Delhi District Court
State vs Gautam Jain on 17 January, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01), CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
CNR No. DLCT01-001540-2014
SC No. 27881/2016
FIR No. 383/2013
U/Sec. 302/201/363/364A/419/468/471 IPC
P.S: Burari
STATE VERSUS GAUTAM JAIN & ORS.
(i) SC No. of the case : 27881/2016
(ii) Date of commission of offence : 21.09.2013
(iii) Name, parentage and address : (1) Gautam Jain
S/o Sh. Bhanwar Lal
R/o J-1081, Jahangir Puri
Delhi-110033.
(2) Sandeep Kumar
S/o Late Sh. Ratan Singh
R/o D-68, Nangli Poona
Extn., Delhi-110036.
(3) Mukesh Kumar Sharma
S/o Sh. Madhu Sudan
Sharma
R/o H.No. 16/25, Gali
No.16, A-1 Block
Bengali Colony
Sant Nagar, Burari
Delhi-110084.
Permanent Add.-Village
Khandak, Deva Road
PS Chinhat, Distt.
Lucknow, Uttar Pradesh.
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FIR No. 383/2013
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(4) Sandeep Kumar @
Sunny
S/o Sh. Raj Kumar
R/o K-1823, Jahangir Puri
Delhi-110033.
(iv) Offence complained of : Under Section:
364/419/468/471/302/
201/120B IPC
(v) Plea of the accused : All the accused pleaded
not guilty and claimed
trial.
(vi) Final order : All the accused person are
Acquitted.
Date of Institution : 10.01.2014
Date of Judgment reserved on : 18.12.2024
Date of Judgment : 17.01.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh.
Kishan Lal on which FIR No. 383 Ex.PW3/A dated 21.09.2013 was
registered under Section 363 IPC regarding commission of offence on
21.09.2013 around 11:30 AM information of which was received at
police station at about 6:35 PM on the said date vide general diary no.
30A. The certificate under Section 65B of Indian Evidence Act regarding
correct registration of FIR is also filed alongwith. DD No. 30A is
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Ex.PW3/B on record which is recorded by HC Joginder Singh. The DD
was recorded in reference to missing of boy Jatin Dhingra aged about 13
years who had height of 4 feet 2 inch. The boy had left the home around
11:30 AM on 21.09.2013 that he is going to the house of his friend to
collect a copy and after which the boy did not return at home. The FIR
was registered at PS Burari and missing information was circulated at TV
channel, Zip Net and after registration of FIR investigation was handed
over to SI Rajnish Kumar. SI Rajnish Kumar, complainant and Ct.
Naveen had left for the spot for further investigation of the case. The
demand of ransom from Ms. Raj Dhingra, mother of the child was
received at her mobile no. 9718703685 and the call was received from
no. 8744806631. Rs.10 lakh ransom was demanded and on such demand
Section 364A was added in the case during investigation and Senior
Officer Insp. Naresh Kumar had led the team. The mobile number of the
ransom caller was registered in the name of Manoj Kumar. Accused
Sandeep Kumar was called for investigation on account of suspicion.
Manoj Kumar had told that the voter ID enclosed with CAF was given by
him in the year 2009 to accused Gautam Jain. On identification of Manoj
Kumar, accused Gautam Jain was apprehended at G.T.K depot. Accused
Gautam Jain had told that voter ID in the name of Manoj Kumar was
given by him to his friend Sandeep Kumar who is accused in this case.
He had given this ID on framing of plan by accused no. 2 Sandeep
Kumar that he need this voter ID for the purpose of kidnapping a boy to
extort a ransom share in which had to be given to accused Gautam Jain.
2. On 23.09.2013 during investigation accused no. 2 Sandeep
Kumar had disclosed that he had lost a huge amount in society and
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gambling on account of which he alongwith accused no. 3 Mukesh
Kumar Sharma and accused no. 4 Sandeep Kumar @ Sunny had planned
to kidnap the victim Jatin Dhingra. Accused no. 2 Sandeep Kumar
alongwith accused no. 4 Sandeep Kumar @ Sunny had purchased the
SIM of mobile phone from a mobile shop at Nathupura after obtaining
voter ID of Manoj Kumar from accused Gautam Jain. The SIM was
purchased by Mukesh Kumar Sharma from Burari village, mobile shop
and the SIM was activated. On 21.09.2013 accused Mukesh Kumar
Sharma/accused no. 3 had kidnapped the victim Jatin Dhingra in his
Wagon R car no. DL-9CX-1861 and bought the victim to mobile store of
accused no. 4 Sandeep @ Sunny at Sunny Medicos, Harit Vihar, Pepsi
road, Burari, Delhi. There they administered 15 Alprex tablets in the cold
drink and made victim Jatin Dhingra to drink it. Accused no. 4 Sandeep
Kumar @ Sunny had refused to keep the victim in his custody on which
they had planned to kill the victim Jatin Dhingra. On such plan accused
no. 2 Sandeep Kumar and accused no. 3 Mukesh Kumar Sharma had
taken the victim Jatin Dhingra at Nangli, Puna Nala near Royal Farm
House. They had suffocated the victim by a small car seat available in the
car and also pressed the neck of the victim. When they got confirmed that
the victim is no more then they had thrown the body of the boy in the
drainage/nala.
3. After throwing body of the boy accused Sandeep Kumar @
Sunny/accused no. 4 had called Ms. Raj Dhingra for ransom. Section
302/201 IPC was added during investigation in the case by SI Rajesh
Kumar. On pointing out by accused Sandeep Kumar the co-accused no. 3
Mukesh Kumar Sharma was arrested at Gali no. 16, A-1, Block Bengali
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Colony, Sant Nagar, Burari, Delhi. The co-accused no. 4 Sandeep Kumar
@ Sunny/accused no. 4 was arrested from front of his medical shop on
identification by accused no. 2 Sandeep Kumar and accused no. 3
Mukesh Kumar Sharma. On checking the bag of accused no. 4/ Sandeep
Kumar @ Sunny a mobile phone SIM was recovered and it was disclosed
by accused that from this SIM he had made the ransom call. One open
mobile phone was also recovered from the bag.
4. On 23.09.2013 on pointing out by accused no. 2 and 3 the
dead body of victim was recovered from Nangli, Puna drainage/ Nala.
The body was identified by Sh. Kishan Lal father of the victim and Sh.
Jasvinder Singh maternal uncle of the victim. After postmortem the body
was handed over to the father. Viscera and blood sample were preserved.
The mobile shop by the name Dimple Telcom was pointed out by the said
accused that from the said shop SIM was purchased. During PC remand
of accused Gautam Jain on 24.09.2013 on pointing out by the said
accused the attested document of Manoj Kumar i.e. voter ID card,
marksheet, ration card, copy of 10th class certificate were seized. Wagon
R in which the victim was kidnapped was seized from J-Block,
Jahangirpuri, Delhi on pointing out by accused Sandeep Kumar/accused
no. 2. Accused no. 4 Sandeep Kumar @ Sunny and accused no. 2
Sandeep Kumar had pointed out Kishore Communication at Nathupura
from where mobile phone was purchased to make the ransom call.
5. Accused Mukesh Kumar Sharma had refused TIP on
25.09.2013 which was got to be conducted by SI Vishwnath Paswan. The
identification had to be done by witness Shyam Sunder working at
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Dimple Telcom. On 25.09.2013 on pointing out by accused Sandeep
Kumar the slipper of victim Jatin Dhingra was seized and the said slipper
was identified by father of the victim/complainant Sh. Kishan Lal.
6. On 26.09.2013 accused no. 4/ Sandeep Kumar @ Sunny had
pointed out Sunny Medicos Harit Vihar, Burari, Delhi from where he had
taken strip of Alprex tablets which were mixed in the cold drink of the
victim. The keys of the medical store which were used to crush the
Alprex tablet were seized from the house of the accused no. 4 on his
pointing out at K-1823, Jahangir Puri, Delhi and the plastic bowl was
also seized in which the said Alprex tablet were crushed. The blank
envelope of idea SIM was also seized in which the said tablets were kept.
7. On 27.09.2013 the voice sample of accused no. 2 Sandeep
Kumar was sent to FSL for matching the voice of the accused. The
witness Kishore Kumar Mishra owner of Kishore Publication had
correctly identified accused no. 4 Sandeep Kumar @ Sunny in TIP
proceedings and accused no. 2 Sandeep Kumar had refused the TIP
proceedings. FSL report was also collected by IO on the exhibits
collected and examined from Wagon R car no. DL-9CX-1861. The voice
recorded at the time of activation of SIM card of accused bearing mobile
no. 8744806631 was also examined after collection from Idea company.
Original CAF, certified copy of call details and location chart were also
examined of the mobile phone number.
8. The postmortem report has disclosed the cause of death as
Asphyxia due to ante-mortem drowning. Viscera was preserved in respect
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of chemical intoxication. The relevant evidence was collected and
Section 419/468/471 IPC were added since the accused had taken mobile
SIM in the name of Manoj Kumar by impersonating as Manoj Kumar.
They had signed fraudulently in the name of Manoj Kumar. Accused
Gautam Jain has fraudulently used ID, photo of Manoj Kumar and
illegally used SIM obtained. Accused no. 3 Mukesh and accused no. 2
Sandeep both had went to illegally collect the SIM from the mobile
phone shop. After investigation the chargesheet was filed and cognizance
of offence was taken.
9. Copy were supplied to the accused of the chargesheet on
08.01.2014 and their separate statement in this regard was recorded.
Charge was given to all the accused under Section
364/419/468/471/302/201/120B IPC to which all the accused have
pleaded not guilty and claimed trial. Prosecution has led witness PW-1 to
PW-48 as evidence against the accused person. Accused no. 2 Sandeep
Kumar S/o late Sh. Ratan Singh has gave his statement on 29.05.2018
that he has no objection that his evidence be recorded in absence of his
Counsel. He did not avail legal aid services offered to him. However Sh.
Anil, Advocate present had safeguarded his interest and he did not seek
to cross-examination PW-1 Sh. Amar Nath Singh. The Statement of
Accused under Section 313 Cr. P.C. of all four accused person was
recorded and all accused person have preferred not to lead any evidence
in their defence and DE stands closed on behalf of all the accused person.
10. The charge is given to all the accused that in pursuance of the
criminal conspiracy on or before 18.09.2013 at E-369, Jahangir Puri,
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Delhi or elsewhere forged the customer application form by
impersonating as Manoj in order to deceive/cheat the retailer of the
mobile shop and took the mobile connection in the name of accused
Mukesh Kumar Sharma and thereby committed offence under Section
419/468 r/w Section 120B IPC. Further on 18.09.2013 at the same
address all the accused used the forged documents as genuine which is
customer application form and accompanying documents knowing the
same to be false document and thereby committed offence under Section
471 r/w Section 120B IPC.
11. The necessary ingredients of Section 467, 468 and 471 IPC
are reproduced hereasunder:
In Application u/Sec. 482 No. -17011 of 2008 titled Raghu Nath Singh
& Others vs State of U.P. & Another from Hon’ble High Court of
Judicature at Allahabad dated 21.1.2016 it was laid down that:
Applicants have been charge-sheeted under sections 420, 467,
468, 471 IPC. This Court has to examine whether ingredients
of the aforesaid sections are available or not.
Submission of learned counsel for the applicants is that
allegations levelled against the applicants reveals two sets of
allegations. First, subsequent vendors sold the property to
subsequent vendees despite knowledge of earlier sale and
second, that applicant nos. 4 and 5 being attesting witnesses of
the subsequent sale-deed knowingly and deliberately acted as
attesting witnesses. Whether these allegations and available
evidence would made out a case under sections 420, 467, 468,
471 IPC is to be seen.
Sections 467, 468, 471 IPC.
