol pump situated in front of Subhash Park and went to the
office of the deceased at Chandni Chowk. Thereafter, the
accused Devender gave a call to one Shyam, who was working in
the office of the deceased and he told that he had come to
Vankhandi Mandir in search of the deceased. The accused
Devender returned to his home at Geeta Colony and parked his
car at about 10:30 PM. The accused Devender hid the blood
stained pant, blood stained shoes and jacket in the back side of
the sofa in his bed room and thereafter, he took his wife and his
children to his in-laws house at Faridabad in the night at about
11:00 PM and left them at house no. 1B, 21, Second Floor, Near
Bata Petrol Pump, NIT Faridabad.
14.Accused Devender, in his disclosure statement, has further stated
that he removed the seat cover of the said car which was having
blood stains and threw the same in the Nala at a short distance
from the house of his in-laws, came back to his home at Geeta
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Colony and slept. Thereafter, at about 09:00 AM on the next day,
the accused again went to Faridabad and got fitted new seat cover
in his car from the shop known as Jagdamba Seat covers situated
at Faridabad. At about 10:30, the accused Devender left
Faridabad and at about 12:00, he returned back to his home at
Geeta Colony.
15.As per the charge sheet, the IO recovered the blood stained paper
cutter and a black coloured Glove from under a tree near the
railing on the service road, Shantivan, Rajghat at the instance of
the accused Devender. The IO also recovered and seized blood
stained clothes and shoes from house no. 10/119 Geeta Colony,
Delhi of the accused Devender. The above said recovered articles
were seized and sealed by the IO. PC remand for three days of
the above said accused Devender was obtained from the court on
03.01.2015 and further investigation was handed over to
Inspector Amrit Raj.
16.The second IO of the case, as per the charge sheet, tried to
recover the blood stained shirt and seat cover which were thrown
in the drainage by the accused Devender but the same could not
be recovered. Statement of Sh. Charanjeet Arora, owner of the
shop at Faridabad from where, the new seat covers were fixed in
the car by the accused Devender and the worker Mohd. Yusuf
who had changed the seat covers were examined and their
statements u/s 161 of the Cr.P.C. were recorded.
17.On 08.01.2015, the accused Vinay @ Monty surrendered in the
court and his four days’ PC remand was obtained by the IO of the
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case. The disclosure statement of the co-accused Vinay @ Monty
was recorded but the disclosure statement of the co-accused
Vinay @ Monty is exactly on the same lines as that of accused
Devender. At the instance of the co-accused Vinay @ Monty
from his house bearing no. 1123/61, Multani Mohalla, Geeta
Colony, Delhi, the clothes worn by him and the shoes were
recovered and seized by the IO.
18.Ms. Sunita Gupta, the Senior Scientific Officer(Biology) lifted
certain exhibits such as the cutting from the footmat, the stains
prepared from the left door of the car, the stains prepared from
left door frame and the red colour car sunscreen from the car
bearing no. DL13CA3294. The pointing out memo of the place
of occurrence was prepared at the instance of the co-accused
Vinay @ Monty.
19.The piece of gold weighing about 18 grams after melting the
golden rings worn by the deceased from the goldsmith namely
Sujal, to whom, the gold rings were sold by the accused Vinay @
Monty for an amount of Rs. 37,000/-, was recovered. However,
the golden bangle was found to be fake. The artificial coral and
nine transparent zircons were also recovered at the instance of
the accused Vinay @ Monty from the goldsmith Sujal. The
above said articles were sealed and seized by the IO. One page of
blue coloured diary, in which, it was mentioned by the accused
Vinay @ Monty that he has received Rs. 37,000/- in lieu of two
golden rings was also handed over by the goldsmith Sujal to the
second IO and the same was also seized by the IO.
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20.The supplementary statements of the accused persons were also
recorded by the second IO on 09.01.2015 and 10.01.2015. The
accused Devender in the supplementary statement disclosed that
the windscreen of the car bearing no. DL13CA3294 was broken
when he had given a blow on the head of the deceased with the
stone and he had got changed the windscreen of his car from NIT
Faridabad. The second IO recorded the statement of the shop
owner namely Gulshan Verma, from whose shop, the windscreen
was got changed for an amount of Rs. 2,500/- was recorded by
the IO. The broken pieces of the windscreen were seized and
sealed by the IO.
21.The second IO got recorded the statement of the goldsmith Sujal
u/s 164 of the Cr.P.C.. The subsequent opinion in respect of the
injury from the paper cutter was obtained and as per the opinion
of the concerned doctor “the injury nos. 5, 6, 7, 8, 9, 10, 12 and
13 on the body of the deceased are possible by the said weapon
examined and any weapon similar to it”.
22.The car bearing no. DL13CA3294 was found to be in the name
of Khemchand, the father of the accused Devender Kumar. The
Moonga stone and zircons, which were studded in the two golden
rings of the deceased were identified by Pankaj Bansal, son of
the deceased. The CDR, CAF and cell ID location of the mobile
numbers 9810492852; 8800107828 and 9811803883 were
obtained by the IO. The mobile number 9810492852 was found
to be in the name of the deceased Naresh Kumar Bansal; the
mobile number 8800107828 was found to be in the name of the
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accused Devender Kumar and mobile number 9811803883 was
found to be in the name of one Badal, the brother of the accused
Vinay @ Monty. As per the CDR, the accused Devender Kumar
had given a call to the deceased Naresh Kumar Bansal on
29.12.2014 at about 13:20:40 hours, 16:22:19 hours and 17:09:01
hours. The accused Devender and the accused Vinay @ Monty
had talked to each other on their above said mobile phones on
29.12.2014 at about 12:27:59 hours, 12:36:28 hours, 17:25:07
hours, 17:28:04 hours, 17:39:34 hours, 17:46:04 hours, 17:47:13
hours, 17:48:55 hours, 18:18:09 hours and 18:58:18 hours. The
location of the mobile phone of the deceased Naresh Kumar
Bansal was found to be at Mahant Vivek Shah, 2217, Gaddi
Suthre Shah, Jamuna Bazar, Delhi near Vankhandi Mandir at
17:11:20 hours and the location of the mobile phone of the
accused Devender was also found to be near Vankhandi Mandir
from 16:46:09 hours to 17:48:55 hours and the location of the
mobile phone of the accused Vinay @ Monty was also the same
from 16:51:44 hours to 17:48:55 hours. Thereafter, the location
of the mobile phone of the accused Devender Kumar was found
to be in the area of ISBT Monastery w.e.f. 18:10:30 hours to
18:58:18 hours and the location of the mobile phone of the
accuse Vinay @ Monty was also in the area of ISBT Monastery
from 18:18:08 hours to 18:56:37 hours. The location of the
mobile phone of the deceased was also in the area of ISBT
Monastery at 19:16:35 hours. Thereafter, the location of the
mobile phone of the accused Devender was found to be in the
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area, where the dead body of the deceased was found at 19:53:57
hours and the location of the mobile phone of the accused Vinay
@ Monty was also the same.
23.The charge sheet further states that as per the CDR locations, the
accused Devender and Vinay @ Monty were together from
05:00PM to 08:00 PM on 29.12.2014. The murder of the
deceased was done in the car bearing no. DL13CA3294 by the
above said two accused persons near ISBT Monastery and the
dead body was thrown on the service road near Shantivan in
between 07:30 PM to 08:00 PM.
24.The scaled site plan was got prepared. The mobile phone of the
deceased, the key and the bangle worn by the deceased could not
be recovered. The mobile phone of the accused Vinay, shirt by
the accused Devender Kumar at the time of commission of the
offence, the blood stained seat cover of the above said car and the
stone used in the commission of the crime could not be
recovered. The exhibits were sent to FSL Rohini and after
completion of the investigation, the charge sheet was filed by the
IO, in the court.
COGNIZANCE
25.Perusal of the record of the case reveals that the cognizance of
the offence was taken by the ld. MM vide orders dated
30.03.2015.
SUPPLY OF COPIES AND COMMITTAL
26.Copies of the charge sheet and the documents annexed with the
charge sheet were supplied to the accused in compliance of
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Section 207 of the Cr.P.C. and the matter was committed to the
court of Sessions by the orders dated 06.05.2015 passed by the
ld. MM(Central)-05, Tis Hazari Courts, Delhi.
CHARGE
27.Finding a prima facie case against the accused Devender Kumar
@ Sanjay and Vinay @ Monty, vide orders dated 28.07.2015, the
charges u/s 302/201/34 of the IPC were framed against the
accused persons namely Devender Kumar @ Sanjay and Vinay
@ Monty for committing the murder of deceased Naresh Kumar
Bansal.
PROSECUTION WITNESSES
28.In order to prove its case, the prosecution has examined as many
as 40 witnesses in total.
i. PW1 is the Duty Officer ASI Ajab Singh, who was posted
with PS Daryaganj on 30.12.2014 and whose duty hours were
from 12:00 AM to 08:00 AM. PW1 has stated that at about
01:15 AM, he had received the call from the control Room to
the effect that one person was lying injured at Slip Road,
Shantivan, wire was tied on his neck and he seemed to be
dead and blood was oozing out. PW1 recorded DD entry no.
2A in this respect as Ex. PW1/A. PW1 recorded the FIR after
receipt of the rukka through Ct. Bachu Singh sent by
Inspector Vivekanand Jha at 02:40 PM as Ex. PW1/B. PW1
made the endorsement on the rukka vide endorsement Ex.
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PW1/C and recorded the DD entries no. 4A and 5A as Ex.
PW1/D and Ex. PW1/E in respect of registration of the FIR.
The certificate u/s 65B Indian Evidence Act was exhibited as
Ex. PW1/F during the testimony of this witness.
In the cross-examination, PW1 has stated that he was not the
operator of the computer and he was not the custodian of the
computer. PW1 has further stated that he had not typed the
FIR on the computer.
ii. PW2 is SI Manohar Lal, the Incharge of PCR Van Oscar 23
who had first seen the dead body of the deceased on 29-30/
12/2014 while on patrolling duty at about 01:10 AM on the
right side of the Slip Road between Shantivan and Shakti
Sthal.
In the cross-examination, PW2 has admitted it to be correct
that one driver was also with him in the PCR van but his
statement was not recorded by the IO. PW2 has admitted it to
be correct that there was no paper in the file to show that
either he had visited the spot or he made any entry regarding
his duty at the spot. PW2 has further stated that SHO had not
prepared any documents in his presence and had not signed
any document in the presence of SHO.
iii. PW3 is HC Ghansi Ram from PS Jama Masjid who recorded
the missing report in respect of the deceased Naresh Kumar
Bansal at the instance of his son Pankaj Bansal at about 01:10
AM on 30.12.2014 vide DD entry no. 3A which was
exhibited as Ex. PW3/A during the testimony of this witness.
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In the cross-examination, PW3 has admitted it to be correct
that Daily Duty Register is being maintained in the police
station. PW3 has further stated that he personally had not
given any written order to the IO regarding his duty during
the relevant time.
iv. PW4 is Ct. Anup Dagar, the Driver of Hearse Van and this
witness on 30.12.2014 deposited the dead body of the
deceased in the mortuary of MAMC hospital with ASI
Sohanvir and Ct. Nemi Chand.
In the cross-examination, PW4 has stated that his statement
u/s 161 of the Cr.P.C. was recorded by SHO Vivekanand Jha
at Mortuary MAMC and it took about 10-15 minutes in
recording of his statement. In his presence, statement of the
other persons were not recorded. PW4 has admitted it to be
correct that the place from where, the dead body was
recovered, was a public place where public persons used to
pass. PW4 further states that he does not remember whether
any public persons were present at the spot or not.
v. PW5 is Ct. Hawa Singh who handed over the copy of the FIR
at about 03:40 AM on 30.12.2014 to the joint CP, DCP and
the Ilaka MM.
In the cross-examination, PW5 has stated that he did not
obtain any receiving of the said FIR from the above said three
officials.
vi. PW6 is Ct. Virender, the photographer who was
accompanying the mobile crime team and this witness has
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proved on record fourteen photographs of the scene of crime
as Ex P6/1 to Ex. P6/14 and the negatives of the photographs
as Ex. P6/15 to Ex. P6/28.
In the cross-examination, PW6 has stated that he had not
made any entry regarding their departure in the DD register of
their office. PW6 further states that he did not know the
model number of the Nikon camera and there was no
provision of date and time in the said camera. PW6 admits it
to be correct that there is no date or time in the photographs
Ex. P6/1 to Ex. P6/14. He further states that he did not deposit
the negatives Ex. P6/15 to Ex. P6/28 in the Malkhana and the
same were under his custody.
vii. PW7 is Inspector Dhan Singh, the incharge of the Mobile
Crime Team and this witness has exhibited the SOC report as
Ex. PW7/A. PW7 has further stated that he remained on the
scene of the crime for about one and a half hour. During the
testimony of this witness, PW7 identified the plastic container
having the blood on gauze piece as Ex. P1, the plastic
container having blood stained soil(earth control) as Ex. P2,
the plastic container having the earth control as Ex. P3 and the
envelope containing the clutch wire as Ex. P4.
In the cross-examination, PW7 has stated that he does not
know as to who had written the particulars of the case on the
doctor’s tape but on the plastic container, he had written
‘blood stained earth’ Ex. P2. PW7 has admitted it to be
correct that he had not mentioned on all the above said plastic
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containers as to from which place and whose blood was lifted.
PW7 was confronted with his statement Ex. PW7/D1,
wherein, it was not mentioned that the clutch wire was not
found around the neck of the dead body. PW7 has further
stated that they had gone to the spot in the Government
Vehicle bearing Registration no. DL-1LE-3694.
viii.PW8 is Manish Bansal, the son of the deceased and this
witness has deposed on the lines of his disclosure statement
(the material particulars of which have already been narrated
while narrating the facts of the charge sheet in the preceding
paragraphs). PW8, in his examination-in-chief, has stated that
he and his brother identified the dead body of his deceased
father in the presence of the IO vide his statement Ex.
PW8/A. PW8 identified the red coloured Moonga stone as Ex.
P8/1 and nine pieces of transparent Zircon as Ex. P8/2
produced by the MHC(M).
In the cross-examination, PW8 states that he does not know if
the IO had seized the CDR of mobile phones of his mother
and his brother Pankaj. PW8 further states that he had made a
call at about 10:00 PM to his brother Pankaj Bansal informing
him that their father was missing. PW8 states that he had not
stated in his statement recorded by the IO that his brother
Pankaj Bansal had taken the police officials of Kotwali to
Subhash Park, where, Pankaj Bansal had dropped his father at
about 05:00 PM. PW8 had not stated in his statement
recorded by the IO that the police officials had called his
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brother Pankaj Bansal along with the photo of his father. PW8
has further stated that the Moonga and the transparent Zircon
are easily available in the open market. PW8 has admitted it
to be correct that he had not joined the judicial TIP of the
above said Moonga and transparent Zircons.
ix. PW9 is Sh. Pankaj Bansal, one more son of the deceased and
this witness has also deposed on the lines of his disclosure
statement. PW9 identified the dead body of his father vide his
statement Ex. PW9/A. PW9 further states that after the
postmortem, the dead body of his father was handed over to
him vide memo Ex. PW9/B. PW9 further states that he joined
the TIP proceedings and identified the red coloured Moonga
and one transparent Zircon which were in the rings of his
father vide TIP proceedings Ex. PW9/C.