Forgery is sine-qua-non of offences under sections 467, 468
and 471 IPC. Preparation of false document or false electronic
record or part thereof is condition precedent for offence of
forgery. Making of false document is defined under section 464
IPC. The said section 464 demonstrates that a person is said to
have made false document if;
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(a) he executed a document claiming to be someone else or
authorized by someone else; or
(b) he altered and tempered a document; or
(c) he obtained a document by practicing deception or from a
person not in control of his faculties.
The basic ingredients of forgery are
(1) the making of a false document or part of it and
(2) such making should be with such intention as is specified in
the section, viz,
(a) to cause damage or infringe to
(i) the public, or
(ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express or implied
contract; or
(e) to commit fraud or that fraud may be committed.
Coming back to the facts of the present case, it is apparent that
subsequent vendors sold their property to applicants Raghu Nath
Singh, Salim Akhtar and Amir Ahmad. Subsequent vendor did not
impersonate or play deception on the complainant or altered or
tempered any document or played any deception on the
complainant. There is no allegation on record much less evidence
that execution of sale-deed by subsequent vendor in favour of
applicant nos. 1 to 3 involved forgery of documents. Law is very
simple even if a person executes a document transferring property,
disclosing such property as his own, it can not be termed as forgery
within the meaning of Section 463 IPC. Subsequent vendor and
purchasers did not impersonate anybody. Subsequent vendors were
selling property claiming ownership to applicant nos. 1 to 3. Even
if any property is sold by a person claiming ownership, which is
not his, without impersonating or falsely claiming that he has been
authorized by someone else, the execution of such document can
not be termed as false document in terms of Section 464 IPC. In
such situations, there is no question of forgery as contemplated
under section 463 IPC. If offence of forgery is not made out then,
offences under sections 467, 468 and 471 IPC can not be sustained
for the simple reason that forgery is an essential part of all the
offences under aforesaid sections without which provisions of
sections 467, 468, 471 IPC would not be attracted.
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Sections 420 IPC
To constitute an offence under section 420 IPC, the allegations
must disclose ingredients of cheating as defined under Section 415
IPC. Section 415 talks of fraudulent or dishonest inducement to the
person so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally
induces a person so deceived to do or omit to do anything which he
would not do or omit if he was not so deceived. Meaning thereby
that there must be not only be cheating but accused should also
have been dishonestly induced the person deceived to deliver any
property to any person or to make alter or or destroy wholly or in
part a valuable security or anything signed or sealed which is
capable of being converted into a valuable property. Valuable
security is defined under section-30 IPC. No other meaning can be
attached to this definition.
Hon’ble Apex Court in the case of Mohammed Ibrahim and others
Vs State of Bihar and another reported in (2009) 8 SCC 751 in
paragraph nos. 18 & 19 has held as under:
“18. The essential ingredients of the offence of “cheating” are as
follows:
(i) deception of a person either by making a false or misleading
representation or by dishonest concealment or by any other act or
omission;
(ii) fraudulent or dishonest inducement of that person to either
deliver any property or to consent to the retention thereof by any
person or to intentionally induce that person so deceived to do or
omit to do anything which he would not do or omit if he were not
so deceived; and
(iii) such act or omission causing or is likely to cause damage or
harm to that person in body, mind, reputation or property.
19. To constitute an offence under Section 420 IPC, there should
not only be cheating, but as a consequence of such cheating, the
accused should have dishonestly induced the person deceived,
(i) to deliver any property to any person,
(ii) to make, alter or destroy wholly or in part a valuable security
(or anything signed or sealed and which is capable of being
converted into a valuable security).”
12. Further the necessary ingredients of Section 120B IPC were
laid down in Ram Sharan Chaturvedi Vs. State of M.P.
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12. The relevant citation under Section 120B IPC is reproduced
hereasunder:
In Criminal Appeal No. 1066 of 2010; August 25, 2022 Ram Sharan
Chaturvedi versus The State of Madhya Pradesh from Hob’ble Supreme
Court of India has laid down as under:
22. The principal ingredient of the offence of criminal
conspiracy under Section 120B of the IPC is an agreement to
commit an offence. Such an agreement must be proved through
direct or circumstantial evidence. Court has to necessarily
ascertain whether there was an agreement between the
Appellant and A-1 and A-2. In the decision of State of Kerala v.
P. Sugathan and Anr.2, this Court noted that an agreement
forms the core of the offence of conspiracy, and it must surface
in evidence through some physical manifestation:
“12. …As in all other criminal offences, the prosecution has to
discharge its onus of proving the case against the accused
beyond reasonable doubt. …A few bits here and a few bits there
on which the prosecution relies cannot be held to be adequate
for connecting the accused with the commission of the crime of
criminal conspiracy…
13. …The most important ingredient of the offence being the
agreement between two or more persons to do an illegal act. In
a case where criminal conspiracy is alleged, the court must
inquire whether the two persons are independently pursuing the
same end or they have come together to pursue the unlawful
object. The former does not render them conspirators but the
latter does. For the offence of conspiracy some kind of physical
manifestation of agreement is required to be established. The
express agreement need not be proved. The evidence as to the
transmission of thoughts sharing the unlawful act is not
sufficient…” (emphasis supplied)
23. The charge of conspiracy alleged by the prosecution against
the Appellant must evidence explicit acts or conduct on his
part, manifesting conscious and apparent concurrence of a
common design with A-1 and A-2. Iof the accused beyond all
reasonable doubts. It has been held that the Court has to be
watchful and avoid the danger of allowing the suspicion to take
the place of legal proof for sometimes, unconsciously it may
happen to be a short step between moral certainty and legal
proof. It has been indicated by this Court that there is a long
mental distance between “may be true” and “must be true” and
the same divides conjectures from sure conclusions. (Jaharlal
Das v. State of Orissa (1991) 3 SCC 27)” (emphasis supplied)SC No. 27881/2016
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24. In accepting the story of the prosecution, the Trial Court, as
well as the High Court, proceeded on the basis of mere
suspicion against the Appellant, which is precisely what this
Court in Tanviben Pankajkumar Divetia v. State of Gujarat, had
cautioned against:
“45. The principle for basing a conviction on the basis of
circumstantial evidences has been indicated in a number of
decisions of this Court and the law is well settled that each and
every incriminating circumstance must be clearly established
by reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can be
safely drawn and no other hypothesis against the guilt is
possible. This Court has clearly sounded a note of caution that
in a case depending largely upon circumstantial evidence, there
is always a danger that conjecture or suspicion may take the
place of legal proof. The Court must satisfy itself that various
circumstances in the chain of events have been established
clearly and such completed chain of events must be such as to
rule out a reasonable likelihood of the innocence of the
accused. It has also been indicated that when the important link
goes, the chain of circumstances gets snapped and the other
circumstances cannot, in any manner, establish the guilt of the
accused beyond all reasonable doubts. It haof the accused
beyond all reasonable doubts. It has been held that the Court
has to be watchful and avoid the danger of allowing the
suspicion to take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between moral
certainty and legal proof. It has been indicated by this Court
that there is a long mental distance between “may be true” and
“must be true” and the same divides conjectures from sure
conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27)”
(emphasis supplied)
25. It is not necessary that there must be a clear, categorical and
express agreement between the accused. However, an implied
agreement must manifest upon relying on principles
established in the cases of circumstantial evidence.
Accordingly, in the majority opinion of Ram Narayan Popli v.
CBI4 , this Court had held:
“354. … For the offence of conspiracy some kind of physical
manifestation of agreement is required to be established. The
express agreement need not be proved. The evidence as to the
transmission of thoughts sharing the unlawful act is not
sufficient…”
26. In view of the clear enunciation of law on the criminal
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conspiracy by this Court, we find that the prosecution has
failed to produce any evidence whatsoever to satisfy the Court
that there was a prior meeting of minds between the Appellant
and A-1 and A-2. There is no physical manifestation of such a
concurrence extractable from surrounding circumstances,
declarations, or the conduct of the Appellant. The evidence is
shorn of even a passive acknowledgment of conspiracy of the
Appellant alone heralding a clear and conscientious
participation of the Appellant in the conspiracy. As noted
above, this Court has cautioned against replacing mere
suspicion with the legal requirement of proof of agreement.
27. For the reasons stated above we are of the opinion that the
prosecution failed to establish the circumstances in which the
Appellant, being the custodian of only one set of the keys for
the dual lock system functional in the Bank, could alone be
made responsible for providing access to the strong room and
the safe in the Bank. We are also of the clear opinion that the
prosecution failed to establish the existence of any agreement
between the Appellant, A-1 and A-2, which is quintessential for
a charge under Section 120B of the IPC. In the absence of such
an agreement, even by inference through circumstantial
evidence, the Appellant is entitled to be acquitted of the charge
of criminal conspiracy.n State (NCT of Delhi) v. Navjot
Sandhu, this Court held:
“101. One more principle which deserves notice is that the
cumulative effect of the proved circumstances should be taken
into account in determining the guilt of the accused rather than
adopting an isolated approach to each of the circumstances. Of
course, each one of the circumstances should be proved beyond
reasonable doubt. Lastly, in regard to the appreciation of
evidence relating to the conspiracy, the Court must take care to
see that the acts or conduct of the parties must be conscious
and clear enough to infer their concurrence as to the common
design and its execution.” (emphasis supplied)
13. PW-2 Sh. Manoj has deposed that he is working as Guard in a
private security company. On 23.09.2013 he had informed the police
during inquiry from him that mobile no. 8744806631 does not belong to
him as he had never purchased and used it. PW-2 had shown his voter ID
card to the police. PW-2 has deposed that he had given photocopy of his
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in some BPO. Accused Gautam Jain is correctly identified by PW-2
before the Court. It is further deposed that in the year 2008-2009 PW-2
was working as Collection Agent in a BPO where attested photocopy of
his documents were asked to be deposited. PW-2 had given documents of
his educational qualifications, address proof, ration card, voter ID card
and one form having photograph to the accused Gautam Jain working
there after getting the same attested from SDO. PW-2 used to do field
duties in the BPO. He has deposed that accused Gautam Jain has used his
identity for the purpose for getting mobile phone connection. The
consumer application form is shown to the PW-2 in respect of above
mobile phone in which the witness PW-2 has identified his photograph
correctly at point X. PW-2 has also identified his voter ID card as
Ex.PX-1. It is deposed by PW-2 that the customer application form does
not bear his signature at point Y and his signatures are forged. PW-2 had
helped the police in apprehending the accused Gautam Jain. PW-2 had
made a mobile phone call to accused Gautam Jain and came to know that
accused Gautam Jain was near GTK depot where PW-2 reached with the
police. At the instance of PW-2 the accused Gautam Jain was
apprehended vide arrest memo Ex.PW2/A bearing signature of PW-2 at
point A.
14. PW-4/Sh. Jai Prakash has deposed that in the year 2013 he
was working as Salesman in Aditya Enterprises who had dealership of
Idea Cellular company in Derawal Nagar. PW-4 used to supply recharge
coupon and SIM card of Idea company in the region of Burari. On
28.09.2013 the police inquired regarding delivery of SIM card bearing
connection no. 8744806631 to one shop M/s. Dimple Telecom. PW-4 had
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confirmed the delivery of the SIM to M/s. Dimple Telecom.
15. PW-5 Sh. Bijender Saini has deposed that in the year 2013 he
was working with Aditya Enterprises. His duty was to collect customer
application form from the shops which were deposited with the
shopkeepers/shop by the customers after having purchased SIM cards.
After collection of the customer application form he had deposited them
at Aditya Enterprises. The CAF was in the name of Manoj and it was
filled by PW-5 which already had signature of the customer with
alternative number of the customer. PW-5 had stamp of the shopkeeper
from where it was sold which is in name of Dimple Telecom. The CAF
form was accompanied by one photocopy of voter ID card in the name of
Manoj and the said voter ID card already had signature in the name of
Manoj. The CAF form is Ex.PW5/A. The voter ID proof is Ex.PX-1. It is
suggested to PW-5 by ld. Counsel for accused no. 1 that the form was
filled by PW-5 in the year 2011 which is denied by PW-5 in that he was
not working in the year 2011. Two or three days before the call of police
PW-5 had received message to collect CAF form from M/s. Dimple
Enterprises in which PW-5 has filled the dates. It is further deposed in
cross-examination that there is no system of delivering SIM cards on
footpath. It is deposed that the form was filled by PW-5 at the shop of
M/s. Dimple Telecom at the request of the shopkeeper. PW-5 used to
receive message of activation of the mobile phone and the mobile phone
was provided to him by the distributor.
16. PW-6 Ms. Raj Dhingra mother of the deceased has deposed
that about 5:15 PM she had received a call on her mobile no. 9718703685
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from mobile no. 8744806631 asking for ransom. The caller had
introduced himself as Khurshid. She had again received telephone call on
her mobile regarding ransom and informed her husband about receipt of
call of ransom when her husband had returned from police station.
Second call was attended by her daughter Ms. Gurpreet Kaur @ Mado.
PW-6 had overheard the voice on the mobile phone when the caller was
saying that PW-6 and her family had gathered the crowd who should stop
the same otherwise the accused will not call. When Ms. Gurpreet Kaur
asked the accused to arrange the talk with the abducted child Jatin
Dhingra aged about 13 years then the caller had disconnected the call.
The third phone call was received by Ms. Simran who is daughter-in-law
of sister of PW-6. The caller had asked Ms. Simran to close the drama
and arrange Rs.40 lakhs otherwise they will kill the abducted child Jatin
Dhingra. PW-6 was confronted by ld. Counsel for accused no. 2/Sandeep
Kumar S/o Sh. Rattan Singh that it is recorded in her statement under
Section 161 Cr. P.C. Ex.PW6/DA portion A to A that she had stated to IO
that “मुझे फिरौती माँगने वालों ने, अपना नाम, पता और जानकारी नहीं दी है “.
PW-6 has denied so stated to the IO SI Rajesh Kumar and it is further
deposed that she had received call at 5:30 PM. It is admitted as correct
that name of Khurshid was not told by her in her statement dated
21.09.2013. PW-6 does not remember whether in her statement dated
21.09.2013 under Section 161 Cr. P.C she had stated that in the first
telephone call the caller had said ” अल्लाह कसम खुर्शीद बोल रहा हूँ” and
she was confronted with Ex.PW6/DA where this fact is not mentioned.
PW-6 further does not remember in cross-examination dated 17.08.2015
at page 3 if she had stated on 21.09.2013 under Section 161 Cr. P.C. to
the police that the second call was attended by her daughter Ms. Gurpreet
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Kaur @ Mado and caller was saying that they had gathered the crowd
which be stopped otherwise the caller will not call or that her daughter
was asked to arrange a talk with Master Jatin Dhingra. PW-6 further does
not remember about demand of Rs.40 lakh from the caller in the third call
received by Ms. Simran or that the caller has asked to close the drama
failing which they will kill Master Jatin Dhingra. The above facts are also
not recorded in Ex.PW6/DA. PW-6 has deposed that mobile no.
9718703685 belongs to her and the service provider is Idea Cellular
Company. It was a prepaid connection and the SIM was used in Samsung
handset.
17. PW-7 is Sh. Aditya Bhatia who was distributor of Idea
Cellular Limited in the year 2013. On 19.12.2013 he had given the
delivery challan of the SIM card used vide seizure memo Ex.PW7/A and
the copy of delivery challan is Mark PW7/1. He had received 1868 SIM
cards from Idea Cellular Company and delivered them to different
shopkeepers through their sales executives. One among the said SIM
cards was used in this case. It is deposed in cross-examination that
document Mark PW7/1 is computer generated which does not bear
signature and it does not bear stamp of Idea Cellular Company. SIM
cards were always given in packed condition. It is admitted as correct
that if the SIM card was packed on 30.08.2013 then it cannot be
delivered through a challan invoice dated 09.06.2013. The serial number
of SIM contains 20 digits.
18. PW-9 Ms. Simran Kaur has deposed that she had visited the
house of Smt. Raj Dhingra/PW-6 one day prior to the incident as PW-6 is
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suffering from dengue and PW-9 is mausi of husband of PW-6. On
21.09.2013 a telephone call was received on the mobile phone of PW-6
last two digits of which were bearing no. 31 and ransom was demanded
for a sum of Rs.40 lakhs. First call was heard by PW-6 and another call
was heard by daughter of PW-6 Ms. Gurpreet/PW-10. Threat was given
to kill the child on failure to give the ransom. She remained in the house
subsequently for 2-3 days. The caller had stated to close the drama failing
which they will kill Master Jatin Dhingra.
19. PW-10 Ms. Gurpreet Kaur has deposed that on 21.09.2013 in
the evening a call was received on mobile phone of her mother/PW-6 in
which the caller had told that he has kidnapped Master Jatin Dhingra and
ransom was demanded. PW-10 had attended the second call in which the
caller had asked that you have accumulated the whole locality and he will
not call back again. When PW-10 had asked to allow her to have a talk
with her brother Master Jatin Dhingra then the caller did not allow it. The
third call from the kidnapper was received by sister-in-law of PW-10 who
has deposed as PW-9. The caller had asked PW-9 to close the drama and
to keep quiet and also to arrange Rs.40 lakhs otherwise they will kill the
child.
20. PW-12 Sh. Shyam Sunder @ Sunny has deposed that in the
year 2013 he was working in the shop of Sh. Harish Kumar in the name
and style of Dimple Telecom. On 17.09.2013 he had sold a SIM card to a
person who had produced documents in the name of Manoj. ID proof and
photograph was provided. The PW-12 has correctly identified the
accused Mukesh Kumar as the person who had came to purchase the SIM
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card. During cross-examination by ld. APP it is admitted as correct by
PW-12 on 22.09.2013 that he had confirmed to police that the SIM was
sold by him on the CAF shown by the police. PW-12 has turned hostile to
the fact having stated to the police in the statement under Section 161 Cr.
P.C. that the photograph and the face of accused Mukesh Kumar did not
match with each other who came to purchase the SIM whereas it is
recorded at portion A to A in statement Mark PW12/1. It is admitted as
correct by PW-1 that he had asked accused Mukesh Kumar for signature
on the form on which accused Mukesh Kumar had replied to get the
signature done from Manoj. After about half an hour accused Mukesh
Kumar returned with the signature and handed over signed form to
PW-12. The details in the form were filled up by another salesman.
PW-12 has mentioned alternate number on the form. He had identified
accused Mukesh Kumar at the police station on 27.09.2013 to whom the
SIM card was sold. The number of mobile phone was 8744806631.
20.1 In cross-examination it is deposed by PW-12 that the shop of
Dimple Telecom was situated at Takia Chowk, Burari. The name of
salesman remembered by PW-12 who had filled the CAF form is Gaurav.
The owner Harish was present at the shop at the time of issuance of CAF
form and SIM card. He did not verify the alternate number added by
accused Mukesh Kumar. No other person was working at the shop at the
time of issuance of the SIM card in the case except PW-12 and the owner
Harish. PW-12 had studied upto 10th class. There was no such direction to
issue SIM card without seeing the original ID proof. It is admitted as
correct that the mobile connection is activated only after physical
verification of the documents by the company. It is denied that prepaid
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SIM card are issued after due physical verification. Such procedure is
adopted only in postpaid connection.
21. PW-14 Sh. Balwan Singh, Div. Engineer MTNL, Narela has
deposed that Manoj Kumar was working as Generator Operator at Khera
Khurd Exchange whose photocopy of ID was attested by him on
16.01.2009 alongwith other documents as he knew him. He had attested
the documents after seeing the original. Such attestation was confirmed
by him to the IO. Manoj Kumar did not disclose the detail of job for
which he got the documents attested nor PW-14 had asked about it. The
documents attested are Ex.PW14/A to Ex.PW14/D. He has correctly
identified the photograph at point X of Manoj Kumar in CAF form
Ex.PW5/A and signature are identified at point Y.
22. Ct. Bani Ram/PW-18 has deposed that custody of accused
Sandeep Kumar @ Sunny was handed over to him and Ct. Paramjit. On
26.09.2013 PW-18 had joined the investigation again and from the shop
of accused Sandeep Kumar @ Sunny among other article one SIM card
was recovered which were seized vide memo Ex.PW18/B. He does not
remember the time when they had reached house of accused Sandeep
Kumar @ Sunny. Again said it was 11/11:30 AM. He does not know the
number of storeys of the house of accused Sandeep Kumar @ Sunny or
who had opened the door of the house or what are left and right side
situation of the house or which family members of accused had met them
or the number of family members available.
23. PW-19 Sh. Kishor was running a mobile shop in the year 2013
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in the name and style of Kishor Communication at main road, Nathupura.
On 16.09.2013 around 1:30 PM two boys came to his shop one of which
was healthy and another boy was tall. They had asked for mobile phone
and SIM card. They were told that PW-19 is selling mobile phone only
and not the SIM card. They went away and came back after sometime
with a SIM card and asked PW-19 to insert that SIM card in some mobile
to check working condition of said SIM card. PW-19 had refused on
which they had asked to show some mobile phone. They had chosen
some mobile phone of Santosh Company having capacity of dual SIM.
The boys offered Rs.600/- in place of asked price of Rs.650/- which
PW-19 declined. The boys left the shop again and returned back after 10-
15 minutes and they had purchased the mobile at the price of Rs.650/-.
The small boy had told that he runs a shop of chemist and after that he
made payment for purchase of mobile. Receipt was issued to him/Sh.
Sandeep the smaller boy. He had identified both the boys on asking of
police at his shop after few days. The bill book is Ex.PW19/A and carbon
copy of bill no. 851 is Ex.PW19/B. On 28.09.2013 PW-19 had identified
the accused Sandeep in TIP proceedings who was having shop of
chemist, the boy in small height. The boy was identified as the same boy
who had purchased the mobile phone from his shop and accused no. 4
Sandeep Kumar @ Sunny is correctly identified by PW-19 before the
Court. PW-19 has identified his signatures in TIP proceedings in
Ex.PW15/B at point B. The tall boy is correctly identified by PW-19
before the Court who is accused no. 2 Sandeep Kumar.
23.1 It is admitted as correct by PW-19 in cross-examination that
bill no. 803 is blank in the bill book and it is explained by PW-19 that it
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was meant for carbon copy. It is admitted as correct that on 16.09.2013
only one bill was issued. The bill book Ex.PW19/A are not shown in
ledger/cash book for the reason that the bill book is meant for sale of
items received from Gaffar Market. Bill no. 834 to 848 were issued from
another shop in the handwriting of PW-19. He maintain only two bill
books. The articles with TIN number are only shown in ledger book and
cash book. It is admitted as correct that bill no. 849 is dated 16.09.2013
and bill no. 850 is dated 11.09.2013. He had accompanied the police to
the police station alongwith the accused and he had seen the accused
properly. He remained at police station around 11 AM till 5:00 PM. In
cross-examination it is deposed that the mobile phone Santosh L-11 is a
small size phone which mostly comes in black colour. It is admitted as
correct that name, parentage and address of accused no. 2 Sandeep
Kumar was not mentioned in the bill Ex.PW19/B. Slips are issued on
purchase of mobile phone which are received from Gaffar market. The
bill book has remained with him till 25.09.2013 and after that he handed
over it to the police.