In the cross-examination, PW9 has admitted it to be correct
that there is no identification mark on the red coloured
Moonga and transparent Zircon. PW9 has admitted it to be
correct that similar Moonga and Zircon were easily available
in the open market.
x. PW10 is Inspector Mahesh Kumar, the Draftsman, who
proved on record the scaled site plan of the scene of the crime
as Ex. PW10/A on 05.03.2015.
In the cross-examination, PW10 has stated that he prepared
the site plan at the instance of Inspector Vivekanand Jha and
Inspector Amrit Raj.
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xi. PW11 is Sh. Charanjeet, the owner of Jagdambe Car World at
Faridabad, from whom, allegedly the new seat covers of black
colour were got affixed through PW14 Mohd. Yusuf in the
WagonR car of the accused Devender at about 09:15 AM on
30.12.2014 but this witness has failed to support the case of
the prosecution. In his examination-in-chief, PW11 has stated
that in the month of January 2015, four officials of PS
Daryaganj had come to his shop and he had told them that he
might have sold the seat cover as it was his business.
PW11 was cross-examined by the ld. Addl. PP for the State
but even in his cross-examination, he denied the contents of
his statement u/s 161 of the Cr.P.C. Ex. PW11/P on record.
PW11 denied the suggestion that the IO along with the
accused Devender had visited his shop on 02.01.2015. PW11
has denied the suggestion that he had stated in his statement
u/s 161 of the Cr.P.C. that on 30.12.2014 on the day of
Tuesday, he had opened his shop and thereafter, at about
09:15 AM, the accused Devender had visited his shop in his
Silver Colour WagonR car having Delhi registration number
and he had affixed the black coloured cloth seat’s cover after
charging Rs. 1,500/- from the accused Devender. The said
WagonR car was produced in the court and seat covers were
shown to the witness but even after seeing the seat covers,
PW11 stated that the above said seat covers might have been
or might have not been sold by him. PW11 has failed to
identify the accused Devender.
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In the cross-examination done by the ld. Counsel for the
accused, PW11 has admitted it to be correct that the accused
Devender was not brought to his shop by the police officials
of PS Daryaganj when they visited his shop and even the seat
covers were not shown to him on that day when the police
officials had visited his shop. PW11 has further stated that the
seat covers shown to him on that day were easily available in
the open market.
xii. PW12 is Ct. Mukesh who accompanied the second IO Amrit
Raj on 08.01.2015 to the court when the accused Vinay @
Monty surrendered before the court. This witness has stated
that the IO, after seeking permission from the court,
interrogated the accused Vinay @ Monty. The arrest memo,
personal search memo and disclosure statement of the accused
Vinay @ Monty have been exhibited as Ex. PW12/A, Ex.
PW12/B and Ex. PW12/C during the testimony of this
witness.
In the cross-examination, PW12 has denied the suggestion
that no disclosure statement was made by the above said
accused.
xiii.PW13 is Gulshan Verma, who was running the business of
glass in shop no. 162 R at Tikona Park Market near Vaishno
Devi Mandir and this witness failed to support the case of the
prosecution on the aspect that the accused Devender had got
changed the front wind glass(windscreen) of his WagonR car
from the above said shop. PW13 has denied the contents of
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his statement u/s 161 of the Cr.P.C. Ex. PW13/P1 and he also
denied the contents of the seizure memo Ex. PW13/P2 in
respect of the broken glass.
PW13, in the cross-examination by the ld. Addl. PP for the
State, denied the suggestion that the windscreen of his car was
got changed from the shop of PW13 for an amount of Rs.
2,500/- on 30.12.2014.
xiv.PW14 is Mohd. Yusuf, the employee of the shop of PW11
Charanjeet and this witness has deposed exactly on the same
lines on which, PW11 Charanjeet has deposed. This witness
not only in his examination-in-chief but even in his cross-
examination by the ld. Addl. PP for the State denied the
contents of his statement recorded u/s 161 of the Cr.P.C. by
the IO Ex. PW14/P1 on record.
xv. PW15 is Ct. Bachu Singh and this witness joined the
investigation with the IO Vivekanand Jha on 30.12.2014. This
witness visited the spot along with the IO, SI Manoj and Ct.
Anil Operator in the Government Vehicle DL1CA3605 on
30.12.2014 at 01:15 AM. This witness has deposed on the
lines of the investigation done by the IO. This witness has
stated that the IO lifted the blood, blood stained soil and earth
control soil and seized the same vide seizure memo Ex.
PW15/A. This witness has further stated that the blood stained
clothes recovered from the spot was seized vide seizure memo
Ex. PW15/B. The seizure memo pertaining to the Adhar card
and DTC pass recovered from the deceased has been
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exhibited as Ex. PW15/C; the seizure memo pertaining to the
blood stained handkerchief has been exhibited as Ex. PW15/D
and the seizure memo pertaining to the exhibits handed over
by the doctor to the IO after the postmortem has been
exhibited as Ex. PW15/E. PW15 has identified the blood
stained cloth piece as Ex. P15/1; the blood on gauze piece as
Ex. P15/2; the blood stained soil as Ex. P15/3; the earth
control as Ex. P15/4; the Adhar card, DTC pass, cash of Rs.
38, visiting cards and a few papers having blood stains as Ex.
P15/5 and the blood stained handkerchief of green colour as
Ex. P15/6.
In the cross-examination, PW15 has stated that the Adhar
Card, DTC pass, money, other documents and the
handkerchief were taken out from the dead body by the crime
team after 03:30 AM. SHO started preparing rukka at about
02:30 AM. SHO had called the crime team immediately after
reaching at the spot. PW15 again stated that he had taken the
rukka at about 02:30 AM. Crime team officials had reached at
the spot before his leaving the spot for PS with rukka. He
returned to the spot at about 03:45 AM. He had not made any
arrival entry and departure entry in the Roznamcha. At the
time when PW15 reached the spot, the crime team had taken
the photographs of the spot. Crime team had left the spot at
about 07:00 AM. He had not signed on any document/ articles
prepared by crime team at the spot at the said time. The
document Ex. PW15/A was completely filled from top to
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bottom when he had signed the signed the same. The seal was
with SHO and was used by him for the case property. He does
not remember if crime team officials had also signed on the
seizure memos signed by him. He does not remember the
name of the crime team officials.
xvi.PW16 is Sh. Sujal Subai, the owner of the shop Maa Jewellers
at Gandhi Nagar, Delhi and this wintess has stated that the
accused Vinay @ Monty had come to him on 30.12.2014 at
his above said shop for the purposes of selling two rings and
one kada. The accused Vinay @ Monty had come at about
10:00 AM and therefore, he again came at about 11:00 AM.
Kada was found to be artificial. One ring was fitted with one
artificial orange red coral(Moonga stone) and the second ring
was fitted with nine zircons. The two rings were sold out by
the said accused to PW16 for an amount of Rs. 37,000/-.
PW16 melted both the above said rings into round figure of
gold and kept the coral and zircons in the drawer of his shop.
As per PW16, the receipt Ex. PW16/A was prepared by the
accused and he had written the date, his parentage and his
address on the said receipt but the remaining portion from
point B to B was written by PW16 at the request of the
accused. On 11.01.2015, 3-4 police officials along with the
accused came to his shop and asked him to produce the above
said two rings. As per PW16, the IO prepared the seizure
memo of the melted gold, the coral and the zircons vide
seizure memos Ex. PW16/B and Ex. PW16/C. The seizure
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memo pertaining to the receipt Ex. PW16/A was exhibited as
Ex. PW16/D. PW16 has further stated that on 12.02.2015, his
statement u/s 164 of the Cr.P.C. was got recorded as Ex.
PW16/E. PW16 has identified the round piece of gold as Ex.
P16/1, the coral and nine small pieces of zircons which were
already exhibited as Ex. P8/1 and Ex. P8/2.
In the cross-examination, PW16 has stated that he closed his
shop because of the present case one year ago. PW16 has
further stated that he had not given any document regarding
the ownership of the above said shop to the IO and IO had not
asked for the same. PW16 has admitted it to be correct that
his shop was situated in a crowded area. PW16 has further
stated that he was not maintaining any bill book at that time as
his work was on job basis only. PW16 does not know if
similar zircons and Moonga were easily available in the
market. The receipt Ex. PW16/A was prepared from page of
the rough diary and he was not using the said diary for
maintaining his daily work. PW16 has further stated that no
public person had come inside his shop when the accused had
come to his shop. In the presence of PW16, IO did not ask
any public person to join the investigation.
xvii. PW17 is Shyam Kishor, who was working in the office of the
deceased and this witness has deposed on the lines of the
investigation carried out by the IO in the present case. PW17
has stated that the accused Sanjay @ Devender and the
deceased Guruji was well acquainted with each other and
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there was money transaction in between the accused
Devender and the deceased Naresh Bansal @ Guruji. PW17
has stated that on 29.12.2014, at about 08:50 PM, he received
a call of the accused Sanjay @ Devender on his mobile phone
number 9899618295 from mobile number 8800107828 of the
accused Devender and he asked as to where, PW17 was.
PW17 replied that he had come to one Vankhandi Mandir in
search of the deceased. The accused asked about the keys of
the office for charging his mobile phone and PW17 told that
the keys of the office were with Pappu Chaiwala. At about
09;20 PM, PW17 went to the office and found the accused
Devender to be present. PW17 opened the office and put the
mobile phone of the accused on charge. One Mukesh brother
in law of youngr brother of the deceased alongwith one
Bhimji, owner of Brijwasi Restaurant and he himself were
talking outside the office about the deceased. At about 08:15
PM, he tried to contact the deceased and his mobile phone
was on. At about 05:15 PM, he had received a call from the
deceased and he had stated that he would come to the office
within five minutes. PW17 has stated that the accused Sanjay
had taken some amount from the deceased but he did not
know the exact amount of transaction.
In the cross-examination, PW17 has admitted it to be correct
that the deceased never gave any money to the accused Sanjay
in his presence. The deceased never showed him any
document to show that he had given any amount to the
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accused Sanjay. PW17 has admitted that in his statement
recorded by the IO, he had not stated about Mukesh, Bheemji,
about giving a call to the deceased at about 08:15 PM, about
receipt of the call from Manish at about 08:30 PM or about
receipt of the call from the deceased at about 05:15 PM.
PW17 has further stated that IO had not seized his above said
mobile phone and even the CDR of his mobile phone. IO did
not demand the bill of his mobile phone. PW17 did not see
any blood stains on the wearing clothes, shoes or body etc. of
the accused Sanjay. PW17 has admitted it to be correct that
accused Sanjay and Guruji were treating themselves as son
and father.
xviii. PW18 is ASI Sohanvir Singh and this witness got preserved
the dead body of the deceased along with Ct. Nemi in the
mortuary of MAMC Hospital.
In the cross-examination, PW18has stated that his statement
was recorded by the IO in the evening of 30.12.2014. PW17
has admitted that in his statement Ex. PW18/DX1, he had not
stated to the IO that after 2-4 minutes Inspector Vivekanand
Jha along with other police officials came to the spot, checked
the dead body, found the neck of the dead body slit, one
clutch wire was around the neck of the dead body, there was
cut mark on the cheek of the dead body, IO had taken out
some documents from the back pocket worn by the deceased
and after going through the said documents, they came to
know that name of the deceased was Naresh Bansal.
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xix. PW19 is Virender Kumar, Clerk from the Transport
Department, Delhi and this witness proved on record the
attested copy of the particulars of the car bearing no.
DL13CA3294, which was in the name of Khem Chand(father
of the accused Devender) as Ex. PW19/A and the authority
letter issued by the MLO to produce the record as Ex.
PW19/B. This witness has not been cross-examined.
xx. PW20 is ASI Narender Singh and this witness has proved on
record the PCR Form-I in respect of the information received
at about 01:15 AM on 30.12.2014 from PCR Van, OSCAR23
as Ex. PW20/A.
In the cross-examination, PW20 has admitted it to be correct
that Ex. PW20/A was not signed by him or by his superior
officers. IO had not asked PW20 to produce the copy of
relevant Daily Duty register and the certificate u/s 65B of the
Indian Evidence Act.
xxi. PW21 is Ct. Nemi Chand Yadav and this witness got
preserved the dead body of the deceased in MAMC Mortuary
along with PW18 ASI Sohanvir Singh on 30.12.2014. This
witness has deposed that on receipt of the PCR call received
by the duty officer regarding the lying of the dead body on the
service road near Shanti Van at about 01:15 AM on
30.12.2014, he along with ASI Sohavir reached the spot and
saw that male dead body aged about 70 years was lying on the
side of the road. IO Vivekanand Jha along with SI Manoj,
driver Bachu Singh also came there, crime team was called by
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the IO at the spot. PW21 joined the investigation with the IO
on 31.12.2014 and he along with the IO, SI Praveen, SI
Manoj Kumar and Ct. Bachu Singh reached at the spot,
where, on the basis of the secret information provided by the
secret informer, the accused Devender, who was present in his
WagonR car was arrested by the IO. During the testimony of
this witness, the arrest memo of the accused Devender was
marked as Mark PW21/A; personal search memo was marked
as Mark PW21/B; Disclosure statement was marked as Mark
PW21/C. PW21 has further stated that the accused got
recovered a paper cutter and one glove from the said place of
the green patti near railing of the said car. The sketch of the
paper cutter was marked as Mark PW21/D. The seizure memo
of the cutter and glove was marked as Mark PW21/E. PW21
has further stated that the accused Devender got recovered the
clothes and shoes worn by him from his house which was
marked as Mark PW21/F. PW21 has identified the one pair of
canvas shoes of black colour as Ex. P21/1, the paper cutter
having blood stains as Ex. P21/2, the hand glove as Ex. P21/3,
the black coloured jacket as Ex P21/4, the black coloured pant
as Ex. P21/5. PW21 has further stated that he identified the
black coloured shoe wrongly as Ex. P21/1, whereas, in fact,
one pair of black and white colour canvas shoes was
recovered from the house of the accused Devender which was
exhibited as Ex. P21/6.
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In the cross-examination, PW21 has stated that no public
person was found present at the spot when they reached there.
PW21 does not know the registration number of the vehicle
and the name of the driver of the vehicle in which the dead
body was taken to the hospital. PW21 does not know about
the exact information regarding the accused Devender Kumar
@ Sanjay along with his vehicle as to whether he along with
his vehicle was present at the red light or he was passing
through the said red light. The secret informer met the SHO at
Delhi Gate and he had not accompanied them from the police
station. PW21 does not remember if the secret informer met
the SHO while sitting inside the Gypsy or while standing
outside the Gypsy. PW21 has further stated that no public
person was present and joined the proceedings of the arrest of
the accused. PW21 further states that the public persons were
coming and going through the service road near the place
from where the recovery of paper cutter and glove was
effected. The paper cutter was kept in a plastic jar but PW21
does not know as to by whom, the plastic jar was brought.
PW21 further states that no documents regarding the handing
over of the seal were prepared. PW21 has further stated that
they had visited the first floor of the house of the accused and
he cannot say as to whether, the house of the accused was
double storey or triple storey. PW21 does not remember if the
house of the accused was situated at the corner of the road or
at the middle of the road and at the end of the gali. PW21
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cannot tell the name of the person who was residing on the
ground floor of the said house. PW21 does not know if the
residents of ground floor or upper floor were called to join the
proceedings.
xxii. PW22 is Sh. Chander Shekhar, Nodal Officer from Bharti
Airtel Ltd. and this witness proved on record the CAF of the
mobile phone number 9810492852 of the deceased Naresh
Bansal as Ex. PW22/A, the voter I Card of the deceased as
Ex. PW22/B and CDR location of the above said mobile
phone from 29.12.2014 to 30.12.2014 as Ex. PW22/C. This
witness also proved on record the CAF of mobile number
8800107828 of the accused Devender as Ex. PW22/D, his
voter I card as Ex. PW22/E, CDR as Ex. PW22/F, cell ID
charge as Ex. PW22/G. This witness also proved the
certificate u/s 65B of the Indian Evidence Act as Ex.