24. PW-23 Ct. Sanjay has deposed that on 26.09.2013 accused no.
4 Sandeep @ Sunny had taken the police to his house at K-Block,
Jahangirpuri and got recovered two keys of his shop hanged on a nail
possession of which was taken by the IO. One pouch of SIM card of Idea
was also recovered from the shop of accused Sandeep @ Sunny which
was seized by the IO. The Idea SIM card was seized vide memo
Ex.PW23/A bearing signature at point A. The one pouch of Idea SIM
card pertaining to mobile phone no. 8744806631 was correctly identified
by the witness which was seized from accused no. 4 Sandeep @ Sunny
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and the pouch of Idea SIM card is Ex.PX-4.
25. PW-28 HC Devender has deposed that on 24.09.2013 he was
working as MHC(M) at PS Burari when Insp. Paramjit Singh deposited
one sealed parcel with him with the seal of PS which contain 04 mobile
phone and one key apart from personal search of the accused. PW-28 had
deposited the parcel in the Malkhana vide entry at serial no. 2211/2013 in
register no. 19. Relevant entries of which are Ex.PW28/A. In cross-
examination it is deposed by PW-28 that he did not check the working
order of mobile phone. He did not take signature of Insp. Paramjit Singh
in register no. 19 and nor of Ct. Naveen while handing over exhibits to
him.
26. PW-29 HC Chander Pal has deposed that on 25.09.2013 IO
had called owner of Kishor Communication at the police station. IO had
seized receipt book of mobile vide seizure memo Ex.PW29/A which
bears signature of PW-29 at point A.
27. PW-32 SI Vishwanath has deposed that on 25.09.2013 he had
taken complainant to Tihar Jail for conducting TIP of accused Mukesh
Kumar and the accused Mukesh Kumar had refused to participate in TIP.
One TIP proceedings of Mukesh Kumar Sharma is Ex.PW15/X1 wherein
the refusal of TIP proceedings of accused Mukesh Kumar Sharma
without Oath are that his photographs were taken by the police officials
at the police station and the said photographs must have been shown by
the police to the witness.
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28. PW-33 SI Ravi Kumar has deposed that Sh. Manoj had told
Insp. Naresh and SI Rajesh in his presence that accused Gautam Jain has
used his ID for obtaining the SIM from which the ransom call was made
and Sh. Manoj has led the police to the house of Gautam Jain at
Jahangirpuri where he was not found. Then Sh. Manoj had taken the
police to GTK depot and at the instance of Manoj accused Gautam Jain
was apprehended who was standing there. Thereafter PW-33 alongwith
Insp. Paramjit, Insp. Naresh of Operation Cell, SI Rajesh and accused
Sandeep went to Bengali Colony in gali no. 16 where at the instance of
accused Sandeep the accused Mukesh Kumar Sharma was apprehended
and at the instance of Sandeep and Mukesh accused no. 4 Sandeep @
Sunny was apprehended opposite Sunny Medicos on the Pepsi road.
Accused no. 4 Sandeep @ Sunny was having a black colour bag which
was found containing a mobile phone in a polythene and one SIM card of
Idea was found in the mobile. The recovered articles were sealed in a
parcel. In cross-examination by ld. APP for the State the PW-33 has
admitted as correct that mobile phone was recovered in formal search of
accused Gautam Jain which was seized vide seizure memo Ex.PW33/B.
The mobile phone was produced before the Court in unsealed condition
wrapped in polythene which was of make of Samsung and same is
Ex.PY-1.
29. In cross-examination it is deposed by PW-33 that the team
constituted at PS Burari was comprising of SI Rajesh, HC Pawan and Ct.
Rehman. He did not know the name of members of the team from
Operation Cell. Two suspects namely Manoj and Sandeep had gone to
Operation Cell. They reached at Operation Cell at 12:30 PM. There
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investigation had continued till 1:00 AM or 2:00 AM the morning of
24.09.2013. Insp. Naresh Kumar had interrogated the suspect Manoj
Kumar in presence of PW-33. PW-33 in cross-examination dated
19.02.2019 has deposed that he does not remember whether any article
belonging or related to the present case was recovered from the person of
accused no. 2 Sandeep Kumar. It is admitted as correct that accused no. 4
Sandeep @ Sunny was apprehended in front of Sunny Medicos at Pepsi
road, Burari. No public person was present. He does not remember if
PW-19 Kishor was called at Operation Cell as public person.
30. PW-34 Ct. Rajesh Tanwar has deposed that on request of IO
Insp. Paramjit voice sample of accused no. 2 Sandeep Kumar was taken
in the FSL and cassette/CD were handed over to IO. The sealed parcel
containing the voice sample of PW-34, HC Pawan and perhaps of IO
were taken which were seized vide memo Ex.PW34/B. PW-34 cannot say
whether the voice sample was in CD or cassette.
31. PW-35 HC H. Rahman has deposed that one person Manoj
Kumar was apprehended on the basis of ID proof. One accused Sandeep
Kumar was apprehended on the basis of suspicion. Sh. Manoj Kumar has
disclosed that he had given his document of identity in the year 2009 to
one accused Gautam Jain resident of Jahangirpuri. Manoj Kumar took the
police team to the house of Gautam Jain where he could not be found.
When the police team was returning and reached near GTK DTC depot
then on pointing out by Manoj Kumar the accused Gautam Jain was
apprehended. Accused Gautam Jain after his apprehension was brought
to Operation Cell, Maurice Nagar. Accused Gautam Jain was arrested
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vide memo Ex.PW2/A and his disclosure statement is Ex.PW35/B.
Accused Sandeep Kumar was arrested vide memo Ex.PW35/C whose
disclosure statement is Ex.PW35/E. Accused no. 2 Sandeep Kumar led
the investigation team to accused Mukesh who was apprehended and
arrested vide memo Ex.PW3/B and his personal search is Ex.PW35/F.
The disclosure statement of accused Mukesh is Ex.PW35/G. It is deposed
that accused no. 4 Sandeep Kumar @ Sunny was apprehended at the
instance of accused no. 2 Sandeep Kumar and accused no. 3 Mukesh.
Accused no. 4 Sandeep @ Sunny was arrested vide memo Ex.PW3/C and
his disclosure statement is Ex.PW35/J. Accused Mukesh Sharma took the
raiding party at Dimple Telecom village Burari and he had informed the
police that he had purchased the SIM card from Dimple Telecom and
thereafter made a ransom call from that number. It is admitted as correct
that accused Mukesh on his formal search one mobile phone was
recovered from his possession which was seized vide memo Ex.PW35/L.
Two mobile phone were recovered from accused no. 4 Sandeep @ Sunny
which were sealed vide memo Ex.PW35/M. The bag of accused no. 4
Sandeep @ Sunny was seized vide memo Ex.PW35/N= Mark A. The
black colour mobile phone of Samsung company is identified by the
witness recovered from accused Gautam Jain which is Ex.PY-1. Another
mobile phone seized from accused Mukesh is Ex.PY-3 which is make of
black colour Nokia mobile phone. Ex.PY-4 and Ex.PY-5 are two mobile
phone seized from accused no. 4 Sandeep @ Sunny. One of which was of
make Docomo and another was of make Orion. The brown colour
envelope was produced in an unsealed condition. Three mobile phone of
make Samsung, Micromax and other touch screen Micromax mobile
phone were produced by MHC(M) which were seized from accused
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Sandeep Kumar vide Ex.PY-6, Ex.PY-7 and Ex.PY-8. The black colour
bag seized from accused no. 4 Sandeep Kumar @ Sunny is Ex.PY-9. It is
further deposed that on 21.09.2013 the father of the child joined them and
remained there for about 30 to 45 minutes.
31.1 In cross-examination dated 23.08.2019 PW-35 has deposed
that IO had taken voice sample and specimen signature of Manoj Kumar.
He had told IO that Manoj Kumar had given form for training and voter
ID card alongwith photograph to Gautam Jain which was confronted to
him as it is not recorded in his statement under Section 161 Cr. P.C. from
A to A in Ex.PW35/D1. It was by chance when they were returning from
house of Gautam Jain and reached near GTK depot then Manoj Kumar
had pointed out towards Gautam Jain at about 10:15 AM. At GTK depot
they had stayed for about 15 minutes and documents pertaining to arrest
of Gautam Jain were prepared in the said period which includes arrest
memo. A mobile phone was recovered from the person of Gautam Jain
and seizure memo was prepared. In cross-examination it is deposed that
at the time of arrest of accused no. 4 Sandeep the shop M/s. Sunny
Medicos was open. The disclosure statement of accused no. 4 was
recorded at that place and PW-35 had signed it as attesting witness. No
public witness was called. One mobile phone was seized in personal
search of accused Mukesh Kumar Sharma. The disclosure statement of
accused Mukesh Kumar was recorded in presence of PW-35. PW-35 had
seen the mobile used in this case in crime. However he does not know the
number of mobile.
32. PW-36 has deposed that on 16.12.2013 he had taken 06 sealed
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parcels alongwith one sample seal to FSL, Rohini and deposited the
exhibits under the directions of IO. He has deposed that so long the
exhibits remained in his custody and they were not tampered in any
manner.
33. PW-37 SI Rajesh Kumar has deposed that he went with his
staff to the house of complainant Kishan Lal and met the mother of the
deceased namely Ms. Raj Dhingra. Ms. Raj Dhingra had informed
PW-37 that she had received a ransom call. He got the ownership of
mobile number from which ransom call was received, verified and found
that the mobile number is issued in the name of Manoj Kumar. Mr.
Manoj Kumar had stated to PW-37 that he is not aware about this
connection. In the CAF form address of customer was given of the place
Jahangirpuri. Mr. Manoj Kumar has told PW-37 that he had given
attested photocopy of ID proof/documents with one photograph to
accused Gautam Jain for some job purpose. They were given few years
ago when Manoj was working in some BPO and Gautam Jain was also
working there. After arrest of accused Mukesh and during investigation
PW-37 alongwith complainant and accused no. 1 Gautam Jain, accused
no. 4 Sandeep alongwith accused Mukesh left for PS Burari and on the
way accused Mukesh Kumar had pointed out the shop from where he had
purchased the SIM card.
33.1 On 24.09.2013 the police raiding team with accused person
have went to the house of Gautam Jain where accused Gautam Jain
recovered the photocopies of documents of Manoj from his house which
were seized vide memo Ex.PW37/A. The photocopy so recovered are
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collectively marked as Mark PW37/1. Thereafter accused Sandeep
Kumar got recovered the Wagon R car in which the abducted child was
carried which was seized vide memo Ex.PW37/B. While returning to PS
the accused no. 4 Sandeep had identified the shop from where he had
purchased the mobile set. PW-37 has correctly identified the black colour
mobile phone of Samsung company recovered from accused Gautam Jain
which is Ex.PY-1. 03 mobile phones of make Samsung, Micromax and
one touch screen Micromax were recovered from accused Sandeep vide
Ex.PY-6, Ex.PY-7 and Ex.PY-8. PW-37 in cross-examination dated
05.07.2017 was not able to indicate the seizure memo in respect of
documents received from the service provider pertaining to mobile phone
subscription. It is admitted as correct that Manoj was with PW-37 on
22.09.2013 when CAF was received. PW-37 did not collect any
document indicating authorization or agency in SIM card sale from
Shyam Sunder @ Sunny. It is admitted as correct that Shyam Sunder was
employee of M/s. Dimple Telecom. It is admitted as correct that Mr.
Harish was owner of the shop who was doing only mobile repairing job.
PW-37 does not remember if he had obtained CDR and CAF of the
relevant period in respect of phone no. 9718703685. PW-37 cannot tell
who was subscriber of the phone on which ransom call was received. He
also cannot tell whether the subscription was prepaid or postpaid
connection. It is deposed by PW-37 that the subscription detail of phone
which was used to make ransom call was received on 21.09.2013 and the
CAF was probably received on 22.09.2013. He had received
investigation on 21.09.2013 at about 7 PM and he cannot tell when he
had sought details of the said phone number on 21.09.2013. It is deposed
that CAF in the form of electronic image was received prior to obtaining
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original hard copy. The original hard copy of CAF is Ex.PW5/A which
was already received by earlier IO. It is admitted as correct by PW-37 in
cross-examination dated 06.07.2017 that it is not mentioned by him in
DD No. 13A that he had left PS alongwith Manoj Kumar, Manoj Pal and
Ajit Singh on 22.09.2013.
33.2 It is deposed by PW-37 in cross-examination dated
07.07.2017 that the number from which ransom call was made was not
put under surveillance by him however call details of number and
ownership details were taken that in whose name the SIM card was
registered. He does not remember that who gave instruction to service
provider to provide ownership details. It is deposed that on 22.09.2013
the CAF details were collected by PW-37 through electronic media by E-
mail. He does not remember who sent the E-mail but it was service
provider. On 23.09.2013 Manoj had made a call to Gautam Jain from a
mobile phone. It is deposed by PW-37 that accused Gautam Jain was
apprehended on pointing out of Manoj but no pointing out memo was
prepared. In cross-examination dated 07.07.2017 (after lunch time)
PW-37 had recorded the confession of accused Gautam Jain at about 2:15
PM to 2:30 PM. The arrest memo and personal search memo were
prepared at 3:00 PM. Certain documents were recovered from accused
Gautam Jain. PW-37 did not investigate the SDO who had attested the
documents of Manoj.
34. PW-38 had sent one sealed parcel alongwith sample seal to
FSL, Rohini through Ct. Naveen on 01.11.2013. The copy of RC is
Ex.PW38/A and the handing over memo of such deposit is Ex.PW38/B.
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Similarly another parcel was sent to FSL, Rohini vide Ex.PW38/C and
the memo of receipt of parcel is Ex.PW38/D which were also sent on
01.11.2013. On 16.12.2013 PW-38 had sent six parcels with sample seal
to FSL, Rohini and the copy of RC is Ex.PW38/E and memo of receipt of
parcel is Ex.PW38/F.
35. PW-39 ASI Pawan Kumar has joined investigation on
23.09.2013 alongwith SI Ravi and Ct. H. Rehman. One Manoj Kumar
and accused Sandeep Kumar were available with IO and they together
went to Operation Cell, Maurice Nagar. Insp. Naresh and SI Rajesh had
interrogated Manoj who told them that he had given his photographs and
documents of his identity to accused Gautam Jain then they went in
search of accused Gautam Jain. Accused Gautam Jain was apprehended
at GTK depot and the police team had returned to Operation Cell,
Maurice Nagar. The accused no. 1 Gautam Jain was arrested vide memo
Ex.PW2/A and accused no. 2 Sandeep Kumar was arrested vide memo
Ex.PW35/C. The disclosure statement of accused were taken and by that
time it was confirmed that the murder of child had taken place and the
investigation was transferred to Insp. Paramjit. After some time the
raiding team had returned back to Operation Cell and accused no. 4
Sandeep and accused no. 3 Mukesh were brought in Operation Cell and
arrested. The accused Sandeep and accused Mukesh Kumar led IO and
PW-39 to a drain near Nanglipuna and both of them had pointed out the
place where they had thrown the dead body of the child. One dead body
was noticed by the accused person lying in the drain facing downwards.
Then they had returned to Burari village where accused Mukesh had
pointed out a shop from where he had purchased the SIM. The
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complainant alongwith his brother-in-law were also present during
investigation. On 24.09.2013 accused no. 2 Sandeep and accused no. 4
Sandeep @ Sunny led police party to Nathupura and pointed out towards
a shop from where they had purchased the mobile phone. Accused no. 2
Sandeep Kumar on 27.09.2013 was taken to FSL, Rohini where his voice
sample is taken. Voice sample of PW-39, IO Insp. Parmajit and of Ct.
Rajesh was also taken at FSL, Rohini and the seizure memo of such voice
sample cassettes is Ex.PW34/B. In post lunch cross-examination PW-39
on 08.09.2017 does not know the name of owner of the shop Krishna
Communication, he does not know number of the shop adjacent to the
said shop, he does not know from whom the inquiries were made by the
IO, if any public witness had signed arrest memo of accused no. 4
Sandeep or when accused no. 4 Sandeep and accused no. 3 Mukesh were
brought. Documents of arrest of the said accused were not prepared in his
presence.
35.1 PW-39 does not remember time of interrogation of Manoj nor
does he know when Manoj had joined the investigation. However he had
seen Manoj participating in investigation on 23.09.2013. It is deposed by
PW-39 that he remained associated with the investigation most of the
time on 23.09.2013 and 24.09.2013. No writing work was done at GTK
depot. He does not remember any document in the name of Gautam Jain
was seized. It is admitted as correct that Section 302 IPC in the matter
was added later on. The accused no. 2 Sandeep was arrested in the
afternoon but not in presence of PW-39. It is deposed in cross-
examination dated 13.12.2017 at page 3 by PW-39 that the voice sample
was taken through an equipment which has a system of tape recording
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and a mike. He does not remember if the cassettes containing voice
sample was sealed with the seal of FSL. It is deposed that the seal of PS
was given to PW-39 at the office of FSL after use which he returned to
IO after deposition of case property with MHC(M). The site plan was
prepared in presence of PW-39 where from the dead body was recovered.
He cannot tell at whose instance the site plan was prepared. The
complainant had identified the dead body in presence of PW-39 and
brother-in-law of complainant.
36. PW-40 had prepared scaled site plan Ex.PW40/A of the spot
near Royal Garden Farm House which was prepared at the instance of IO
/Insp. Paramjit Singh. The rough notes of preparation of scaled site plan
were destroyed after preparation of site plan.
37. PW-41 Amarnath Singh Nodal Officer of Idea Cellular
Limited had given CDR of mobile no. 8744806631 for the period
18.09.2013 to 22.09.2013 to the IO which is Ex.PW41/A. He also handed
over CAF to the IO. As per record the mobile connection was issued in
the name of Mr. Manoj Kumar. CAF with ID proof is mark Ex.PW41/1.
The original CAF could not be traced because on 22.09.2017 a fire had
taken place in the office of the company around 12:12 PM and the said
record was burnt in the incident. Copy of complaint to the police
regarding the said fire is Ex.PW41/B. Photocopy was brought and
original was not brought which was objected by the ld. Counsel for the
accused. The cell ID chart was also given to the IO vide Ex.PW41/C (43
pages) and the certificate under Section 65B in above respect is
Ex.PW41/D.
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37.1 He had given certified copy of CAF form. It is deposed that
customer had visited the retailer and filled CAF on 18.09.2013. The
application form was received by the distributor on the same day and in
the warehouse on 18.09.2013. The retailer of mobile connection was
Dimple Telecom. It is admitted as correct that date of retrieving the cell
ID chart Ex.PW41/C is not mentioned in it. The documents were handed
over to the police on 22.09.2013. It is admitted as correct that location of
the SIM card was shown only when the SIM card is inserted in the
mobile.
37.2 PW-41 in cross-examination dated 20.05.2022 has proved
letter Ex.PW41/E which was written by Insp. Paramjit Singh/IO for
providing voice clipping record of the mobile no. 8744806631 at the time
of activation and it was provided in CD and letter in respect of which is
Ex.PW41/F. The certificate under Section 65B of Indian Evidence Act
Ex.PW41/G brought by PW-41 as the voice clipping was retrieved from a
computer system using a CD writer from Idea Cellular Ltd. and presently
M/s. Vodafone Idea Ltd. The voice clipping was password protected and
accessible to PW-41 only. The CD is proved on record as MO-1. In cross-
examination it is deposed as correct that in Ex.PW41/F vide which the
voice recorded CD was received does not bear signature of police officer
receiving the CD. Seal on CD was not affixed in his presence. At the time
of handing over CD PW-41 did not furnish certificate under Section 65B
of Indian Evidence Act. He was Nodal Officer in Delhi from 2012 to
2015 for DOT and Law Enforcement Agency. The CDR format was made
in accordance with DOT guidelines and the dates are in ascending order
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mentioning the latest date in the beginning. The seizure memo of original
CAF dated 05.12.2013 bears signature of PW-41 at point A and the
document is Ex.PW41/DX. The CAF form and voter ID card got attached
with the seizure memo which are photocopy Mark PW41/DX1. It is
admitted as correct that CDR does not bear the server number and the
CDR Ex.PW41/A does not have identification of server from where it
was attracted. It is deposed by PW-41 that the mobile number was
allotted to Delhi circle. He did not prepare Hindi transcript of the clip.
38. PW-42 Ct. Ajit Singh on 01.10.2013 delivered a letter to Idea
Cellular company under instructions of IO Insp. Paramjit Singh and the
officer at Idea Cellular company had handed back to PW-42 one compact
disc alongwith the letter which he handed back over to IO. The said CD
in envelope was sealed by the IO with the seal PS and seized vide memo
Ex.PW42/A. As long as CD remained in custody of PW-42 it was intact
and not tampered with. PW-42 does not know the name and designation
of officer of Idea Cellular company to whom he had handed over the
authority letter nor he does he remember that certificate under Section
65B of Indian Evidence Act was also given with the CD as it was in
envelope. However it is deposed that it was Nodal Officer. It is admitted
as correct that CD is not shown to him in the Court. However name of
Idea Cellular company was written on the CD.
39. PW-43 is Sh. V. Lakshmi Narasimhan, Assistant Director,
FSL, Delhi has deposed that two sealed parcel were received at FSL,
Rohini on 01.11.2013 which were sent by SHO PS Burari through Ct.
Naveen. Parcel 1 had contained one compact disc with having one audio
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file which is marked as Ex.Q1. Another parcel containing one audio
cassette which was having specimen voice sample is marked as Ex.S1.
After examination on the basis of auditory and spectrography analysis
PW-43 found that Ex.Q1 was similar to Ex.S1 and the possible voice was
of the same person i.e. accused no. 2 Sh. Sandeep Kumar. Her report in
this regard is Ex.PW43/A. In cross-examination it is admitted as correct
that FSL Rohini lab was not recognised in the year 2014 or notified by
Government under Section 79A of Information Technology Act, 2000. It
is deposed that now it is recognised. Both the parcel were sealed with the
seal of PS. It is deposed that in the process of examination of electronic
data they always examine aspect whether the data is tampered with or not
though it is not mentioned in report Ex.PW43/A.
39.1 In FSL report Ex.PW43/A the result of examination is given
that the recorded speech samples for speaker marked Ex.S1 and the
subsequent acoustic analysis of speech samples by using computerized
speech lab revealed that voice exhibits of speaker marked Q1 is similar to
marked Ex.S1 in respect of there acoustic cues and other linguistic and
phonetic feature. It is recorded that Ex.1 is CD of Moserbaer which
contain one audio file no. 6181593.mp3 and it is marked as Ex.Q1.
Opinion is given that the voice exhibit of speaker marked Ex.Q1 and
Ex.S1 are possible voice of same person i.e. Sandeep Kumar/accused no.
2.