PW22/H, the written request of the IO for providing the above
said data as Ex. PW22/J. This witness has stated that the
record was provided by Sh. Vishal Gaurav, who had left the
services of the said company, to the IO vide record Ex.
PW22/K-1 to Ex. PW22/K-7. The Certificate u/s 65B of the
Indian Evidence Act issued by Vishal Gaurav was exhibited
as Ex. PW22/K-8.
In the cross-examination, PW22 has admitted it to be correct
that the call details Ex. PW22/K-1 to Ex. PW22/K-8 were not
given by him.
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xxiii. PW23 is Ct. Sachin and this witness joined the investigation
with the second IO Inspector Amrit Raj on 08.01.2015. This
witness correctly identified the accused Vinay @ Monty
present in the court on that day. During the testimony of this
witness, the pointing out memo of the place of offence at Ring
Road, near Monastery, was exhibited as Ex. PW23/A; the
pointing out memo of the place where the dead body of the
deceased was thrown was exhibited as Ex. PW23/B. The
seizure memo of the T shirt, Jeans and shoes which were got
recovered by the accused Vinay @ Monty from his house at
Gita Colony, first floor was exhibited as Ex. PW23/C. PW23
again joined the investigation with the IO on 09.01.2015 and
the pointing out memo of the place of offence by the accused
Devender was exhibited as Ex. PW23/D and the pointing out
memo of the place where the dead body was thrown by the
accused Devender was exhibited as Ex. PW23/E. PW23
identified the pair of shoes got recovered by the accused
Vinay @ Monty as Ex. P23/1, the T shirt as Ex. P23/2 and
blue coloured jeans pant as Ex. P23/3. This witness identified
both the accused who were present in the court on that day.
In the cross-examination, PW23 has stated that he had signed
the supplementary disclosure statement of the accused
Devender and the same was exhibited as Ex. PW23/D1.
PW23 has further stated that reference of CCTV and
Chowkidar was not mentioned in the pointing out memo Ex.
PW23/D and Ex. PW23/E. PW23 has admitted it to be correct
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that the passersby were passing through the Ring Road. IO
had not requested any passersby to join the proceedings.
PW23 has admitted it to be correct that public persons were
coming and going at Raj Ghat but IO had not asked any
passersby to join the proceedings in his presence. PW23 has
admitted it to be correct that there are other houses adjoining
to the house of the accused. PW23 does not remember as to
any one from the family of the accused Vinay @ Monty was
present at his house at the time of the proceedings. IO had not
asked any neighbourer or any other family member to join the
proceedings at the time of the recovery.
xxiv. PW24 is Sh. Israr Babu, the alternate Nodal Officer from
Vodafone Mobile Services Ltd. and this witness proved in the
court the CAF in the name of Badal of mobile number
9811803883 as Ex. PW24/A, the attested copies of his
Election ID card and Adhar card as Ex. PW24/B and Ex.
PW24/C, attested copy of the CDR from 29.12.2014 to
30.12.2014 as Ex. PW24/D, the certificate u/s 65B of the
Indian Evidence Act as Ex. PW24/E, the cell ID chart of
Vodafone for Delhi and NCR as Ex. PW24/F. This witness
has further stated that the said record was supplied to the IO
by the then Nodal Officer Sh. Pradeep Singh on the request of
the IO which was exhibited as Ex. PW24/G.
In the cross-examination, PW24 has stated that Sh. Pradee
Singh had not provided the above said report to the IO in his
presence.
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xxv. PW25 is ASI Jai Prakash who took the WagonR car bearing
no. DL13CA3294 of the accused Devender to FSL Rohini on
08.01.2015. The FSL officer Ms. Sunita Gupta along with the
team member lifted the exhibits from the said car i.e. the
cutting from front left side foot mat, blood stains from left
door, blood stains from left door frame together with the
Sunscreen of the car. The said exhibits were seized by the IO
vide seizure memo Ex. PW25/A and sealed with the seal of
DRGNJ-II. The relevant road certificate in this regard was
exhibited as Ex. PW25/B. This witness also identified the
cloth piece having brownish stains described as cutting from
foot mat as Ex. P25/1; Gauze cloth piece described as stains
prepared from left door of the said car as Ex. P25/2; Gauze
Cloth piece having brown stains described as stains prepared
from left door frame of the said car as Ex. P25/3; red coloured
car sun protector wrapped in white coloured cloth as Ex.
P25/4.
In the cross-examination, PW25 has stated that he had not
made any DD entry before leaving the police station,
however, the duty officer might have done so. PW25 has
admitted it to be correct that no seal was affixed on the lifted
exhibits at FSL. He cannot tell whether remaining footmat of
the car was kept back in the said car or not. He does not
remember if he had signed any documents at FSL.
xxvi. PW26 is HC Surender Kumar who joined the investigation
with the second IO Inspector Amrit Raj on 02.01.2015. This
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witness along with IO SI Amrit Raj, SI Parveen, Ct. Vinay
and Ct. Rajiv along with the accused Devender Kumar @
Sanjay went to Ganda Nala near Shamshan Ghat, Sector 22-
23, Faridabad, Haryana in search of the blood stained shirt
and seat covers of the WagonR car DL13CA3294 but the said
case properties could not be recovered. The pointing out
memo, in this regard, was exhibited as Ex. PW26/A.
In the cross-examination, PW26 has stated that no arrival/
departure entries were made either at PS Daryaganj or at PS
Mujesar, Faridabad. PW26 has further stated that there were
buildings at Ganda Nala at a distance of about 100-200 meters
but no independent witness was asked by the IO to join the
investigation and the IO did not call any diver or sweeper to
search the ganda nala to effect the recoveries.
xxvii. PW27 is Ct. Tek Bahadur and this witness joined the
investigation with IO Inspector Amrit Raj on 11.01.2015.
This witness along with the IO Inspector Amrit Raj, SI
Parveen and Ct. Krishan Gopal together with both the accused
persons went to shop no. IX/ 1044, New Post Office Vali
Gali, Gandhi Nagar. This witness has deposed about the
melted gold weighing about 18 grams by the goldsmith Sujal
Subui and about the seizure memo of the gold Ex. PW16/B,
about the seizure memo of the red coloured coral and nine
zircons vide seizure memo Ex. PW16/C. This witness
identified the melted gold in the form of round piece which
was already exhibited as Ex. P-16/1, the red coloured coral
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already exhibited as Ex. P-8/1 and nine zircons already
exhibited as Ex. P-8/2.
In the cross-examination, this witness has stated that no
departure/ arrival entries were made either at PS Daryaganj or
at PS Saran Faridabad. This witness has further stated that he
does not know as to whether any worker was present inside
the shop of the goldsmith as he did not enter the above said
shop but in the very same cross-examination, on the next
page, this witness states that he had taken the accused Vinay
@ Monty in the said shop and he had entered in the said shop.
PW27 further states that there were other shops in the vicinity
of the said shops and public persons were moving but he does
not know as to whether IO had asked any public person to
join the investigation. This witness admits that some persons
were also present in the shop. PW27 cannot tell if Sujal had
himself produced any document with regard to the ownership
of the said shop.
xxviii. PW28 is Ct. Rupa Ram and as per this witness, certain
documents were deposited by him as per the directions of
second IO Inspector Amrit Raj with FSL vide
acknowledgment Ex. PW28/A and the acknowledgment was
handed over by him to the IO.
In the cross-examination, PW28 has stated that he did not
make any DD entry on 26.03.2015 while going to FSL
Rohini. PW28 has admitted it to be correct that as per Ex.
PW28/A, 51 seats in open condition were mentioned therein.
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No DD entry with respect to the arrival of PW28 was made in
the police station.
xxix. PW29 is Dr. Arun Kumar, Senior Resident from the
department of Forensic Medicine, MAMC, Delhi and this
witness conducted the postmortem upon the dead body of the
deceased Naresh Bansal vide PM report number 1256/14 Ex.
PW29/A on record, 30.12.2014. As many as thirteen external
injuries were found on the dead body of the deceased on
external examination. The time since death was about 3/4 th of
a day(18 hours) and cause of death was hemorrhagic shock as
a result of antemortem injury to neck produced by sharp
object. All the injuries were fresh and ante-mortem in nature.
Injury no. 8 and 10 were individually and collectively
sufficient to cause death in ordinary course of nature. The
clothes including the suits, watch, socks of the deceased were
handed over to the IO after sealing the same. Viscera of the
deceased, nail clippings of the deceased and the clutch wire
were also seized and handed over to the IO. Diagram sheet
depicting the injuries was exhibited as Ex. PW29/B and the
fourteen inquest papers were exhibited as Ex. PW29/C. The
subsequent opinion in respect of the paper cutter was also
given by PW29 by mentioning that injuries number 5, 6, 7, 8,
9, 10, 12 and 13 on the body of the deceased were possible by
the paper cutter and the opinion in this regard was exhibited
as Ex. PW29/D. The diagram sheet of the weapon of offence
was exhibited as Ex. PW29/E. Subsequent opinion was also
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given by PW29 in respect of the silver coloured clutch wire
which was exhibited as Ex. PW29/F by mentioning therein
that injury no. 11 on the body of the deceased was possible
with the clutch wire. Viscera report was negative for common
poisons and alcohol. PW29 identified the shirt, two sweaters,
one baniyan, one underwear, one pair of socks, one payjami,
one muffler, one pair of shoes and one wrist watch of the
deceased as Ex. P29/1; the paper cutter which was already
exhibited as Ex. P21/2 and the clutch wire which was
exhibited as Ex. P4.
In the cross-examination, PW29 has stated that no
videography was done while conducting the postmortem and
photographs of the ligature material around the neck were not
taken. No signs of Asphyxia were noticed on the body of the
deceased. PW29 has admitted it to be correct that the paper
cutter similar to Ex. P21/2 were easily available in the market
and the same was the answer of this witness with respect to
the clutch wire.
xxx. PW30 is Ms. Riya Guha, the then ld. MM, who had recorded
the statement of the goldsmith Sujal Sabui u/s 164 of the
Cr.P.C. on 12.02.2015. The application moved by the IO was
exhibited as Ex. PW30/A, the identification memo by the IO
Sujal Sabui was exhibited as Ex. PW30/B. PW30 has stated
that she recorded the statement of PW Sujal Sabui u/s 164 of
the Cr.P.C. which was already exhibited as Ex. PW16/E and
she proved on record the certificate of correctness of the
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above said statement as Ex. PW30/C. The application filed by
the IO for obtaining the copy of the statement was exhibited
as Ex. PW30/D. PW30 has further stated that the application
for obtaining the specimen signature of the accused Vinay @
Monty on 23.03.2015 was moved by the IO and specimen
signatures on 50 pages were obtained vide specimen signature
sheet Ex. PW30/E. The orders passed by PW30 in this respect
were exhibited as Ex. PW30/F. This witness was not cross-
examined.
xxxi. PW31 is Ms. Sunita Gupta, the Senior Scientific Officer from
the Biology Division of FSL and this witness examined the
car DL13CA3294 of the accused Devender on 08.01.2015
along with the Lab Assistant Manoj for presence of blood and
other biological clues. She proved on record the detailed
report dated 30.01.2015 in this respect as Ex. PW31/A. PW31
has stated that cuttings were taken and stains were prepared.
This witness has further stated that on 11.03.2015, 22 sealed
exhibits were received in the FSL and after examining the
same, detailed report dated 15.02.2016 Ex. PW31/B was
prepared. As per the report submitted by PW31, the DNA
profile generated from the blood stained gauze of the
deceased was found to be similar with male DNA profile
generated from the documents and the amount, handkerchief,
nail clippings of the deceased, paper cutter, pair of shoes, foot
mat and car sun protector. The report was forwarded to
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concerned SHO vide forwarding letter Ex. PW31/C. The
allelic data was exhibited as Ex. PW31/D.
In the cross-examination, PW31 has stated that she does not
remember whether any request letter was sent by the IO to
FSL on 08.01.2015 for examination of the said car. She does
not know whether any letter was written by HC Jai Prakash to
the officials of FSL. PW31 states that the photo division of
the FSL had taken the photographs of the car but no such
photographs were filed on record. PW31 has admitted it to be
correct that in the report Ex. PW31/A, she had not mentioned
the details of cuttings taken from the car, stains prepared and
exhibits seized from the car. PW31 has admitted it to be
correct that lifted exhibits were not sealed while handing over
the same to HC Jaiprakash and that the exhibits were also not
sealed by HC Jaiprakash at FSL premises in her presence.
PW31 had not taken any receipt of the exhibits which were
handed over to HC Jaiprakash. PW31 had not mentioned the
number and details of Gauze cloth pieces in which the stains
were lifted. PW31 has admitted it to be correct that signatures
of her team members were not obtained on report Ex.
PW31/A. She has admitted it to be correct that in her report
Ex. PW31/B, the word human blood has not been mentioned.
She has admitted it to be correct that as per the police
forwarding letter Ex PW31/DX1, she was asked to specify as
to whether blood was the human blood but she failed to
specify the answer to above said query.
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xxxii. PW32 is ASI Surender Singh from PCR central zone and this
witness has proved the call book of PCR van Oscar 23 to
show that SI Manohar Lal was on duty from 08:00 PM on
29.12.2014 to 08:00 AM on 30.12.2014. He has proved on
record the relevant entries in this regard running into five
pages as Ex. PW32/A.
In the cross-examination, PW32 has admitted it to be correct
that he does not have any personal knowledge of the present
case.
xxxiii. PW33 is SI M.K. Manoj and this witness joined the
investigation with IO/ SHO Vivekanand Jha on 20.12.2014
after receipt of DD no. 2A and at about 01:15 AM. This
witness has deposed on the lines of the investigation carried
out by the IO and has testified that the blood sample, blood
stained wire and earth control were lifted from the spot and
seized vide seizure memo already exhibited as Ex PW15/A.
This witness has also testified about the seizure memo of the
blood stained piece of cloth already exhibited as Ex. PW15/B;
about the seizure memo of the Adhar Card, DTC pass, visiting
cards and cash of Rs. 38/- already exhibited as Ex. PW15/C;
about the seizure memo of the blood stained handkerchief
already exhibited as Ex. PW15/E and about the seizure memo
of the viscera, wire which was tied around the neck of the
deceased, clothes of the deceased, blood gauze and nail
clippings already exhibited as Ex. PW15/E. During the
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testimony of this witness, the site plan prepared by the IO was
exhibited as Ex. PW33/A.
This witness again joined the investigation with IO
Vivekanand Jha, SI Parveen, Ct. Nemi Chand and Ct. Bachu
Singh on 31.12.2014. This witness has testified about the
arrest of the accused Devender @ Sanjay vide arrest memo
already exhibited as Ex. PW21/A; Personal Search memo
already exhibited as Ex. PW21/B; disclosure statement of the
accused Devender already exhibited as Ex. PW21/C. The
seizure memo of the car bearing no. DL13CA3294 was
exhibited as Ex. PW33/B during the testimony of this witness.
This witness has deposed that the accused Devender @
Sanjay got recovered the blood stained paper cutter and blood
stained hand glove from the green belt near the main gate of
Shantivan. This witness has testified about the sketch of the
paper cutter already exhibited as Ex. PW21/D and about the
seizure memo of the paper cutter and the hand glove already
exhibited as Ex. PW21/E. This witness has further stated that
the accused Devender also got recovered pant, shoes, jacket
from his home bearing no. 10/119 near Gurudwara, Geeta
Colony vide seizure memo already exhibited as Ex. PW21/F.
This witness correctly identified the car bearing no.
DL13CA3294 which was exhibited as Ex. PW33/P1. PW33
has identified the blood stained printed cloth piece already
exhibited as Ex. P-15/1; blood on gauze piece already
exhibited as Ex. P-15/2; blood stained soil(earth control)
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already exhibited as Ex. P-15/3; earth control already
exhibited as Ex. P-15/4; Adhar Card, DTC pass, some visiting
cards, few papers and cash of Rs. 38/- already exhibited as
Ex. P-15/5; blood stained handkerchief of green colour
already exhibited as Ex. P-15/6; the clothes of the deceased
such as the shirt, two sweaters, one baniyan, one underwear,
one pair of socks, one payjami, one muffler, one pair of shoes
and one wrist watch already exhibited as Ex. P-29/1; the
clutch wire already exhibited as Ex. P-4; the paper cutter
already exhibited as Ex. P-21/2; the hand glove already
exhibited as Ex. P-21/3; one black coloured jacket got
recovered by the accused Devender Kumar already exhibited
as Ex. P-21/4; black coloured pant got recovered by the
accused Devender already exhibited as Ex. P-21/5 and one
pair of black and white coloured canvas shoes got recovered
by the accused Devender as Ex. P-21/6.
In the cross-examination, PW33 has stated that no departure/
arrival entry was made by him. PW33 has further stated that
no independent or public witness was joined by the IO either
at the time of the arrest of the accused Devender or at the time
of recovery of the paper cutter, hand glove or the articles from
his house. This witness has further stated that crime team had
not seized anything in his presence and even the clutch wire
was not seized from the spot. This witness admits that Geeta
Colony is a densely populated area and there are many shops
situated there. This witness does not remember if IO had
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requested any independent person of the locality to join the
investigation. He does not remember if the photographs or the
videography of the accused Devender was done. This witness
further states that the seizure memos were not signed by
anyone else besides him and the IO. IO had not requested any
public person to sign the same. No written notice was given to
any public person where the car was seized. PW33 does not
remember if the IO had taken any photographs of the vehicle
WagonR car to show that blood stains were present on the
conductor side gate as well as on the foot mat of the
conductor side. Signatures of the family members of the
accused Devender were not obtained on the documents which
were prepared at his house. He does not remember the
dimensions of the room at the second floor from where the
recovery was effected or even the number of rooms at the
second floor of the house of the accused Devender. This
witness has admitted it to be correct that the seizure memo
Ex. PW33/B i.e. the seizure memo of the WagonR car does
not mention that the front windscreen of the car was broken.
PW33 is not visible in any of the photographs Ex. P-6/1 to Ex.
P-6/14.
xxxiv. PW34 is SI Parveen Badsara and this witness joined the
investigation with IO Vivekanand Jha, SI Manoj, Ct. Bachu,
Ct. Nemi Chand on 31.12.2014. This witness has deposed on
the very same lines on which PW33 SI MK Manoj has
deposed on the aspect of the arrest of the accused Devender,
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recovery of the paper cutter and hand glove and about the
seizure of car DL13CA3294. This witness again joined the
investigation with the second IO Inspector Amrit Raj, Ct.
Rajeev, HC Surender and Ct. Vineet on 02.01.2015 when the
above said police officials went to PS Mujesar, Faridabad in
search of the blood stained shirt and blood stained seat covers,
which were thrown in the ganda nala near Shamshan Ghat by
the accused Devender and which could not be recovered. The
pointing out memo of the Ganda Nala was already exhibited
as Ex. PW26/A. The khanatalashi of the house of the in-laws
of the accused Devender was exhibited as Ex. PW34/A. This
witness again joined the investigation with the second IO
Inspector Amrit Raj on 08.01.2015 and this witness has also
deposed about the arrest of the accused Vinay @ Monty vide
arrest memo already exhibited as Ex. PW12/A; about the
personal search memo of the accused Vinay already exhibited
as Ex. PW12/B; about the disclosure statement of the accused
Vinay already exhibited as Ex. PW12/C; about the pointing
out memo of monastery, Ring Road, already exhibited as Ex.
PW23/A; about the pointing out memo about the place where
the dead body was thrown already exhibited as Ex. PW23/B;
about the seizure memos of the T Shirt, jeans and shoes
allegedly got recovered by the accused Vinay from his house
no. 1123/61, Multani Mohalla, Geeta Colony, Delhi already
exhibited as Ex. PW23/C. This witness again joined the
investigation with the second IO Inspector Amrit Raj, Ct. Tek
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Bahadur and Ct. Krishan Pal on 11.01.2015 and has deposed
about the visit to the shop of the jeweller at Gandhi Nagar;
about the seizure memo of the round piece of gold weighing
18 grams already exhibited as Ex PW16/B; about the seizure
memo of the coral and nine zircons already exhibited as Ex.
PW16/C and about the seizure memo of the receipt already
exhibited as Ex. PW16/D.
PW34 has also deposed about the visit of the police officials
to PS Saran, Faridabad from where the police party went to
shop no. 162R, Tikona Park, NIT Faridabad, from where, the
accused Devender had got changed the windscreen of his
WagonR car. This witness has deposed about the seizure
memo of the broken glass from the above said shop owned by
Gulshan Verma already exhibited as Ex. PW13/P2. This
witness has identified the WagonR car already exhibited as
Ex. PW33/P1. This witness identified the paper cutter already
exhibited as Ex.P-21/2; the hand glove already exhibited as
Ex. P-21/3; the T shirt of the accused Vinay @ Monty already
exhibited as Ex. P-23/2; the jeans pant of the accused Vinay
already exhibited as Ex. P-23/3; the pair of shoes of the
accused Vinay already exhibited as Ex. P-23/1; the melted
round piece of gold already exhibited as Ex. P-16/1; one coral
already exhibited as Ex. P-8/1 and nine pieces of zircon
already exhibited as Ex. P-8/2.
In the cross-examination, PW34 has stated that no departure
entry was made by him on 31.12.2014. PW34 has further
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stated that when they reached at Shantivan from ITO side and
facing towards the back side of Red Fort, the WagonR car
bearing registration no. DL13CA3294 was also found stained
at the red light facing towards Old Kotwali Police Station
Building. This witness has further stated that none of the
public persons joined the investigation despite the request by
the IO but no notice was served upon them. The WagonR car
was not photographed or videographed at Shantivan Red
Light. The seizure memo of the car Ex. PW33/B does not bear
the signatures of this witness. This witness has admitted it to
be correct that the signatures of the accused Devender Kumar
are in a different ink on Ex. PW33/B. The custody of the said
car was given to this witness at about 11:00 AM for taking the
same to the police station but no handing over memo in this
regard was prepared. The photographs of the WagonR car
were not clicked even after reaching the police station and no
DD entry was lodged. The keys of the car remained with this
witness. PW34 has admitted it to be correct that Ex. PW21/E
i.e. the pointing out and seizing memo of the blood stained
paper cutter and glove does not bear his signatures and Ex.
PW21/D i.e. the sketch of the blood stained paper cutter also
does not bear his signatures. No local police personnel joined
them in the raid from PS Saran, Faridabad on 11.01.2015.
PW34 has admitted it to be correct that the wind shield/ front
glass of the different WagonR cars are similar in appearance.
PW34 has stated that from the back side of his shop, the shop
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owner had produced the broken glass but there was no
identification mark on the same. PW34 has admitted it to be
correct that no independent witness joined the investigation
either on 02.01.2015 or on 11.01.2015. No public person was
asked to join the investigation at the time of interrogation of
the accused Vinay on 08.01.2015 outside the court despite the
availability. PW34 has stated that no authorized valuer was
called by the IO in his presence to ascertain the genuineness
of the gold, zircons and coral.
xxxv. PW35 Ms. Ambika Singh, the ld. MM who had got conducted
the TIP of the case property i.e. of one coral and nine zircons
on 09.03.2015. The coral and nine zircons were identified by
Pankaj Bansal, the son of the deceased. The application filed
by the IO for TIP proceedings was exhibited as Ex. PW35/A.
The TIP proceedings were already exhibited as Ex. PW9/C.
The certificate of correctness issued by PW35 in respect of
the TIP proceedings was exhibited as PW35/B and the
application for providing the copy of the TIP proceedings by
the IO was exhibited as Ex. PW35/C.
In the cross-examination, PW35 has denied the suggestion
that the mixing material which was brought by the IO was not
similar to the case property which was to be identified.
xxxvi. PW36 is Avdesh Kumar, Senior Scientific Officer from FSL
and this witness has proved on record his report Ex PW36/A
in respect of the writing of the accused Vinay @ Monty. This
witness gave the opinion that the person who wrote the red
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enclosed writing/ figure stamp pad Mark S1 to S50 also wrote
the red enclosed writing/ figure similarly stamp pad Mark Q1
to Q10.
In the cross-examination, PW36 has admitted it to be correct
that he was not asked by the IO to check the ink as well as the
pen which was used in writing the words from Q1 to Q10 and
the portion from S1 to S50. PW36 has admitted it to be
correct that in his report, it was not mentioned as to which
pen/ ink was used in writing the words from Q1 to Q10 and
the portion S1 to S50.
xxxvii. PW37 is HC Rampal, who was posted as MHC(M) with PS
Daryaganj on 30.12.2014, 31.12.2014, 08.01.2015,
11.01.2015, 26.02.2015 and 11.03.2015. This witness has
deposed that first IO Inspector Vivekanand Jha had deposited
eleven sealed pullandas along with the respective seizure
memos on 30.12.2014 and the relevant entry in register no. 19
at serial no. 2663 was exhibited as Ex. PW37/A. Ex. PW37/B
was the relevant entry in register no. 19 at Serial no. 2664 in
respect of the WagonR car bearing no. DL13CA3294
deposited by the IO on 31.12.2014 and Ex. PW37/C was the
relevant entry in register no. 19 in respect of the four sealed
pullandas and one sealed envelope deposited by the second IO
Inspector Amrit Raj on 08.01.2015. Ex. PW37/D was the
relevant entry in respect of the four sealed pullandas along
with respective copies of the seizure memo deposited by the
IO on 11.01.2015. Ex. PW37/E was road certificate no.
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7/21/15 by which the WagonR car was sent to FSL on
08.01.2015. Ex PW37/F was the road certificate no. 16/21/15
by which IO Amrit Raj collected the sealed pullandas of the
paper cutter and took the same to MAMC Hospital on
26.02.2015. Ex. PW37/G was RC no. 19/21/15 pertaining to
collection of 11 sealed pullandas for depositing the same wit
FSL Rohini on 11.03.2015 and Ex. PW37/H was RC no.
20/21/15 pertaining to the collection of the sealed viscera of
the deceased on 11.03.2015 for depositing the same with FSL
Rohini. This witness has stated that no tampering took place
with the above mentioned case properties during his custody.
In the cross-examination, PW37 has admitted it to be correct
that as per register no. 19, the keys of the WagonR car were
not deposited in the Malkhana and he could not tell as to with
whom, the keys were. This witness has admitted it to be
correct that the vehicle was parked in the open compound of
the police station.
xxxviii. PW38 is Sh. M.L. Meena, Senior Scientific Officer from the
Chemistrty Division of FSL Rohini and this witness proved
on record his detailed report in respect of the viscera of the
deceased as Ex. PW38/A by mentioning therein that no
common poisons, alcohol, etc. were found in the viscera of
the deceased. This witness was not cross-examined by the ld.
Defence counsels.
xxxix. PW39 is the first IO Inspector Vivekanand Jha and this
witness has deposed on the lines of the investigation carried
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out by him. This witness has testified about the arrival of the
police team at the scene of the crime on 30.12.2014 on receipt
of DD entry no. 2A at about 01:15 AM; about the seizure of
the exhibits collected from the spot of the crime; about the
inspection of the scene of the crime by the crime team; about
the lodging of the FIR by sending the rukka to the police
station through Ct. Bachu Singh about the preparation of the
site plan; about the preserving of the dead body of the
deceased in the mortuary of MAMC; about the identification
of the dead body; about the recording of the statements of the
witnesses u/s 161 of the Cr.P.C.; about the postmortem upon
the dead body of the deceased and about the CDR analysis of
the mobile phone number 9810492852 of the deceased,
mobile phone number 8800107828 of the accused Devender
and about the mobile phone number 9811803883 pertaining to
the accused Vinay @ Monty. This witness has also deposed
about the arrest of the accused Devender @ Sanjay; about the
seizure memo of the WagonR car of the accused Devender @
Sanjay; about the recovery of the paper cutter and blood
stained right hand glove from the scene of the crime; about
the recovery of the articles from the house of the accused
Devender. During the testimony of this witness DD no. 66B
dated 29.12.2014 in respect of the missing of the deceased
Naresh Bansal was exhibited as Ex. PW39/A; DD no. 2A
dated 30.12.2014 was exhibited as Ex. PW39/B; this witness
identified the blood stained gauze piece pertaining to the
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deceased as Ex. PW39/P1; nail clippings of the deceased as
Ex. PW39/P2; the samsung mobile phone recovered from the
possession of the accused Devender along with the cash of
Rs. 140 was exhibited as Ex. PW39/P3.
In the cross-examination, PW39 has stated that he had not
asked the mobile crime team to videograph the spot; no
security guard was found nearby the place where the dead
body was found; no dog squad had visited the spot; no tyre
mark or foot mark were noticed near the dead body; PW39
has further stated that the family members of the deceased
have not informed about the weight and make of the jewelries
i.e. two rings and kada worn by the deceased. This witness
has further stated that the sons of the deceased had not
suspected anyone while making their statements to him. He
had not taken the photographs of the dead body by his mobile
phone and no eye-witness was found there. PW39 does not
remember as to how many photographs were taken by the
crime team. PW39 had not removed the clutch wire which
was wrapped around the neck of the deceased. PW39 did not
send any written requisition to any public person to join the
proceedings. This witness does not remember as to why, he
had not seized the watch of the deceased at the spot. This
witness has stated that he never saw the sim card of the
mobile phone of the deceased as the same could not be
recovered. Since the mobile phone was also not recovered,
IMEI number could not be physically verified. The secret
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information received on 31.12.2014 from the secret informer
regarding the whereabouts and name of the accused Devender
Kumar was not deduced into writing. The secret information
was received at about 08:30 AM near Delhi Gate Red Light
when they were going towards Geeta Colony in search of the
accused Devender. This witness has admitted it to be correct
that the Red Light at Shantivan is not visible from Delhi Gate.
No notice was served upon public persons who were
requested to join the investigation. Generally vehicular traffic
remains on the red light at Shantivan. No site plan of the place
was prepared from where the accused Devender was
apprehended. PW39 does not remember as to whether any
photography or videography of the car of the accused was
done or not. He also does not remember as to whether any
request was sent by him to FSL Rohini for inspecting the car
of the accused. He does not remember if the car of the
accused was parked in the police station in the open area or in
the covered area. PW39 states that keys of the said car were
deposited in the malkhana. PW39 states that investigation of
the case remained with him only till 01.01.2015.