40. PW-44 Sh. Anurag Sharma, Assistant Director Regional FSL,
Delhi has deposed that on 10.01.2014 the questioned document Q1, Q2
and Q3 alongwith standard documents A1 and A2 of Manoj Kumar and
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S1 to S10 of one Mukesh Kumar Sharma, S11 to S20 of one Sandeep
Kumar/accused no. 2 were received. On examination of questioned
documents and standard documents the opinion is given that the person
who wrote blue enclosed signatures stamped and marked S11 to
S20/Mukesh Kumar Sharma had also wrote the red enclosed signatures
similarly stamped and marked Q2 and Q3. The second opinion is given
that it has not been possible to express any opinion on red enclosed
questioned signature stamped and marked Q1. The report is Ex.PW44/A
bears signatures of PW-44 at point A and B.
40.1 In cross-examination it is deposed that the examined
documents have not been shown to PW-44 in the Court. It is admitted as
correct he had not supplied the enlarged photographs to the IO. After
looking into documents PW-44 has deposed that documents A1 and A2
are in English language. It is admitted as correct that word Manoj marked
as Q2 is written in Hindi with blue ink and S1 to S10 of Manoj Kumar
are also in Hindi with blue ink. It is admitted as correct that PW-44 did
not carry ink analysis in this case as it was not asked. It is admitted as
correct that study of line quality is very essential in case of examination
of documents. PW-44 did not find dissimilarity in Q2 and Q3 with
reference to S11 to S20. It is deposed that once any signature fixed with
any person then it is understood that these signatures are not written by
any other person. It is deposed that the manner of head stroke of Q2 and
Q3 on the one hand and S11 to S20 on the other hand are similar. It is
admitted as correct that the worksheet and juxtapose chart are not
annexed with the report is Ex.PW44/A.
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40.2 In the report Ex. PW44/A Q1 and Q2 on customer application
form/CAF of Idea Cellular Ltd. and Q3 is on photocopy of voter ID card.
The A1 and A2 blue enclosed signatures are of Manoj Kumar, S1 to S10
are of Mukesh Kumar Sharma and S11 to S20 are of accused no. 2
Sandeep Kumar. The documents were examined with scientific
instruments which are magnifying glasses, stereo microscope, Docubox
Dragon etc. under different lighting condition. It is reported that Q1 and
Q3 are written freely, show natural variation and the standard S11 to S20
of Mukesh Kumar Sharma/accused no. 3 are also free in nature and show
natural variation. On comparison similarities are observed in execution of
various characters such as slightly curved initial vertical staff of Hindi
letter and blind eyelit at its foot which forms the diagonal stroke moving
upwards. Other similarities are described in the report and opinion is
given that the Q2 and Q3 and S11 to S20 are written by the same
person/accused no. 2 Sandeep and the signatures in blue stamped and
marked are similar the signature stamped and marked in Q2 and Q3.
Further opinion is given that it is not possible to express opinion on the
red enclosed questioned signature stamped and marked Q1 on the basis
of materials at hand.
41. PW-45 Dr. Kanak Lata Verma, Assistant Director, RFSL,
Chankyapuri, Delhi has deposed that on 01.11.2013 one sealed wooden
box with one sealed parcel alongwith specimen seals were received in
FSL Rohini through Ct. Naveen. The seals were found intact and
matched with specimen seals. The sealed wooden box containing viscera
of Jatin Dhingra in parcel 1 had contained exhibits 1-A, 1-B and 1-C. The
parcel 2 was sealed with the seal of PS which contained one sealed
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plastic container in which Ex.2 was found inside black coloured small
bowl. On chemical microscopic examination, TLC and GC-MS the Ex.2
was found containing Alprazolam (Benzodiazepine group of drugs).
Metallic poison, Ethyl and Methyl alcohol, Cyanide Phosphide,
Alkaloids, Barbiturates, Tranquilizers, Benzodiazepines and Pesticides
could not be detected in Ex.1A, Ex.1B and Ex.1C. The detailed report of
PW-45 is Ex.PW45/A. No cross-examination was done of this witness on
behalf of all the accused.
42. PW-46 ACP Naresh Kumar was participating in investigation
on direction of senior officers. On 22.09.2013 he met the SHO PS Burari
and thereafter met parents of the child. Obtained mobile number of the
caller of the ransom call from the mother of the child and sent requisition
of CAF and CDR through E-mail. On 23.09.2013 Sh. Manoj Kumar has
disclosed to SI Rajesh with whom PW-46 was present that he had given
the identity proof to one person namely Gautam Jain in the year 2009
which were given in connection with some interview in one company.
PW-46 had constituted a team member of which are PW-46, SI Sukhbir,
SI Ravinder, HC Yogender, HC Mahesh, HC Rajeev, HC Ismail, Ct.
Sudhir and Ct. Amit. Mr. Manoj was sent to house of Gautam Jain to
check his availability. Mr. Manoj informed that Gautam Jain was not
available in the house however he got mobile number of Gautam Jain
from wife of Gautam Jain. PW-46 called accused Gautam Jain on mobile
phone and made Mr. Manoj to talk with Gautam Jain on which accused
Gautam Jain had disclosed his whereabouts that he is reaching near metro
station GT Karnal road. In further examination-in-chief dated 08.11.2021
on pointing out of Mr. Manoj the accused Gautam Jain was apprehended
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near GTK depot from where he was brought to the office of Operation
Cell.
42.1 PW-46 has deposed further in his examination-in-chief dated
08.11.2021 that accused Gautam Jain had disclosed that he had given ID
proof of Manoj to his friend Sandeep/accused no. 2 to purchase SIM card
on the basis of said ID proof. It was disclosed by Sandeep/accused no. 2
to Gautam Jain during such taking of document that he had plan to
kidnap a child of his neighbour for the purpose of ransom. The accused
Gautam Jain was arrested vide memo Ex.PW2/A which bears signature
of PW-46 at point D. One mobile phone was recovered from accused
Gautam Jain used in communicating with co-accused which was seized
vide memo Ex.PW33/B. Disclosure of accused Gautam Jain was
recorded. Accused Gautam Jain disclosed involvement of accused no. 2
Sandeep and accused no. 2 Sandeep had disclosed involvement of
accused Gautam Jain, Mukesh Kumar and Sandeep @ Sunny/accused no.
4. Accused no. 2/Sandeep was arrested vide memo Ex.PW35/C and he
had made disclosure that he alongwith accused Mukesh, accused no. 4
Sandeep had kidnapped Jatin Dhingra and murdered him. Three mobile
phones were recovered from accused no. 2 Sandeep which were used in
interaction with his associates and the said mobile phones were seized
vide memo Ex.PW35/A. Two mobile phones were of make Micromax
and one of the mobile was of make Samsung company. Accused no. 1
Gautam was left at the Operation Cell. PW-46 handed over investigation
to Insp. Paramjeet when PW-3 Kishan Lal, the complainant had joined
and accused no. 2 Sandeep and accused no. 1 Gautam were interrogated
by him.
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42.2 On pointing out by accused no. 2 Sandeep at gali no. 16,
Bengali Colony, Sant Nagar, Burari accused Mukesh was apprehended.
Accused no. 2 Sandeep and accused Mukesh led the police team led by
Insp. Paramjeet to Harit Vihar where accused no. 4 was apprehended in
front of Sunny Medicos shop. From accused no. 4 a black colour bag
with him was searched in which one mobile phone was found. Two
mobile phone were carried by accused no. 4 Sandeep on his person. The
phone found in the black bag of accused no. 4 was used to make ransom
call which was disclosed by accused person. One mobile phone was
recovered from accused Mukesh and key of Wagon R car was recovered
from accused no. 2 Sandeep. The accused no. 2 Sandeep and accused
Mukesh had taken the child/deceased Jatin Dhingra in drowsy condition
in Wagon R car to the drainage Nanglipuna, Delhi where the child was
smothered and strangulated and thrown in the drainage. Accused no. 2
Sandeep and accused Mukesh led the police team to the drainage where
the body was thrown and pointed out towards the body facing downward
lying in the drainage. The crime team and photographer was called. The
body was covered in mud which was cleaned with water which was taken
out by the diver called by the police at the spot. The black colour bag
recovered from accused no. 4 Sandeep is correctly identified by the
witness as Ex.PY-9 on which ‘Faster’ is written. The mobile phone which
was recovered in black colour bag is a red and black colour mobile phone
of make ‘Santosh’. The mobile phone has one battery and SIM card of
Idea bearing no. 89910434061381973942H2. The mobile phone and the
SIM card with battery are correctly identified by the witness recovered
from accused no. 4 Sandeep from his black colour bag which is
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Ex.PY-10(colly).
42.3 PW-46 in cross-examination dated 10.03.2022 does not know
about the source of water coming in the drainage where the body was
recovered and it was not a Pucca drainage. There is no cremation ground
near the drainage. It is deposed that the police team had reached the
drainage at 8:15 PM and took out the dead body at 8:30 PM. PW-46 left
the place of drainage with special staff around 9:15 PM. In cross-
examination dated 25.03.2022 it is admitted as correct in pointing out
memo Ex.PW3/G signature of accused no. 2 are not there. It is deposed
that the distance of Operation Cell, Maurice Nagar and the police station
is about 13-14 km. Police officials from PS Swaroop Nagar were called.
Public person were not there and person from Royal Farm House as
witness were not called. The dead body was bearing black and blue
colour T-shirt. The dead body was swelled, eyes were protruding out and
tongue was outside the mouth. It is deposed by PW-46 that personal
search memo of accused no. 4 which is Ex.PW35/H does not bear his
signature at point X. Nor does the disclosure statement Ex.PW35/J of
accused no. 4 bears his signature. However it is deposed that they were
written in his presence. It is admitted as correct that at PS Burari they did
not see the black bag recovered from accused no. 4. Site plan was
prepared by Insp. Paramjeet at 8:45 PM near the drainage.
42.4 In cross-examination dated 25.03.2022 by ld. Counsel for
accused no. 4 Sandeep it is deposed by PW-46 Sh. Naresh Kumar that the
disclosure statement of accused no. 1 Gautam Jain was recorded in his
presence on 23.09.2013. No person by the name of Kishore Kumar was
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examined by the IO in his presence. PW-46 was present during arrest of
accused no. 4 Sandeep. However personal search memo Ex.PW35/H and
Ex.PW35/J does not bear his signature. It is deposed that between 12:30
PM to 4:30 PM accused no. 1 Gautam Jain and accused no. 2 Sandeep
were arrested whose disclosure statement was recorded at about 3:30 PM
to 3:45 PM. Section 302 IPC was added after disclosure statement of
accused no. 2 Sandeep at about 4:00 PM. Accused Mukesh was
apprehended at about 4:15/4:30 PM. After arrest of accused no. 4
Sandeep and accused no. 3 Mukesh they had returned to Operation cell,
Maurice Nagar at about 4:45 PM. The dead body was not highly
decomposed but it was swollen. He left the drainage at about 9:00/9:15
PM.
42.5 In cross-examination dated 02.08.2022 of PW-46 ACP Naresh
Kumar by ld. Counsel Sh. Michael Peter for accused no. 1 it is deposed
by PW-46 that he did not have written order to join the investigation.
However on instructions of his ACP he left to join the investigation on
22.09.2013 at about 1:00 PM. It is deposed that he did not put the mobile
number on surveillance. He met the mother of child on 22.09.2013 and
PW-46 had joined the investigation at 1:00 PM on 22.09.2013. In cross-
examination dated 02.08.2022 it is deposed that pointing out memo was
not prepared when Manoj pointed out accused Gautam Jain.