PW39 has further stated that no public witnesses could be
joined at the house of the accused Devender despite making
requests. However, no written notice was served upon those
persons. Accused Devender was living at the second floor of
the house and his family members i.e. wife and children were
present there. No site plan of the second floor was prepared.
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xl. PW40 is the second IO Inspector Amrit Raj and this witness
has deposed on the lines of the investigation carried out by
him. This witness has deposed that on 02.01.2015, further
investigation of the present case was assigned to him. During
the testimony of this witness, the disclosure statement of the
accused Vinay @ Monty was exhibited as Ex. PW40/A; the
supplementary disclosure statement of the accused Devender
Kumar @ Sanjay recorded on 10.01.2015 was exhibited as Ex
PW40/B; the application for placing subsequent opinion of
wire was exhibited as Ex. PW40/C; application for placing
FSL result of biology division was exhibited as Ex. PW40/D;
the application for placing FSL result of chemistry division
was exhibited as Ex. PW40/E; the application for placing on
record the FSL result of the documents division was exhibited
as Ex. PW40/F and the acknowledgment of depositing of the
case properties with FSL were exhibited as Ex. PW40/G and
Ex. PW40/H. This witness also identified the case properties
which have been exhibited during the testimonies PW23 Ct.
Sachin, PW25 ASI Jaiprakash, PW8 Manish Bansal. This
witness also identified the broken front glass of the WagonR
car of the accused Devender Kumar @ Sanjay as Ex. P40/P1.
In the cross-examination done by the ld. Counsel for the
accused Vinay @ Monty, PW40 has stated that no public
person had joined the investigation when the accused Vinay
@ Monty was being interrogated outside the court room.
PW40 has further stated that the police custody of the accused
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Vinay @ Monty was sought on the ground of recovery and
interrogation etc. but he did not remember exactly if the exact
place and articles which were to be recovered were mentioned
in the brief disclosure statement of the accused Vinay @
Monty recovered on 08.01.2015. PW14 has further stated that
no public person had witnessed the seizure memo Ex.
PW23/C i.e. the seizure memo pertaining to the T shirt, jeans
and shoes allegedly got recovered by the accused Vinay @
Monty. No local police of PS Gandhinagar joined him when
he had visited the house of the accused Vinay @ Monty.
PW40 has admitted it to be correct that in the detailed
disclosure statement Ex. PW40/A of the accused Vinay @
Monty, the details of jeweller came on record. PW40 further
states that he had made the departure entry before leaving the
police station on 11.01.2015 but he did not remember the said
DD entry. PW40 further states that they reached at the
jeweller shop of Sujal Subui at around 11:30 AM. PW40 has
admitted it to be correct that the said shop was situated in the
market area and the market was opened when they reached
there. He does not know if the shop of Sujal Subui was a
rented one or was owned by him. He had not taken any
documentary proof which could reflect that Sujal Subui was
running a jewellery shop. Only Sujal Subui was found present
at his shop. Seizure memos Ex. PW16/C and Ex. PW16/D
were prepared at the shop of Sujal Subui. He does not
remember if there was any other jewellery shop nearby the
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shop of Sujal Subui. He cannot tell the percentage of purity of
recovered melted gold, zircons and coral. No videography
was done at the shop of Sujal Subui during the recovery. He
does not remember if the receipt Ex. PW16/A was separated
from any diary in his presence or it was already in a separate
condition. He had not taken the specimen handwriting of the
words mentioned from portion B to B in Ex. PW16/A from
the accused Vinay @ Monty. He does not remember if he had
enquired from Sujal that who was the author of the said
portion from B to B of Ex. PW16/A. PW14 has admitted it to
be correct that the name of Sujal Subui is not mentioned in the
receipt Ex. PW16/A. He cannot tell the percentage of purity
of the recovered melted gold, zircons and coral. PW40 has
admitted it to be correct that the signatures of Sujal Subui
were not obtained on the diary paper. No public persons
joined the investigation at the shop of Sujal Subui except
him. PW40 further states that he had made the arrival entry in
the police station on 11.01.2015 after returning from the
investigation on that day but he did not remember the time
and DD number of the same. The mobile number
9811803883, which was allegedly being used by the accused
Vinay @ Monty, was in the name of his brother Badal but
statement of Badal was not recorded u/s 161 of the Cr.P.C..
In the cross-examination done by the ld. Counsel for the
accused Devender Kumar @ Sanjay, PW40 has stated that on
09.01.2015 and 10.01.2015, he had recorded the
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supplementary statement of the accused Devender Kumar @
Sanjay and that no public person witnessed the disclosure
statement of the accused Devender Kumar. PW40 further
states that he had made the departure DD entry on 02.01.2015
while leaving the PS Daryaganj at about 11:00 AM for
Faridabad but he does not remember as to whether the said
DD entry has been placed on record. He also does not
remember the number of the same. PW40 also does not
remember as to whether the DD entry by which arrival was
made at PS Mujesar, Faridabad at around 01:00 PM has been
placed on record or not. No local police from PS Mujesar
joined the IO. PW40 does not remember as to how many
other car accessories shops were situated near the Jagdamba
Car World. No public person except Chiranjeet Arora and
Yusuf had joined the investigation at Jagdamba Car World.
No seizure was made at the shop of Jagdamba Car World.
PW40 further states that he went to 416 Kucha Brijnath,
Chandni Chowk, Delhi at around 02:30 – 03:00 PM on
02.01.2015, he did not seize any document to show that
Shyam Kishor was working as a clerk/ munshi in the office of
the deceased. Witness Shyam Kishor did not show any
documentary proof to show that deceased had given some
loan amount to the accused Devender Kumar @ Sanjay and
no documentary proof regarding the demand of the loan
amount was also given by the witness Shyam Kishor. From
the office of the deceased, PW40 went to the polce station at
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about 05:00 PM but he does not remember whether he had
made any arrival entry in the police station or not. PW40 did
not seize any bill of the mobile of the mobile number
9899618295 pertaining to Shyam Kishor. He does not
remember whether he had obtained CAF and CDR of the
mobile number of Shyam Kishor or not. PW40 also states that
he does not remember the DD entry of the arrival made at PS
Saran Faridabad. No local police from PS Saran Faridabad
joined the police party. No bill, rough estimate or any other
document was seized on 11.01.2015 from the shop where the
accused Devender allegedly got changed the broken front
glass of his WagonR car. PW40 cannot tell that in the absence
of any matching serial number, a particular front screen
cannot be associated with a particular WagonR car. PW40 did
not try to match the serial number of the broken front screen
with the WagonR car involved in the present case. PW40 did
not take the help of any expert in this regard. PW40 further
states that he collected 14 photographs of the scene of the
crime from the office of Mobile Crime Team but no memo
was prepared in this regard. No negatives of the photographs
were collected. PW40 further states that the piece of footmat
of the car was cut by the expert of FSL but he was not present
at that time. HC Jaiprakash handed over to him the above
mentioned piece in a sealed envelope. PW40 also answered in
respect of the red coloured car sun protector in the same way
as mentioned in the preceding line.
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DROPPING OF THE WITNESSES BY THE PROSECUTION
29.Perusal of the record of the case reveals that Ct. Arvind Kumar
was dropped from the list of witnesses as he merely verified the
addresses of the accused persons in view of the statements of the
ld. Addl. PP for the State recorded by the ld. Predecessor of this
court on 27.05.2017.
STATEMENT OF THE ACCUSED U/S 313 OF THE Cr.P.C.
30.After conclusion of the PE, the statements of the accused persons
namely Vinay @ Monty and Devender Kumar @ Sanjay were
recorded u/s 313 of the Cr.P.C. on 03.07.2024 and 20.07.2024
respectively, whereby, the accused persons denied all the
incriminating evidence put to them. The accused Vinay @ Monty
has taken up the plea that he has been falsely implicated in the
present case. IO had obtained his signatures/ thumb impressions
on some blank papers which were converted into different
memos to falsely implicate him in the present case. No recovery
was effected at his instance and that he was innocent. Similarly,
the accused Devender Kumar @ Sanjay has taken up the plea
that he was innocent and falsely implicated in the present case.
DEFENCE EVIDENCE
31.Accused Vinay @ Monty has not led any evidence in defence.
32.However, the accused Devender Kumar @ Sanjay has led the
evidence in defence and he has examined two witnesses in his
defence evidence including himself. The accused Devender
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Kumar @ Sanjay has examined Sh. Jagdish Kumar, his
neighbour as DW1 and he himself as DW2.
33.DW1 Sh. Jagdish Kumar, in his examination-in-chief, has stated
that the accused Devender Kumar @ Sanjay and his family
members are known to him as he was residing in the same area in
which the accused Devender Kumar and his family were
residing. DW1 has deposed that on 31.12.2014 at about 10:00
PM, he had seen that a number of public persons had gathered
near the house of the said accused Devender Kumar and a police
gypsy was also stationed there, in which, three police personnel
were present. DW1 along with other public persons followed the
police officials into the house of the said accused. The police
officials conducted the search of the upper floor, first floor,
second floor and roof of the house of the accused Devender
Kumar but nothing incriminating was recovered. The mother and
sister of the above said accused was also present in the house at
that time but the accused was not accompanying the above said
police officials during the proceedings of search.
34.DW1, in the cross-examination, has stated that the family of the
accused Devender Kumar is known to him for the last thirty
years. DW1 had further stated that he was in the business of
supplying of the clothes in a tempo and on 31.12.2014, it was
Wednesday of the week. On the said day, he left his home for
supplying of the clothes at about 11;00 AM and returned to his
home at about 05:00 PM. DW1 has further stated that the mother
and sister of the accused Devender Kumar were present in the
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house at the time when the police reached there but he does not
know as to whether the accused Devender was present in the
house at that time or not. Police remained in the house of the
accused Devender for about 30-45 minutes. DW1 did not lodge
any complaint against the police officials either before the senior
police authorities or in the court, though, they had not disclosed
the reason of visiting the house of the accused.
35.DW2 is the accused Devender Kumar himself and this witness, in
his examination-in-chief, has stated that he was knowing the
deceased as he was running his office near his work place at
Chandni Chowk, Delhi. DW2 has further stated that the deceased
was like his father and he used to address him uncleji. He never
borrowed any money from the deceased at any point of time. On
30/31.12.2014, he was present at his workplace at Chandni
Chowk, Delhi, when, 2-3 police officials came there at about
03:00 PM and took him to PS Daryaganj on the pretext of
making some enquiry. The police officials, in the police station,
asked DW2 as to whether he had committed the murder of the
deceased but after hearing the said words from the mouth of the
police officials, he got shocked and came to know that Naresh
Bansal had been killed. DW2 told the police officials that he had
not killed the deceased Naresh Bansal but the police officials
detained him in the lockup and obtained his signatures on many
blank papers. During enquiry, DW2 came to know that Naresh
Bansal had been killed by some unknown person in the area of
Daryaganj. The police officials never took him to the place of
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occurrence or to his house. He did not get recovered the cutter,
glove, blood stained clothes and shoes. During custody, the
police officials beat him and pressurize him to make disclosure
statement regarding the killing of the deceased. He did not make
any disclosure statement to the police. When he was taken to the
police station by the police officials, he saw that his father was
already detained in the police station by the police. DW2 has
stated that the documents such as the disclosure statement
MarkP-21/C, Ex. PW23/D1, PW40/B, seizure memo of WagonR
Car Ex. PW33/B, Mark P20/E, sketch mark PW21/D, Mark
PW21/F, Ex. PW13/P2, Ex. PW34/A, Ex. PW26/A, Ex. PW23/B
and Ex. PW23/D were bearing his signatures but his signatures
on the above said documents were never obtained and he had
merely signed the blank documents. DW2 has further stated that
he was suffering from Fungal infection in his left foot for a long
time and he was not able to wear sports shoes or any other kind
of shoes. DW2 has further stated that he was able to drive only a
two wheeler and not able to drive any four wheeler. DW2 has
further stated that the WagonR car bearing no. DL13CA3294
was belonging to his father but he never used to drive the same.
DW2 has further stated that he used to make calls to the deceased
and sometimes, the deceased also used to make calls to him,
being the neighbours. DW2 has further stated that his father was
a transporter and the financial condition of his family was well
since his birth. DW2 has further stated that the case property i.e.
the black coloured jacket Ex. P-21/4, the black coloured pant Ex.
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P-21/5 and the black and white canvas shoes Ex. P-21/6 was not
belonging to him.
36.In the cross-examination by the ld. Addl. PP for the State, DW2
has stated that three police officials had taken him to PS
Daryaganj from his office. DW2 admits that in the month of
December 2014, he was using his mobile number 8800107828
but he did not remember the mobile number of the deceased
Naresh Bansal. DW2 further states that in the intervening night
of 29/30.12.2014, he was present at his house and he did not go
anywhere with the accused Vinay @ Monty. DW2 never
borrowed any money from the deceased Naresh Bansal. DW2 did
not raise any objection to the police in the police station, when,
his signatures were being obtained on blank documents. By way
of volunteer, DW2 has stated that his signatures were obtained on
blank papers by the police forcibly. He did not get any
opportunity to file the complaint before the Senior Police
Officers as he remained in jail. DW2 has further stated that his
family members were also threatened by the police officials by
confining his father in the police station for about 3 days and his
family members also did not lodge any complaint with the senior
police officials, being frightened.
FINAL ARGUMENTS
37.During the course of final arguments, ld. Addl. PP for the State
has argued that the present case is squarely based on
circumstantial evidence and there is no eye-witness to the brutal
murder of the deceased Naresh Kumar Bansal which took place
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in the intervening night of 29/30.12.2014 and there is no last seen
evidence as well. It has been argued that however, the
prosecution has been able to prove the guilt of the accused
persons namely Devender Kumar @ Sanjay and Vinay @ Monty
as the accused Devender @ Sanjay was having the motive to kill
the deceased. It has been argued that the recovery of various
articles belonging to the deceased has been effected from the
possession of the accused persons and as such, the prosecution
has been able to prove that the chain of circumstances is
complete and the recovery effected from the accused persons is
sufficient to link the accused persons with the crime. It has been
further argued that the accused Devender got recovered the blood
stained paper cutter Ex. P21/2, the blood stained hand glove Ex.
P21/3 from the scene of the crime and the accused Devender
Kumar also got recovered the clothes worn by him at the time of
the offence from his house bearing no. 10/119, near Gurudwara,
Gita Colony, Delhi in the form of a black coloured jacket as Ex.
P21/4, black coloured pant as Ex. P21/5 and one pair of black
and white coloured shoes as Ex. P21/6. It has been further
argued that similarly, the accused Vinay @ Monty got recovered
from his house bearing House no. 1123/61, Multani Mohalla,
Gita Colony, Delhi, one pair of shoes Ex. P23/1, T shirt Ex.
P23/2 and a blue coloured jeans pant Ex. P23/3, which were
worn by him at the time of commission of the offence. It has
been further argued that the red coloured coral and nine zircons
which were exhibited as Ex. P8/1 and Ex. P8/2 which were
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studded in the rings which were worn by the deceased were
identified by PW9 Pankaj Bansal during the TIP proceedings
exhibited as Ex. PW9/C. It has been further argued that
prosecution has been able to prove the recovery of the round
piece of cloth Ex. P16/1, the coral Ex. P8/1, nine small pieces of
zircons Ex. P8/2 and the receipt for the amount of Rs. 37,000/-
Ex. PW16/A with the aid of the testimony of the goldsmith Sujal
Subui who was examined by the prosecution as PW16. It has
been further argued that the prosecution has also been able to
prove the guilt of the accused persons with the aid of the
testimonies of the witnesses from the mobile companies i.e.