43. PW-47 Ms. Poonam Sharma, Assistant Director (Biology)
FSL, Delhi has examined Parcel 1 to 6. It is deposed that blood was
detected in Ex.1 having 03 cloth pieces having light brown stains and
Ex.6 which is gauze cloth piece having brown stains described as blood
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gauze piece of deceased. However DNA profiles could not be generated
due to degradation of exhibits or due to presence of inhibitors. Blood
could not be detected on Ex. 2 one cloth piece having light dirty stains,
Ex.4 one small cushion having dirty stains and Ex.5 is also one small
cushion. Saliva could not be detected on Ex.3 which is bidi. The report is
Ex.PW47/A.
44. Ex.PW35/B is disclosure statement of accused no. 1 Gautam
Jain which is read in reference with evidence of PW-46 dated 25.03.2022
at page 4 where it is admitted as correct that name of the accused no. 4
Sandeep is not mentioned in the disclosure statement. It is pleaded by ld.
Counsel for accused that Section 120B IPC is not applicable when on
23.09.2022 even the name of accused no. 4 was not known with the
investigating agency. Evidence of PW-48 dated 18.03.2023 at page 1 is
referred where it is admitted by PW-48 as correct that name of accused
no. 4 Sandeep is not mentioned in disclosure statement Ex.PW35/B.
44.1 It is pointed by ld. Counsel for accused no. 2 that accused no.
1 Gautam Jain when allegedly made disclosure then he was not an
accused nor he was in police custody. He was not even named in the FIR.
Therefore it is submitted that this disclosure has no value and cannot be
relied upon.
45. The above submission of ld. Counsel for the accused appears
to be correct in view of citation titled Rajesh and Anr. Vs. State of M.P.
(2023) 15 SCR 1 (2023) INSC 839 (Coram 3) wherein it is laid down at
relevant para no. 22, 23, 24, 26, 28, 29 and 30 that being in custody of
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police officer and being an accused in an offence is indispensable
requirement to render a confession made before police admissible to
limited extent as per guidelines laid down under Section 27 of Evidence
Act. If the accused is subsequently taken into custody then such
information which would otherwise be admissible will become
inadmissible under Section 26 of Evidence Act as it did not come from a
person in the custody of a police officer. The information must be given
by the accused while he is in custody. What is admissible is the
information and not the opinion formed on it by the police officer. It was
further laid down that the fact discovered are not equivalent to the object
produced. The fact discovered embrasis the place from which the object
is produced and knowledge of the accused as to this. It is also laid down
that how the panchnama has to be prepared before carrying out such
discovery. In the present case by not mentioning the name of accused no.
4 Sandeep in the disclosure statement of accused no. 1 Ex.PW35/B the
investigating officer was not aware about the alleged involvement of
accused no. 4 to implicate him under Section 120 B IPC. At that time the
name of accused no. 4 was not known to the investigating team. Further
the panchnama/disclosure is not recorded by the investigating officer as
per guidelines laid down under law. The panchnama must have been first
prepared at the police station itself in presence of two or more
independent person preferably from the same locality which is not
complied with in the present case. It is also one of the requirement that if
any superior officer is present then they should also sign the panchnama.
The relevant para are reproduced hereasunder:
22. Section 26 of the Indian Evidence Act, 1872 (for brevity, ‘the
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whilst he is in the custody of a police officer shall be proved against
such person, unless it is made in the immediate presence of a
Magistrate. Section 27, thereafter, is in the nature of an exception
to Section 26 of the Evidence Act. It states 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. Therefore, it is essential under Section
27 of the Evidence Act that the person concerned must be ‘accused
of an offence’ and being in the ‘custody of a police officer’, he or
she must give information leading to the discovery of a fact and so
much of that information, whether it amounts to a confession or
not, that relates distinctly to the fact discovered, may be proved
against him. In effect, both aspects, viz, being in ‘the custody of a
police officer’ and being ‘accused of an offence’, are
indispensable pre-requisites to render a confession made to the
police admissible to a limited extent, by bringing into play the
exception postulated under Section 27 of the Evidence Act.
23. In this regard, reference may be made to Bodhraj alias Bodha
and others vs. State of Jammu & Kashmir 7, wherein this Court
had observed that the requirement of ‘police custody’ is productive
of extremely anomalous results and may lead to the exclusion of
valuable evidence in cases where a person, after committing a
crime meets a police officer and states the circumstances of the
crime which lead to the discovery of the dead body, weapon or any
other material fact, in consequence of the information thus received
from him, and he is subsequently taken into custody and
becomes an’accused’. This Court pointed out that this
information, which would otherwise be admissible, becomes
inadmissible under Section 26 of the Evidence Act as it did not
come from a person in the ‘custody of a police officer’ or rather,
came from a person not in the ‘custody of a police officer’. In other
words, the exact information given by the accused ‘while in
custody’, which led to recovery of the articles can be proved. It
was noted that this doctrine is founded on the principle that if any
fact is discovered as a search was 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.
24. Thereafter, in State of Karnataka vs. David Rozario and another
8, this Court held that information which is otherwise admissible
under Section 27 of the Evidence Act would become inadmissible,
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or came from a person ‘not in the custody of a police officer’. It
was further held that what is admissible is the information and
not the opinion formed on it by the police officer and, in other
words, the exact information given by the accused while in
‘custody’ which led to recovery of the articles has to be proved.
The two essential requirements, per this Court, are that: (i) the
person giving the information must be ‘accused of an offence’; and
(ii) he must be in ‘police custody’.
26. More recently, in Boby vs. State of Kerala10, this Court
referred to the decision of the Privy Council in Pulukuri Kotayya
vs. King Emperor 11, wherein Section 27 of the Evidence Act had
been considered at length and it was noted that Section 27 provides
an exception to the prohibition imposed by the preceding
provisions and enables certain statements made by an ‘accused’ in
‘police custody’ to be proved. It was observed that the condition
necessary to bring Section 27 into operation is that the discovery of
a fact in consequence of information received from a person
‘accused of any offence’ in the ‘custody of a police officer’ must be
deposed to, and thereupon so much of the information, as relates
distinctly to the fact thereby discovered, may be proved. It was
observed that normally, Section 27 is brought into operation when
a person in ‘police custody’ produces from some place of
concealment some object, such as a dead body, a weapon or
ornaments, said to be connected with the crime, of which the
informant is accused. However, the Privy Council concluded that
the exception to Section 26 added by Section 27 should not be held
to nullify the substance of the provision and it would be fallacious
to treat the ‘fact discovered’ as equivalent to the object
produced; the ‘fact discovered’ embraces the place from which
the object is produced and the knowledge of the accused as to
this, and the information given must relate distinctly to this fact.
By way of example, it was elucidated that information supplied by
a Criminal Appeal No. 1439 of 2009, decided on 12.01.2023. AIR
1947 Privy Council 67 person in custody that “I will produce a
knife concealed in the roof of my house” does not lead to the
discovery of a knife; as knives were discovered many years ago,
but if it leads to the discovery of the fact that a knife is concealed
in the house of the informant to his knowledge and if the knife is
proved to have been used in the commission of the offence, the fact
discovered is very relevant. Noting this principle, this Court
observed that Section 27 of the Evidence Act requires that the ‘fact
discovered’ embraces the place from which the object is produced
and the knowledge of the ‘accused’ as to this and the information
given must relate distinctly to the said fact.
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28. That apart, the manner in which the Investigating Officer
(PW-16) went about drawing up the proceedings forms an
important issue in itself and it is equally debilitative to the
prosecution’s case.
In Yakub Abdul Razak Memon vs. State of Maharashtra through
CBI, Bombay 12, this Court noted that the primary intention
behind the ‘panchnama’ is to guard against possible tricks and
unfair dealings on the part of the officers entrusted with the
execution of the search and also to ensure that anything
incriminating which may be said to have been found in the
premises searched was really found there and was not
introduced or planted by the officers of the search party. It was
further noted that the legislative intent was to control and check
these malpractices of the officers, by making the presence of
independent and respectable persons compulsory for search of a
place and seizure of an article. It was pointed out that a
panchnama can be used as corroborative evidence in the Court
when (2013) 13 SCC 1 the respectable person who is a witness
thereto gives evidence in the Court of law under Section 157 of
the Evidence Act. This Court noted that Section 100(4) to Section
100(8) Cr.P.C. stipulate the procedure with regard to search in
the presence of two or more respectable and independent
persons, preferably from the same locality, so as to build
confidence and a feeling of safety and security amongst the public.
The following mandatory conditions were culled out from
Section 100 Cr.P.C. for the purposes of a valid panchnama:
(a) All the necessary steps for personal search of officer (Inspecting
officer) and panch witnesses should be taken to create confidence
in the mind of court as nothing is implanted and true search has
been made and things seized were found real.
(b) Search proceedings should be recorded by the I.O. or some
other person under the supervision of the panch witnesses.
(c) All the proceedings of the search should be recorded very
clearly stating the identity of the place to be searched, all the
spaces which are searched and descriptions of all the articles
seized, and also, if any sample has been drawn for analysis
purpose that should also be stated clearly in the Panchanama.
(d) The I.O. can take the assistance of his subordinates for search
of places. If any superior officers are present, they should also
sign the Panchanama after the signature of the main I.O.
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(e) Place, Name of the police station, Officer rank (I.O.), full
particulars of panch witnesses and the time of commencing and
ending must be mentioned in the Panchnama.
(f) The panchnama should be attested by the panch witnesses as
well as by the concerned IO.
(g) Any overwriting, corrections, and errors in the Panchnama
should be attested by the witnesses.
(h) If a search is conducted without warrant of court Under
Section 165 of the Code, the I.O. must record reasons and a
search memo should be issued.
It was held that a panchnama would be inadmissible in a Court of
law if it is recorded by the Investigating Officer in a manner
violative of Section 162 Cr.P.C. as the procedure requires the
Investigating Officer to record the search proceedings as if they
were written by the panch witnesses themselves and it should
not be recorded in the form of examining witnesses, as laid
down in Section 161 Cr.P.C. This Court concluded, by stating that
the entire panchnama would not be liable to be discarded in the
event of deviation from the procedure and if the deviation
occurred due to a practical impossibility, then the same should
be recorded by the Investigating Officer so as to enable him to
answer during the time of his examination as a witness in the Court
of law.
30. In Khet Singh vs. Union of India 14, this Court held that even if
there is a procedural illegality in conducting the search and
seizure, the evidence collected thereby would not become
inadmissible and the Court would consider all the circumstances
to find out whether any serious prejudice has been caused to the
accused. However, this Court pointed out that if the search and
seizure were in complete defiance of the law and procedure and
there was any possibility of the evidence collected having been
tampered with or interpolated during the course of such search and
seizure, then that evidence could not be admitted. Though these
observations were made in the context of a search and seizure
under the Narcotic Drugs and Psychotropic Substances Act, 1985,
they would have relevance generally.
46. Ld. Counsel for accused no. 2 Sandeep has submitted that the
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disclosure statement of this accused is Ex.PW35/E dated 23.09.2013. It is
submitted that the conduct of IO does not appear to be conduct in
ordinary course as the disclosure statement was recorded at 4 PM and in
place of going for recovery of body of deceased the IO went in search of
arrest of accused no. 3 Mukesh and after that went in search of accused
no. 4 Sandeep. The disclosure statement of accused no. 3 Mukesh is
Ex.PW35/G. PW-35 HC H. Rahman in examination-in-chief dated
15.09.2016 at page 2 has deposed that accused no. 2 Sandeep was
arrested vide memo Ex.PW35/C and IO with accused no. 2 Sandeep and
accused no. 3 Mukesh went to the shop of M/s. Sunny Medicos at Harit
Vihar, Pepsi road to arrest accused no. 4 Sandeep. The accused no. 4 was
interrogated and arrested vide memo Ex.PW3/C at the spot. Whereas the
arrest memo Ex.PW3/C is mere a sham document at page no. 1569 of the
case file which records the place of arrest as office of Operation
Cell/North Maurice Nagar, Delhi.