PW22 Chandra Shekhar and PW24 Israr Babu, who have proved
on record that mobile number 8800107828 was in the name of
the accused Devender, the mobile number 9810492852 was in
the name of the deceased Naresh Bansal and the mobile number
9811803883 was in the name of Badal(the brother of the accused
Vinay @ Monty). It has been further argued that the CDR
analysis of the mobile phones of the accused persons and that of
the deceased reveals that the accused persons were present on the
scene of the crime, in the vicinity of the scene of the crime before
and after the commission of the crime.
38.Ld. Addl. PP for the State has further argued that Ms. Sunita
Gupta, Senior Scientific Officer from Biology Division who has
been examined as PW31 has proved on record the FSL report Ex.
PW31/B. It has been further argued that PW36 has also proved
on record the writing of the accused Vinay @ Monty on the
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receipt Ex. PW16/A by his report Ex. PW36/A. It has been
further argued that forensic evidence in the form of the above
said two witnesses has been able to prove the guilt of the accused
persons beyond any reasonable doubt. It has been further argued
that the above said forensic evidence is a vital link in the chain of
circumstances making it complete.
39.It has been further argued by ld. Addl. PP for the State that PW21
Ct. Nemi Chand, PW33 M.K. Manoj, PW34 SI Praveen Badsara
and PW39 Inspector Vivekanand Jha are the main recovery
witnesses qua the accused Devender Kumar @ Sanjay. It has
been further argued that PW27 Ct. Teg Bahadur, PW34 SI
Praveen Badsara and PW40 Second IO Inspector Amrit Raj are
the main recovery witnesses qua the accused Vinay @ Monty. It
has been further argued that PW17 Shyam Kishor is the witness
to prove the motive on behalf of the accused persons to commit
the crime. It has been prayed that the accused persons be held
guilty of the charges framed against them as the prosecution has
has been able to bring home the guilt of the accused persons
beyond any reasonable doubt.
40.Whereas, on the other hand, ld. Counsel for the accused
Devender Kumar @ Sanjay has vehemently argued that the
recovery witnesses examined by the prosecution are not reliable
and trustworthy at all. It has been argued that there is no public
witness either to the recovery or to the arrest of the accused
Devender rendering not only the arrest of the accused Devender
but also the alleged recovery at his instance highly improbable. It
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has been further argued that the place from where the dead body
was recovered or from where the alleged weapon of offences i.e.
the paper cutter and the hand glove were recovered, is a public
place accessible to all. It has been further argued that the mobile
phone of the deceased was not recovered. It has been further
argued that there is no evidence on record to show that even a
single penny was borrowed by the accused Devender Kumar @
Sanjay from the deceased and as such, the prosecution has utterly
failed to prove on record the motive on behalf of the accused
persons. It has been further argued that the recovery is highly
inadmissible as per the provisions of Section 27 of the Indian
Evidence Act. It has been further argued that the prosecution has
framed the accused Devender by writing three different
disclosure statements on 31.12.2014, 09.01.2015 and 10.01.2015.
It has been further argued that the blood stained shirt allegedly
worn by the accused Devender Kumar and the seat covers which
were allegedly thrown in the ganda nala at Faridabad have not
been recovered. It has been further argued that the case of the
prosecution is highly improbable because it is beyond
comprehension as to why, the accused kept the black coloured
jacket, black coloured pant and pair of shoes with him at his
house, only to be recovered by the police officials, in case, he
had thrown the blood stained shirt and the seat covers in the
Ganda Nala at Faridabad. It has been further argued that the car
bearing no. DL13CA3294 was seized by the IO on 31.12.2014
but the same was sent to FSL through PW25 ASI Jaiprakash only
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on 08.01.2015 for lifting the blood stains and biological clues. It
has been further argued that there is no explanation as to why,
the above said car was kept in the open compound of police
station Daryaganj w.e.f. 31.12.2014 till 08.01.2015 and as to
why, the above said car was not examined by calling the FSL
team at the spot when the above said car was taken into
possession by the IO. It has been further argued that the cell ID
location is not sufficient to prove the guilt of the accused because
the calls used to be exchanged in between the accused and the
deceased as both were known to each other. It has been further
argued that PW11 Charanjeet, the owner of Jagdambey Car
World, from where, the seat covers were allegedly got changed
by the accused Devender turned hostile and even PW14 Mohd.
Yusuf, the employee in the shop of PW11 failed to support the
case of the prosecution. It has been further argued that PW13
Gulshan Verma, from whose shop, the broken front Windscreen
of the above said car was seized has also failed to support the
case of the prosecution. It has been further argued that even the
site plan of the place of the alleged murder of the deceased has
not been placed on record and there is no evidence on record to
show as to from where, the weapons of offence i.e. the paper
cutter Ex. P21/2 and the clutch wire Ex. P4 were obtained by the
accused persons. It has been further argued that in a case of
circumstantial evidence, not only motive but strong motive is
required to prove the case but in the case in hand, not even the
slightest of the motive has been proved by the prosecution. It has
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been further argued that the prosecution has utterly failed to
prove the guilt of the accused persons beyond any reasonable
doubt and the chain of circumstances is having many a missing
links. It has been prayed that the accused persons be exonerated
of the charges leveled against them.
41.Ld. counsel for the accused Vinay @ Monty has also argued on
the same lines on which ld. Counsel for the accused Devender
Kumar @ Sanjay has argued. It has been argued by the ld.
Counsel for the accused Vinay @ Monty that the evidence of
PW16 Sujal Subui is not trustworthy and reliable at all because
no independent witness has been examined by the prosecution to
prove the recovery of the melted gold weighing 18 grams, the
coral and zircons and even the receipt Ex. PW16/A. It has been
further argued that the coral and zircons are easily available in
the market and except the disclosure statement of the co-accused
Devender, there is nothing on record to prove the involvement of
the accused Vinay @ Monty. It has been prayed that the accused
Vinay @ Monty be also exonerated of the charges leveled
against him.
42.I have carefully gone through the entire material available on
record and heard the submissions of the ld. Counsels for the
accused persons and that of the ld. Addl. PP for the State.
ANALYSIS & FINDINGS
43.In the case in hand, there is no eye-witness to the incident in
question which took place in the intervening night of
29/30.12.2014, as a result of which, the murder of the deceased
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Naresh Kumar Bansal(father of PW8 Manish Bansal and PW9 Sh.
Pankaj Bansal) was committed. The DD entry in this regard was
received vide DD no. 2A at 01:15 AM on 30.12.2014 at PS
Daryaganj. There is no last seen evidence as well. There is no
CCTV footage capturing the incident in question or any
videography or photography of the place of incident or that of the
recovery. No chance prints were lifted by the mobile crime team.
The present case is squarely based on the circumstantial evidence.
44.The prosecution has highly relied upon the recovery witnesses
mainly. PW21 Ct. Nemi Chand, PW33 SI M.K. Manoj, PW34 SI
Praveen Badsara and PW39 Inspector Vivekanand Jha in order to
prove the guilt of the accused Devender Kumar @ Sanjay and
upon the testimonies of PW23 Ct. Sachin, PW27 Ct. Tek Bahadur,
PW34 SI Praveen Badsara and PW40 second IO Inspector Amrit
Raj in order to prove the guilt of the accused Vinay @ Monty.
45.Besides the circumstantial evidence, mainly in the form of the
recovery witnesses, in the opinion of this court, there is nothing on
record to link the accused persons with the brutal crime which
took place from 05:00 AM to 01:10 AM on 29.12.2014. Of
course, the forensic evidence in the form of PW29 Dr. Arun
Kumar, who conducted the postmortem report; PW31 Ms. Sunita
Gupta, who proved on record the report Ex. PW31/B, PW36
Avdhesh Kumar who proved on record his report Ex PW36/A in
order to prove the handwriting of the accused Vinay @ Monty on
the receipt Ex. PW16/A is also there on record but the reliability
quotient of the above said forensic evidence, necessarily depends
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upon the reliability quotient of the recovery witnesses, in the
opinion of this court and as such, the testimonies of the recovery
witnesses and that of the forensic witnesses as well, are to be dealt
with by this court, in order to conclude as to whether, the
prosecution has been able to prove the guilt of the accused
persons, beyond any reasonable doubt.
46.Now, let this court examine the evidence led by the public
witnesses, police witnesses, recovery witnesses and the witnesses
to the forensic evidence, in the present matter.
PUBLIC WITNESSES
47. Only three public witnesses have been examined by the
prosecution in the present case namely Manish Bansal as PW8,
Pankaj Bansal as PW9 and Shyam Kishor as PW17. PW17 Shyam
Kishor has been examined on the aspect of motive as submitted by
the ld. Addl. PP for the State. PW8 Manish Bansal and PW9
Pankaj Bansal are the sons of the deceased Naresh Kumar Bansal.
48. The material aspects of the testimonies of PW8 and PW9 have
already been narrated hereinabove. PW8 Manish Bansal identified
the dead body of his deceased father vide identification memo as
PW8/A and PW9 identified the dead body of his deceased father
at the mortuary of MAMC vide identification memo Ex. PW9/A.
The dead body was handed over to PW9 vide memo Ex. PW9/B.
PW9 joined the TIP proceedings on 05.03.2015 and TIP
proceedings of the red coloured coral (monga stone) and
transparent zircons has been exhibited as Ex. PW9/C. PW8
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identified the red coloured coral as Ex. P8/1 and the transparent
zircons as Ex. P8/2.
49. PW9 has merely deposed on the aspect that on 29.12.2014, he had
taken his father on his scooter to Shroff Hospital, Daryaganj and
thereafter, after his medical checkup, he dropped his father at
Subhash Park, Jama Masjid at about 05:00 PM as he had to go to
his office of property dealing situated at Chandni Chowk. Since
the father of PW9 failed to reach his office, PW9 received a call
and DD entry no. 3A Ex. PW3/A in respect of the missing of
Naresh Kumar Bansal was lodged with PS Jama Masjid. The
testimony of PW8 is on the same lines on which PW9 has
deposed.
50. Going by the testimonies of PW8 and PW9, it is evidently and
apparently clear that the above said witnesses are neither the eye-
witnesses to the incident in question and they are also not the
witnesses to any last seen evidence as none of them saw the
deceased in the company of the accused persons prior to or at the
time of commission of the offence. It becomes pertinent to
mention here that no suspicion of any kind was shown towards the
accused persons either by PW8 or by PW9 to the IO of the case in
their statements recorded by the police.
RECOVERY WITNESSES
51. It has to be seen that the settled law pertaining to the recovery u/s
27 of the Indian Evidence Act is that recovery must satisfy the
conscience of the court and recovery must not be doubtful. The
basic idea embedded in Section 27 of the Indian Evidence Act is
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the doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered as a search
made on the strength of any information obtained from a prisoner,
such a discovery is a guarantee that the information supplied by
the prisoner is true. It has to be seen that in a recent judgment
titled as Subramanya Vs. State of Karnataka cited as
MANU/SC/1326/2022 arising out of criminal appeal no. 242/2022
decided on 13.10.2022, the Hon’ble Supreme Court of India in
para no. 76, 77 and 78 thereof has held as under:-
“76. Keeping in mind the aforesaid evidence, we proceed to consider
whether the prosecution has been able to prove and establish the
discoveries in accordance with law. Section 27 of the Evidence Act reads
thus:
27. How much of information received from Accused may be proved.–
Provided that, when any fact is deposed to as discovered
in consequence of information received from a person
Accused of any offence, in the custody of a police officer,
so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
77. The first and the basic infirmity in the evidence of all the aforesaid
prosecution witnesses is that none of them have deposed the exact
statement said to have been made by the Appellant herein which
ultimately led to the discovery of a fact relevant Under Section 27 of the
Evidence Act.
78. If, it is say of the investigating officer that the Accused Appellant
while in custody on his own free will and volition made a statement that
he would lead to the place where he had hidden the weapon of offence,
the site of burial of the dead body, clothes etc., then the first thing that the
investigating officer should have done was to call for two independent
witnesses at the police station itself. Once the two independent witnesses
would arrive at the police station thereafter in their presence the Accused
should be asked to make an appropriate statement as he may desire in
regard to pointing out the place where he is said to have hidden the
weapon of offence etc. When the Accused while in custody makes such
statement before the two independent witnesses (panch-witnesses) the
exact statement or rather the exact words uttered by the Accused should
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be incorporated in the first part of the panchnama that the investigating
officer may draw in accordance with law. This first part of the panchnama
for the purpose of Section 27 of the Evidence Act is always drawn at the
police station in the presence of the independent witnesses so as to lend
credence that a particular statement was made by the Accused expressing
his willingness on his own free will and volition to point out the place
where the weapon of offence or any other Article used in the commission
of the offence had been hidden. Once the first part of the panchnama is
completed thereafter the police party along with the Accused and the two
independent witnesses (panch-witnesses) would proceed to the particular
place as may be led by the Accused. If from that particular place anything
like the weapon of offence or blood stained clothes or any other Article is
discovered then that part of the entire process would form the second part
of the panchnama. This is how the law expects the investigating officer to
draw the discovery panchnama as contemplated Under Section 27 of the
Evidence Act. If we read the entire oral evidence of the investigating
officer then it is clear that the same is deficient in all the aforesaid
relevant aspects of the matter.”
52.The doctrine of confirmation by subsequent facts as enshrined u/s
27 of the Indian Evidence Act pertaining to the recovery has been
discussed in detail by the Hon’ble Apex Court of the Land in the
matter titled as Jafarudheen & Ors. Versus State Of Kerala cited
as 2022 LiveLaw (SC) 403, wherein in para no. 30 and 31
thereof, it has been observed as under:-
“30. Section 27 of the Evidence Act is an exception to Sections
24 to 26. Admissibility under Section 27 is relatable to the
information pertaining to a fact discoverjafed. This provision
merely facilitates proof of a fact discovered in consequence of
information received from a person in custody, accused of an
offense. Thus, it incorporates the theory of “confirmation by
subsequent facts” facilitating a link to the chain of events. It is
for the prosecution to prove that the information received from
the accused is relatable to the fact discovered. The object is to
utilize it for the purpose of recovery as it ultimately touches
upon the issue pertaining to the discovery of a new fact
through the information furnished by the accused. Therefore,
Section 27 is an exception to Sections 24 to 26 meant for a
specific purpose and thus be construed as a proviso.
31.The onus is on the prosecution to prove the fact discovered
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for the reason that the information has been obtained while the
accused is still in the custody of the police. Having understood
the aforesaid object behind the provision, any recovery under
Section 27 will have to satisfy the Court’s conscience. One
cannot lose sight of the fact that the prosecution may at times
take advantage of the custody of the accused, by other means.
The Court will have to be conscious of the witness’s credibility
andthe other evidence produced when dealing with a recovery
under Section 27 of the Evidence Act.”
53.Now, coming to the present case on the aspect of recovery,
accused Devender got recovered the blood stained paper cutter Ex.
P21/2 and the hand glove Ex. P21/3 from near the scene of the
crime and he also got recovered black coloured jacket Ex. P21/4,
black coloured pant Ex. P21/5, pair of black and white coloured
canvas shoes Ex. P21/6 from his house bearing no. 10/119, near
Gurudwara Geeta Colony, Delhi on 31.12.2014. PW21 Ct. Nemi
Chand, PW33 SI M.K. Manoj, PW34 SI Parveen Badsara and
PW39 Inspector Vivekanand Jha are the main recovery witnesses
qua the accused Devender Kumar @ Sanjay.
54.Vinay @ Monty got recovered the pair of shoes Ex. P23/1, T shirt
Ex. P23/2 and blue coloured jeans pant Ex. P23/3 from his house
bearing no. 1123/61, Multani Mohalla, Gita Colony, Delhi. PW23
Ct. Sachin, PW27 Ct. Tek Bahadur, PW34 SI Praveen Badsara
and PW14 Inspector Amrit Raj, the second IO of the case are the
main recovery witnesses qua the accused Vinay @ Monty.
55.The material aspects of the testimonies of all the recovery
witnesses have already been discussed hereinabove. None of the
witnesses to the recovery made any departure entry or arrival entry
either while leaving the police station or while reaching at the
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police station Mujesar or PS Saran or any other place or while
returning back to the police station in violation of the Punjab
Police Rules.
56.All the recovery witnesses have admitted that Geeta Colony,
where the residences of the accused persons Devender Kumar @
Sanjay and Vinay @ Monty are situated, is a densely populated
area but none of the independent witnesses were joined despite
their availability. No photography or videography of the alleged
place of recovery was done. IO failed to request any public person
to join the investigation and no written notice was given by the IO
to the independent and public witnesses who refused to join the
investigation despite the specific request of the IO. Even the
family members of the accused persons, who were present in the
house, at the time of search by the police officials were asked to
sign the seizure memos of the articles of recovery. From the
testimonies of the recovery witnesses, it is apparently clear that
there was sufficient opportunity with the IO of the case to join the
public witnesses either before the formation of the raiding party or
even at the time of the search and seizure of the above said
recovery but investigating agency failed to do so.
57.The settled law is that if the investigating agency fails to join the
recovery witnesses despite the availability of the same, the same is
fatal to the case of the prosecution. The law in this regard has also
been enunciated clearly in case titled as “Roop Chand Vs. State
of Haryana” reported as CC Cases 3 (HC),wherein it was held
that where the police has failed to join independent witnesses in
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the investigation despite their availability and further failed to
take action against those who refused to take part in investigation
nor their names were noted down by the police, the explanation
of the police for not joining independent witnesses is an
afterthought and liable to be rejected. In the case of “Hem Raj v.
State of Haryana” AIR 2005 SC 2110, it hasbeen observed that:-
“The fact that no independent witness though available, was
not examined and not even an explanation was sought to be
given for not examining such witness is a serious infirmity in
the prosecution case. Amongst the independent witnesses one
whowas very much in the know of things from the beginning
was not examined by the prosecution. Non-examination of
independent witness by itself may not give rise to adverse
inference against the prosecution. However, when the evidence
of the alleged eye-witnesses raise serious doubts on the point of
their presence at the time of actual occurrence, the unexplained
omission to examine the independent witness would assume
significance.”
58.In the case of “Pawan Kumar Vs. The Delhi Administration“,
1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
“Kalam Singh has to admit that at the time of the arrest and
recovery of the knife, there was a lot ofrush of public at the bus
stop near Subhash Bazar. According to Jagbir Singh, he did not
join any public witness in the case while according to Kalam
Singh,no public person was present there. It hardly stands to
reason that at a place like a bus stop near Subhash Bazar, there
would be no person present at a crucial time like 7.30 pm when
there is a lot of rush of commuters for boarding the buses to the
irrespective destinations. Admittedly, there is no impediment in
believing the version of the police officials but for that the
prosecution has to lay a good foundation. At least one of them
should have deposed that they tried to contact the public
witnesses or that they refused to join the investigation. Here is a
case where no effort was made to join any public witness even
though number of them were present. No plausible from the side
of the prosecution is forthcoming for not joining the
Independent witnesses in case of a serious nature like the
present one. It may be that there is an apathy on the part of the
general public to associate themselves with the police raids or
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the recoveries but that apart, at least the IO should have made an
earnest effort to join the independent witnesses. No attempt in
this direction appears to have been made and this, by itself, is a
circumstance throwing doubt on the arrest or the recovery of the
knife from the person of the accused.”
59.In the case of “Sadhu Singh Vs. State of Haryana” 2000 (2) CC
CasesHC 73, the Court took note of the fact that public witnesses
were not joined ininvestigation to acquit the accused.
60.In the case of “Massa Singh Vs. State of Punjab” 2000 (2) C.C.
Cases HC11, conviction was set aside on the ground that it was
obligatory on the part of investigating officer to take assistance of
independent witnesses to lend authenticity to the investigation
conducted by him. It was observed as under :-
“The recovery has been effected from a public place. The
Investigating Officer could have taken the trouble to associate
an independent witness to get the attestation of such
independent witness regarding the authenticity of the
investigation conducted by him. This aspect of the case has
not been properly appreciated by the Court below.”
61.Going by the ratio of the above stated judgments, I am of the
opinion that it has been rightly argued by the ld. Counsels for the
accused persons that the recovery effected from the respective
places is highly doubtful and the same does not inspire the
confidence of the court. The recovery witnesses, in their cross-
examinations, have categorically admitted that the IO failed to
even note down the names and addresses of the persons who
refused to join the investigation. No action against such persons
was taken by the IO. Merely stating that the IO tried to join the
public witnesses is insufficient to prove the reliability and
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trustworthiness of the alleged recovered articles at the instance of
the accused persons.
62.Furthermore, it has to be seen that the second IO of the case PW40
inspector Amrit Raj, in the cross examination, has admitted that
no public witness was joined when the accused Vinay @ Monty
was being interrogated outside the court room or the exact place
for the articles which were to be recovered were not mentioned in
the brief disclosure statement of the accused Vinay @ Monty. The
above said cross-examination of PW40, the second IO of the case,
is sufficient in itself to prove on record that the procedure as laid
down in the case of Subramanya Vs. State of Karnataka(supra)
was not followed, punch witnesses were not cited and even the
exact words or the exact information pertaining to the recovery
was not mentioned in the disclosure statement, thus, vitiating the
entire recovery allegedly effected at the instance of the accused
persons Devender Kumar @ Sanjay and Vinay @ Monty.
63.The above said recovery witnesses, in their cross-examinations,
have admitted that the place from where the weapon of offence i.e.
the paper cutter and the hand glove was recovered was a public
place accessible to all. In the opinion of this court, the recovery of
the above said paper cutter and the hand glove also becomes
doubtful as no public witness was joined despite the fact that the
public persons were passing by the above said place of recovery
which was an open place accessible to all. In this context, ld.
Defence counsels, have relied upon the ratio of the judgment titled
as Raja Naykar Vs. State of Chhattisgarh cited as 2024 SCC
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OnLine SC 67, wherein, in para no. 24 to 28, the Hon’ble
Supreme Court of India has held as under:-
“24. Undisputedly, the dead body was found much prior to the
recording of the Memorandum of the appellant under Section
27 of the Evidence Act. Therefore, only that part of the
statement which leads to recovery of the dagger and the
rickshaw would be relevant.
25. The Property Seizure Memo would show that the dagger
was seized from a place accessible to one and all. According to
the prosecution, the incident took place on 21st October, 2009
and the recovery was made on 25th October, 2009.
26. As per the FSL report, the blood stains found on the dagger
were of human blood. However, the FSL report does not show
that the blood found on the dagger was of the blood group of
the deceased. Apart from that, even the serological report is not
available.
27. Insofar as the recovery of rickshaw is concerned, it is again
from an open place accessible to one and all. It is difficult to
believe that the owner of the rickshaw would remain silent
when his rickshaw was missing for 3-4 days. As such, the said
recovery would also not be relevant.
28. Another circumstance relied on by the Trial Judge is with
regard to recovery of blood-stained clothes on a Memorandum
of the appellant. The said clothes were recovered from the
house of the appellant’s sister-in-law. The alleged incident is of
21st October 2009, whereas the recovery was made on 25th
October, 2009. It is difficult to believe that a person
committing the crime would keep the clothes in the house of
his sister-in-law for four days. ”
64.In the light of the ratio of the above stated judgment, I am of the
opinion that it has been rightly argued by the ld. Counsels for the
accused persons that the recovery of the wearing clothes of the
accused Devender Kumar from his house is highly doubtful. The
case of the prosecution is that the above said accused had thrown
his blood stained shirt and the blood stained seat cover in the
ganda nala near Shamshan Ghat, Sector 22-23,
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Faridabad(Haryana) which could not be recovered. I am of the
opinion that it becomes difficult to believe that the above said
accused Devender Kumar kept the jacket, pant, worn by him at the
time of commission of the crime at his house, only to be recovered
by the police officials, after throwing his blood stained shirt and
the seat covers in the above said ganda nala, which could not be
recovered.
65.As per the case of the prosecution, the seat covers of the car
bearing no. DL13CA3294, in which the murder of the deceased
was committed, were got changed by the accused Devender
Kumar from the owner namely Sh. Charajeet of the Jagdambey
Car World at Faridabad through the medium of PW14 Mohd.
Yusuf, the employee of PW11 Sh. Charanjeet. Needless to
mention that not only PW11 Sh. Charanjeet but PW14 Mohd.
Yusuf as well have completely resiled from their previous
statements on the above said aspect of the case of the prosecution
and have utterly failed to support the case of the prosecution to the
effect that the accused Devender Kumar had got changed the seat
covers of the above said car from the shop of PW11 Charanjeet on
30.12.2014 at about 09:15 AM for an amount of Rs. 1,500/-.
66.The case of the prosecution is also to the effect that the above said
accused Devender Kumar had got changed the front window glass
of the above said car from the owner of the shop namely Sh.
Gulshan Verma at Faridabad. PW13 Sh. Gulshan Verma has also
resiled from his previous statement and completely failed to
support the case of the prosecution that the front windscreen of the
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above said car was got changed by the accused Devender Kumar
for an amount of Rs. 2,500/- from his shop no. 162-R, at Tikona
Park Market, near Vaishno Devi Mandir, Faridabad on
30.12.2014.
67.PW16 Sujal Subui, the goldsmith, to whom, the accused Vinay @
Monty had sold the two rings of the deceased, as per the case of
the prosecution, got recovered the melted gold weighing 18 grams
Ex. P16/1 and the receipt for the amount of Rs. 37,000/-, some
portion of which was in the handwriting of the accused Vinay @
Monty Ex. PW16/A together with the coral Ex. P8/1 and zircons
Ex. P8/2.
68.The evidence on the aspect of recovery of the coral and nine small
zircons has already been discussed hereinabove and the same has
not been found to be trustworthy, reliable and confidence
inspiring.
69.Now, coming to the recovery of the melted gold Ex. P16/1 and the
receipt Ex. P16/A, PW16 in the cross examination has
categorically admitted that his shop was situated in a crowded area
but despite the same, IO did not ask any public person to join the
proceedings of the recovery. No proof at all was furnished by
PW16 to the IO of the case to the effect that the above said shop
was owned by him. The receipt Ex. PW16/A was prepared only
from the pages of the rough diary and the said diary was not being
maintained by PW16 for recording his daily work, even as per the
cross-examination of PW16.
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70.Furthermore, PW27 Ct. Tek Bahadur, at one point of time, states
that he had gone inside the above said shop and in the very same
breathe, the said witness states that he had not entered the above
said shop. PW27 also admits that there were other shops in the
vicinity of the said shop and public persons were moving but no
public person was asked to join the investigation. PW27 admits
that some persons were present in the shop but none of the public
persons was asked to join the investigation by the IO.
71.None of the recovery proceedings has been photographed or
videographed as per the cross-examination of the above said
recovery witnesses including the shop of the goldsmith. The
second IO PW40 also admits that no videography of the shop of
the goldsmith was done. PW40 does not remember if the receipt
Ex. PW16/A was separated from any diary in his presence or it
was already in a separate condition. PW40 did not take the
specific handwriting of the words mentioned from portion B to B
in Ex. PW16/A from the accused Vinay @ Monty. The name of
the goldsmith Sujal Subui has not been mentioned in the receipt
Ex. PW16/A.
72.It is true that PW36 Avdhesh Kumar from FSL has testified about
the fact that the person who wrote the red enclosed writing Mark
S1 to S50 also wrote the red enclosed writing Mark Q1 to Q10 but
even PW36, in the cross examination, admits that the ink and the
pen in writing the words from Q1 to Q10 and the portion from S1
to S50 was not checked by him as the same was not asked by the
IO.
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73.However, keeping in view the entirety of the evidence pertaining
to the above said recovery witnesses, I have no hesitation to hold
that the entire recovery effected at the instance of the above said
two accused persons from their houses or the recovery of the
paper cutter and the hand glove from the scene of the crime at the
instance of the accused Devender Kumar @ Sanjay or the
recovery effected from the shop of the goldsmith PW16 Sujal at
the instance of the accused Vinay @ Monty is highly vitiated,
doubtful and the same does not inspire the confidence of the court
at all. Needless to mention that PW11 Charanjeet, PW14 Mohd.
Yusuf and PW16 Sujal Subai have completely resiled from their
previous statements, as discussed hereinabove.
EVIDENCE PERTAINING TO THE ARREST OF THE
ACCUSED PERSONS AND THE CAR BEARING NO.
DL13CA3294
74.As per the arrest memo Mark PW21/A dated 31.12.2014, the
accused Devender Kumar @ Sanjay was arrested on 31.122014 at
09:15 hours from the Red Light near Shantivan Service Road. The
said arrest memo bears the signature of first IO PW39 Vivekanand
Jha and PW33 SI M.K. Manoj. The accused was in his car
DL13CA3294 and the car has been exhibited as Ex. PW33/P1 and
the seizure memo of the car has been exhibited as Ex. PW33/B.
As per PW21 Ct. Nemi Chand, the above said accused was
arrested on the basis of the secret information by the police team
comprising of PW21 Ct Nemi Chand, PW33 SI Manoj, PW39
first IO V.K. Jha, Ct. Bachu Singh etc.. The secret information
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was to the effect that the above said accused shall be going to
Chandni Chowk from Geeta Colony Flyover.
75.However, it has to be seen that as per PW39, the secret
information was not deduced into writing and no videography or
photography either of the car or of the accused at the time of his
arrest was done. The above said witnesses to the arrest and seizure
memo of the car have admitted that the red light at Shantivan was
not visible from Delhi Gate; no notice was served upon the public
persons who were requested to join the investigation; generally
vehicular traffic was there at the red light of Shantivan; no site
plan of the place from where the accused Devender was arrested
or the car was seized was prepared.
76.From a perusal of the cross-examinations of the above said
witnesses, I am of the opinion that the arrest of the accused
Devender Kumar @ Sanjay is highly doubtful. It appears that the
above said accused Devender Kumar @ Sanjay was waiting for
the police officials, only to be arrested by them, at the scene of the
crime.
77.Now, coming to the seizure of the car of the accused, it is true that
the above said car was in the name of Sh. Khemchand, father of
the accused Devender Kumar, as per the testimony of PW19 but
the seizure of the above said car is again highly doubtful and the
same does not inspire the confidence of the court.
78.It has to be seen that the above said car bearing no. DL13CA3294
was seized vide seizure memo Ex. PW33/B on 31.12.2014 but the
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same was sent to the FSL only on 08.01.2015. There is no
explanation as to why, the above said car was sent to FSL Rohini
only on 08.01.2015 despite the fact that the same was seized on
31.12.2014. There is no explanation on behalf of the prosecution
as to why, the said car was kept in the open compound of PS
Daryaganj till 08.01.2015.
79.The testimonies of PW25 ASI Jaiprakash and PW31 Ms. Sunita,
the Senior Scientific Officer from the Biology Divison of FSL
assume significance, so far, as the lifting of the exhibits from the
above said car is concerned. The car was taken to FSL on
08.01.2015 by PW25 ASI Jaiprakash and the cuttings from the
footmat Ex. P25/1, stains prepared from left door of the car Ex.
P25/2, stains prepared from left door frame Ex. P25/3 and red
coloured car sun protector Ex. P25/4 were lifted by PW31 from
the said car and the same were handed over to PW25 ASI Jai
Prakash. There is no written request or letter sent either by the IO
or by HC Jaiprakash to the officials of the FSL. No photographs of
the said car have been placed on record despite the fact that PW31
admits that photo division of FSL had taken the photographs of
the car. In the report Ex. PW31/A prepared on 30.01.2015, the
details of cuttings taken from the car, stains prepared and exhibits
seized from the car have not been mentioned. The lifted exhibits
were neither seized by the FSL nor by PW25 HC Jaiprakash. Even
the signatures of the team members of PW31 were not obtained on
the report Ex. PW31/A. PW31 has admitted that in the report Ex.
PW31/B, the word human blood has not been mentioned.
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80.In the light of the testimonies of the witnesses to the investigation
and arrest, to the recovery, PW21 Ct. Nemi Chand, PW33 SI M.K.
Manoj, PW34 SI Praveen Badsara, PW39 first IO of the case, I
have no hesitation to hold that the seizure of the above said car is
highly doubtful. The testimonies of PW25 and PW31, in the
opinion of this court, categorically bring home the point that the
exhibits lifted from the car were lifted in highly suspicious
circumstances and the chances of tampering with the case property
i.e. the above said car cannot be ruled out at all. As such, I am of
the opinion that the opinion submitted by PW31 in her report Ex.
PW31/B to the effect that the DNA profile generated from the
blood stained gauze of the deceased was found to be similar with
male DNA profile generated from the documents, the amount,
handkerchief, nail clippings of the deceased, paper cutter, pair of
shoes, footmat and car sun protector is of no help to the case of the
prosecution as not only the seizure of the above said car but the
recovery of the paper cutter, pair of shoes and lifting of the
exhibits such as the footmat and car sun protector from the car is
highly doubtful, untrustworthy and unreliable.
TESTIMONIES OF THE POLICE OFFICIALS
81.In the case in hand, as many as 24 police witnesses have been
examined by the prosecution which include the formal witnesses,
witnesses to the investigation, witnesses to the recovery, witnesses
pertaining to the mobile crime team and the two IOs of the case
i.e. the first IO Inspector Vivekanand Jha and second IO PW40
Inspector Amrit Raj.
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82.The material aspects of the testimonies of the above said police
officials have already been discussed hereinabove. The
testimonies of the recovery witnesses have also been discussed
hereinabove as the same assumes significance, in the facts and
circumstances of the present case, which is squarely based on the
circumstantial evidence. The testimonies of the recovery witnesses
have not found to be reliable, trustworthy and confidence inspiring
in the light of the above said discussion, by this court. The police
witnesses, in the cross-examinations, have categorically admitted
that no arrival or departure entries were made by them either at the
time of search or at the time of seizure of the case property or at
the time of effecting the recoveries. The conduct of the police
officials in non-recording of the arrival or departure entries is in
violation of the Punjab Police Rules 22.49. As such, the action of
the police officials has to be viewed with suspicion, as has been
held in the judgment titled as Ratan Lal Vs. State
1987(2)Crimes29, wherein, it has been observed by the Hon’ble
High Court of Delhi as under:-
“5…………..if the investigating agency deliberately ignores to
comply with the provisions of the Act, the courts will have to
approach their action with reservation. The matter has to be viewed
with suspicion if the provisions of law are not strictly complied with
and the least that can be said is that it is so done with an oblique
motive…….”
WITNESSES TO THE FORENSIC EVIDENCE
83.In the case in hand, as many as four witnesses have been
examined by the prosecution, to prove the forensic evidence
available on record. PW29 Dr. Arun Kumar conducted the
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postmortam on the dead body of the deceased vide PM report
1256/14 Ex. PW29/A on record. PW31 is Ms. Sunita, Senior
Scientific Officer from Biology Division of FSL who lifted the
exhibits from the car DL13CA3294, examined the exhibits vide
report Ex. PW31/B. PW36 is Avdhesh Kumar, Senior Scientific
Officer from FSL who proved on record the handwriting of the
accused Vinay @ Monty on the receipt Ex. PW16/A. PW38 is Sh.
M.L. Meena, Senior Scientific Officer from the Chemistry
Division of FSL who examined the viscera of the deceased vide
his report Ex PW38/A.
84.The testimonies of PW31 Ms. Sunita and PW36 Sh. Avdhesh
Kumar have already been discussed hereinabove. The viscera
report came to be negative qua the common poisons. In the
entirety of the facts and circumstances, I am of the opinion that the
forensic evidence available on record is also not able to link the
above said two accused persons with the commission of the crime,
in the case in hand.
MOTIVE
85.I am of the opinion that ld. Defence counsels have rightly argued
that in a case based on circumstantial evidence, the presence of the
strong motive is essential in order to prove the guilt of the accused
persons beyond any reasonable doubt. The sole witness examined
by the prosecution, on the aspect of motive, is PW17 Shyam
Kishor but going by the cross-examination of the above said
witness, it is apparently clear that the above said witness has not
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only improved upon his testimony, while testifying in the court
but the said witness has also failed to prove on record the motive
on behalf of the accused in committing crime. This witness has
clearly failed to prove on record that any amount was borrowed by
the accused Devender Kumar @ Sanjay from the deceased Naresh
Kumar Bansal or that there was any demand of the alleged
borrowed amount from the accused Devender Kumar @ Sanjay
by the deceased Naresh Kumar Bansal. PW17, in the cross-
examionation, has stated about one Sh. Mukesh and one Sh.
Bheemji in his testimony in the court but the above said names
have not been mentioned at all in his statement recorded by the
police. The Mobile phone of PW17 was not seized by the IO and
even the CDR of his mobile phone was not obtained by the IO. As
such, I am of the opinion that the prosecution has utterly failed to
prove on record the motive on the part of the prosecution to
commit the brutal murder of the deceased Naresh Kumar Bansal.
LAW PERTAINING TO THE CIRCUMSTANTIAL
EVIDENCE
86.It is well settled that in a case of circumstantial evidence, the
circumstances from which the conclusion of guilt is drawn, must
be fully proved and such circumstances must be conclusive in
nature. It is again the settled law that the chain of circumstances
must be complete and there must not be any gap left in the chain
of evidence. It is also the settled law that the proved
circumstances must be consistent only with the hypothesis of the
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guilt of the accused and totally inconsistent with the innocence of
the accused.
87.The Hon’ble Supreme Court of India in the Judgment titled as
‘Sharad Bridhichand Sarda Vs. State of Maharashtra cited as
(1984) 4 SCC 116′ has laid down the five golden principles for
appreciation of circumstantial evidence and has termed the same
as Panchsheel of the Proof of Case based on circumstantial
evidence. The said five golden principles are as follows:-
i. The circumstances from which the conclusion of the guilt is
to be drawn should be and not merely ‘may be’ fully
established.
ii. The facts so established should be consistent only with the
hypotheses of the guilt of accused, that is to say, they should
not be explainable on any other hypotheses except that the
accused is guilty.
iii. The circumstances should be of conclusive nature and
tendency.
iv. They should exclude every possible hypotheses except the
one to be proved.
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 probability
the act must have been done by the accused.
88. In the light of the above said discussion and going by the ratio of
the above stated judgment of the Hon’ble Supreme Court of India,
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I am of the opinion that the chain of circumstances is not complete
and there are a number of missing links such as:-
i. That the entire proceedings pertaining to the recovery, lifting
of the exhibits from the spot of the crime, are highly doubtful
and vitiated;
ii. The blood stained seat cover and the blood stained shirt, which
were allegedly thrown by the accused Devender Kumar @
Sanjay, in the ganda nala at Faridabad could not be recovered;
iii. That the arrest of the accused Devender Kumar @ Sanjay, in
the manner as stated by the prosecution, is also highly doubtful
and does not inspire the confidence of the court;
iv. The evidence pertaining to the seizure of the car DL13CA3294
is insufficient to satisfy the conscience of the court;
v. There is no explanation as to why, the above said car allegedly
being used by the accused Devender was sent to FSL only on
08.01.2015 despite the fact that the same was seized on
31.12.2014;
vi. There is no explanation as to why, the above said car was kept
in the open compound of the police station Daryaganj or as to
why, the crime team was not called at the spot itself on
31.12.2014 at the time of seizure of the car itself or as to why,
the videography of the said car was not done or as to why, the
photogaphs of above said car were not taken at the time of
seizure of the car itself;
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vii. That the prosecution has utterly failed to prove on record that
any amount was borrowed by the accused Devender Kumar @
Sanjay from the deceased or that the amount was ever
demanded by the deceased from the accused Devender Kumar
and thus, the motive behind the crime has not been proved;
viii. No site plan of the place near the monastery, where the murder
was committed in the car itself has been placed on record by
the IO;
ix. The prosecution has failed to explain the absence of the rest of
the footmat of the car, in case, only a cutting of the footmat
was taken by PW31 Ms. Sunita for finding the biological clues;
x. There is no explanation as to why, the keys of the car were not
deposited in the malkhana or as to why, the same remained in
the custody of PW25 ASI Jaiprakash;
xi. The seal after the use were never handed over by the two IOs
to any public person; &
xii. No evidence has been placed on record by the prosecution as to
from where, the weapons of offence i.e. the paper cutter and
the clutch wire were arranged and managed by the accused
persons, etc.
CAF AND CDR ANALYSIS
89. The prosecution, in the case in hand, has examined PW22 Sh.
Chandrashekhar, Nodal Officer from Bharti Airtel Ltd. and this
witness proved on record the CAF, voter ID card and CDR
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analysis from 29.12.2014 to 30.12.2014 of the mobile number
9810492852 in the name of the deceased Naresh Kumar Bansal
and of the mobile number 8800107828, in the name of the accused
Devender Kumar @ Sanjay. The prosecution also examined
PW24 Sh. Israr Babu from Vodafone Mobile Services Ltd. in
order to prove the CAF, Election ID card, Adhar Card and CDR
from 29.12.2014 to 30.12.2014 of mobile number 9811803883
which was in the name of Badal, the brother of the accused Vinay
@ Monty.
90.The CDR Analysis of the above said three mobile numbers show
the exchange of the calls in between the deceased and the above
said accused persons, their availability in the vicinity of the scene
of the crime at the relevant date and time but the question, which
arises for consideration is to whether, the above said circumstance
pertaining to the CDR analysis alone is sufficient to prove the
guilt of the accused persons beyond any reasonable doubt, in the
absence of any other circumstantial evidence. I am of the opinion
that merely on the basis of the above said incriminating evidence
in the form of CAF and CDR analysis, the above said accused
persons cannot be held guilty of the offence u/s 302/201/34 IPC.
While holding so, I am fortified by the following observations of
the Hon’ble High Court of Delhi in the judgment titled as State
Vs. Hasnain & Anr. in CRL. L.P. no. 15/2013 decided on
10.12.2013, wherein, it has been held as under:-
“6. In the aforesaid background of the legal position and on
appreciation of the material on record, we are not persuaded to take
any contrary view as has been arrived at by the learned Trial Court
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in acquitting the accused. The case of the prosecution is based upon
circumstantial evidence and it is a settled legal position that for
proving the case based on circumstantial evidence links in the the
chain of evidence must be so complete that they must unerringly
point towards only one hypothesis i.e. the guilt of the accused
inconsistent with his innocence. Through testimonies of PW2, PW3,
PW4, PW5 and PW10, the prosecution successfully proved that
there were inimical relations between the accused Hasnain and the
deceased and also that the deceased was residing separately with
one Haji Chhote after having left her matrimonial house. Through
the statement of PW12 the prosecution sought to prove motive on
the part of the accused to kill the deceased as he was desperately
looking for the deceased after she started residing with one Haji
Chhote. Another angle which the prosecution tried to prove was that
the number of telephone calls were exchanged between the accused
and the deceased and the location of both mobiles, being used by the
deceased and the accused, on the date of the incident was under one
tower i.e. tower No. 22098 i.e. Seelampur Shahdara. Based on these
incriminating evidences against the accused the view taken by the
Trial Court was that beside these two circumstances prosecution has
failed to establish any other circumstance to inculpate the accused
behind the commission of the said crime. It would be worthwhile to
reproduce the operative para of the Trial Court judgment, which is
as under:-
” The entire case of the prosecution is based upon
circumstantial evidence. The only circumstances which
stand proved against accused Hasnain are that he had a
strong motive to kill deceased and immediately before
deceased was murdered, he talked with deceased
number of times and as per tower location he and
deceased were present under the towers of their
respective mobile companies. i.e. Tata Tele and
Vodafone, covering the spot from where dead body was
recovered. Beyond these two circumstances prosecution
has miserably failed to establish any other
circumstance. These two circumstances are insufficient
to draw conclusion of guilt of accused Hansnain.
Moreover, the second circumstance about presence of
accused and deceased near the spot of incident
immediately before the incident is also not conclusive
in nature.”
7. We find ourselves in complete agreement with the said
conclusion arrived at by the learned Trial Court. The learned Trial
Court is right in observing that in the absence of any other clinching
evidence merely based on the said two circumstances i.e. one of
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hostile relationship between husband and wife and second both of
them having talked with each other on the date of incident from
their respective mobiles and i it cannot be established or proved that
the accused has committed the murder of his wife.”
91.In the light of the ratio of the above stated judgment, I have no
hesitation to hold that the circumstantial evidence pertaining to the
CAF and CDR analysis of the above said three mobile numbers is
insufficient in itself to draw the conclusion of guilt of the above
said two accused persons, in the absence of any other
circumstantial evidence.
CONCLUSION
92. The settled law is that the burden to prove the case beyond
reasonable doubt lies on the shoulders of the prosecution. The
accused person has a right to maintain silence in the trial. Every
accused person is presumed to be innocent until and unless proved
guilty. The prosecution has to prove the guilt of the accused by
leading cogent, convincing and reliable evidence beyond any
reasonable doubt. The accused person cannot be convicted on the
basis of mere probabilities or presumptions. Suspicion, howsoever
grave, cannot take place of proof. The benefit of doubt has to be
given to the accused.
93. Applying priori and posteorari reasoning, this court is of the
considered opinion that the prosecution has utterly failed to prove
its case against the accused persons namely Devender Kumar @
Sanjay and Vinay @ Monty beyond any reasonable doubt for the
offence punishable u/s 302/201/34 IPC. Resultantly, the accused
persons namely Devender Kumar @ Sanjay and Vinay @ Monty
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are acquitted of the charges framed against them u/s 302/201/34
IPC.
94. Bail bonds u/s 437A of the Cr.P.C. have been furnished and the
same shall remain in force for a period of six months.
95.File be consigned to Record Room, after necessary compliance.
Digitally signed
Announced in the Open Court RAJ by RAJ KUMAR
(Judgment contains 100 pages) KUMAR Date: 2025.05.22
16:21:41 +0530
(Raj Kumar)
ASJ-05, Central District
Tis Hazari Courts, Delhi
22.05.2025
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