46.1 Hence it is held that the disclosure was made at a different
place which is at the spot and the arrest was made at different place at
Operation Cell. The disclosure was made before arrest and therefore
Section 27 of Evidence Act, 1872 has not become operational in case of
accused no. 4 and his disclosure has no value in the eyes of law. Hence
the above evidence shows that the disclosure of accused no. 4 was made
prior to his arrest and in absence of proper panchnama there is no valid
legal discovery against accused no. 4 from the record in view of citation
titled Rajesh and Anr. Vs. State of M.P. (2023) 15 SCR 1 (2023) INSC
839 (Coram 3) (supra).
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47. PW-3 Sh. Kishan Lal at page no. 1 of his examination-in-chief
dated 11.12.2014 has deposed that on 23.09.2013 he went to office of
Operation Cell and accused no. 2 Sandeep and accused no. 3 Mukesh
were already in police custody. Thereafter accused no. 2 Sandeep and
accused no. 3 Mukesh had joined police investigation. It is submitted that
accused no. 2 and accused no. 3 were already in police custody before
joining of PW-3 Kishan Lal in investigation. PW-46 in cross-examination
dated 08.11.2021 at page 3 has deposed that accused no. 2 has led to
accused no. 3 and accused no. 2 and 3 jointly led to accused no. 4.
48. PW-35 in cross-examination dated 23.07.2019 at page no.
1049 of case file which is page no. 1 of cross-examination has deposed as
correct that they had returned to police station at around 1 AM on
24.09.2013 and till that time only accused no. 1 Gautam, accused no. 2
Sandeep and accused no. 3 Mukesh were arrested. Hence as per
deposition of PW-35 accused no. 4 Sandeep was not arrested till that
time. However contrary to this arrest memo of accused Sandeep
Ex.PW3/C at page no. 1659 of case file shows that accused no. 4
Sandeep was arrested on 23.09.2013 at 5:40 PM and therefore the arrest
of accused no. 4 is shown ante dated by the investigating agency which
shows that the documents were not correctly prepared in date and time
and the investigation was conducted with bias against the accused.
PW-37 SI Rajesh Kumar in cross-examination dated 06.07.2017 at page 2
in the last para has deposed as correct that vide DD No. 2A dated
24.09.2013 their arrival at PS was recorded at 1 AM which was recorded
by PW-48 Insp. Paramjeet Singh and it also mentions name of SI Rajesh
Kumar. It is deposed by PW-37 that he does not remember how many
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accused persons were with them. It is deposed again that probably at that
time 04 accused person were with them. He cannot tell if accused no. 4
was arrested by Insp. Paramjeet Singh at that time or not. It is admitted as
correct that arrest memo Ex.PW3/C and personal search memo
Ex.PW35/H of accused no. 4 and accused no. 3 arrest memo Ex.PW3/B
and personal search memo Ex.PW35/F does not bear signature of PW-37
and neither he is cited as witness in the said memo. It is submitted that
pointing out memo of accused no. 4 does not bear his signature as on the
face of it the signature at point X in Ex.PW18/E are a rough scribble and
does not appear to be signature of accused no. 4 Sandeep in any respect.
48.1 It is held that the above discrepancy in the evidence of
prosecution has remained unexplained that when by 1 AM on 24.09.2013
only accused no. 1, 2 and 3 were arrested then how the arrest memo of
accused no. 4 could be prepared on 23.09.2013 at 5:40 PM. This creates
doubt about the manner place and time of arrest of accused no. 4. This
also creates doubt if any disclosure statement at all was made by accused
no. 4 before investigating agency.
49. It has come in evidence of PW-35 at page no. 1029 of case file
which is page no. 2 of his examination-in-chief dated 15.09.2016 that
accused no. 2 had led to accused no. 3. PW-3 was present at the time of
arrest of accused no. 3. The accused no. 2 and accused no. 3 have
allegedly led to accused no. 4 whereas PW-48 at first page of his
examination-in-chief dated 19.10.2022 (page no. 1327 of case file) has
deposed that first accused no. 1 and accused no. 2 were arrested after that
accused no. 3 was arrested. Accused no. 4 was arrested near Nala at the
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instance of accused no. 2 and 3 whereas to the contrary PW-35 at page 2
of his examination-in-chief dated 15.09.2016 (page no. 1029 of case file)
has deposed that accused no. 4 was arrested at Sunny Medicos situated at
Harit Vihar, Pepsi road and it is claimed that on the disclosure
Ex.PW35/G of accused no. 3, accused no. 4 was arrested. Hence it is
doubtful whether accused no. 4 was arrested at the instance of accused
no. 2 and 3 keeping in view of the fact that the arrest memo of accused
no. 4 Ex.PW3/C show his place of arrest at office of Operation Cell,
North Maurice Nagar. It is also doubtful that accused no. 4 was arrested
at Nala near transformer. At page no. 1657 of the document file the arrest
memo of accused no. 3 Ex.PW3/B where the place of arrest is shown at
Operation Cell, Maurice Nagar, Delhi. PW-48 at page no. 2 of his
examination-in-chief dated 19.10.2022 (page no. 1329 of case file) has
deposed that after arrest of all the accused they went to Operation Cell at
Maurice Nagar whereas PW-35 (at page no. 1029 of case file) has
deposed that PW-3 was arrested at the spot which is gali no. 16, Bengali
Colony, Burari, Delhi vide memo Ex.PW3/B where the complainant
PW-3 was also present. It is submitted that as per deposition of PW-3
dated 23.09.2013 the accused no. 2 and 3 disclosure and arrest was made
at Operation Cell, Maurice Nagar. Accused no. 3 and 4 were arrested at
the Operation Cell. Ld. Counsel for accused no. 3 has referred to pointing
out memo by accused no. 3 of Sunny Medicos vide Ex.PW25/A at page
1699 of case file. The witness to this memo is PW-25. PW-25 in his
deposition (at page no. 935 of case file) has deposed that disclosure
statement of accused no. 3 was recorded by IO in his presence on
27.09.2013 at Sunny Medicos/chemist shop and PW-25 has signed it.
Whereas in Ex.PW48/G (at page no. 1682 of case file) PW-35 Ct.
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Sandeep Kumar is not witness to Ex.PW48/G but it is HC Pawan. PW-25
has deposed in his examination-in-chief that he alongwith PW-48/IO and
accused no. 3 went to Sunny Medical store and he does not state that they
went with HC Pawan/PW-39. The identification memo of accused no. 3
Ex.PW25/A bears signature of PW-25 and not of HC Pawan who was
present at the time of recording of disclosure by accused no. 3
Ex.PW48/G. Whereas PW-39 at page no. 1171 of case file in his
examination-in-chief dated 05.09.2017 it is deposed that he/ASI Pawan
Kumar had signed the pointing out memo prepared by the IO but the
pointing out memo Ex.PW25/A does not bear his signature. It is noted
that the IO was required to show the arrest of accused where they were
arrested and also there is discrepancy in deposition of PW-25 and in
deposition of PW-39 that PW-39 had signed pointing out memo of Sunny
Medical Store whereas he had not signed it but it was signed by PW-25.
49.1 The above evidence shows that place of arrest of accused no.
4 was claimed near Nala by PW-48 whereas PW-35 has deposed that he
was arrested near Sunny Medicos. Other than this when the disclosure
statement was made at Operation Cell, Maurice Nagar where senior
Inspector Naresh was appointed to oversee the operation then as per law
laid down in citation titled Rajesh and Anr. Vs. State of M.P. (2023) 15
SCR 1 (2023) INSC 839 (Coram 3) at relevant para no. 28 (supra) that
such disclosure statement must also bear the signature of Insp. Naresh
Kumar which is found absent in Ex.PW35/B of accused no. 1,
Ex.PW35/E of accused no. 2, in Ex.PW48/F of accused no. 2, in
Ex.PW20/B of accused no. 2, in Ex.PW35/G of accused no. 3, in
Ex.PW48/G of accused no. 3, in Ex.PW35/J of accused no. 4 Ex.PW18/C
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of accused no. 4 and Ex.PW20/A of accused no. 4. Hence the above
circumstance makes the arrest and recovery from the above accused
doubtful.
1. RECOVERY OF DEAD BODY
50. PW-1 Sh. Abdul Sattar who is Diver by profession had
deposed that he had reached at the spot when called by Insp. Naresh
Kumar in the year 2013 and in cross-examination dated 26.09.2015 at
page 1 it is deposed that the relatives of deceased had come to the spot
after one hour when he had taken out the dead body from the drain. This
fact creates doubt about recovery of dead body at the instance of accused
when PW-1 has deposed that they went with police and accused were
with the police when body was recovered. No writing work was done
with him at the spot. PW-3 in cross-examination dated 23.02.2015 at
page 3 has deposed that he was taken by the police to the Nala and his
Sala/brother-in-law was with him. He stayed at Nala for about 15-20
mins and statement of any witness was not recorded at the spot in his
presence. PW-3 has deposed that he is illiterate.
50.1 It is submitted by ld. Counsel for accused no. 2 that before
arrest of accused no. 2 the dead body was already recovered by the police
and no recovery was effected at the instance of accused.
51. The site plan is Ex. PW48/A and it was not prepared at the
instance of any person. It is deposed by PW-11 Sh. Jasvinder Singh who
is brother-in-law of PW-3 and the deceased was his maternal nephew that
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police did not obtain his signature on site plan or any other paper. It is
deposed that he has his own vehicle and his brother-in-law has its own
vehicle. They had not gone to Nanglipuna drain in the vehicle of police.
His photograph was not taken by crime team photographer showing his
presence at the spot. PW-34 Ct. Rajesh Tanwar at page no. 4 of cross-
examination and page no. 1019 of case file has deposed that the dead
body was visible as it was near the bank which means that the dead body
was visible from a distance. PW-35 in cross-examination dated
23.07.2019 at page 3 has deposed that public person had gathered at Nala
and IO had recorded statement of 1-2 public person. It is argued that this
shows that the body was not recovered at the instance of accused and it is
not recovered as claimed by the prosecution.
52. It is deposed by PW-35 in cross-examination dated
23.07.2019 at page 3 that he was beat officer on 23.09.2013 in the same
beat area where shop of accused no. 2 Sandeep is situated in the name of
Kailash Medicos. He is not aware whether any PCR information was
received vide DD No. 88B/Ex.PW35/DX at 10:14 PM that a dead body
of a girl was found opposite Kailash Medicos. It is admitted as correct by
PW-35 that because he knew accused no. 2 therefore he called him and
handed over his custody to PW-48. Hence the dead body was recovered
on 23.09.2013. It is further argued that dead body was lying in open drain
and it cannot be said that it was exclusively within reach of accused. The
site plan is Ex.PW48/A at page 1577 of case file.
53. It is further argued on behalf of accused no. 2 that even before
recovery of dead body the police as per deposition of PW-3 dated
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11.12.2014 went in search of accused person on the basis of identification
of voice of accused no. 2 Sandeep. The voice was allegedly identified by
PW-3 in the office of DCP. It is argued that police had no evidence to
arrest the accused and its conduct should be to search first for the dead
body. However the said identification of voice of accused no.2 is not
recorded under Section 161 Cr. P.C. of PW-3 which is Mark PW3/D and
the same is confronted to PW-3 at page no. 3 of cross-examination dated
22.05.2015. In the next line it is deposed that accused no. 2 Sandeep and
accused no. 3 Mukesh were in custody of police at PS Burari on
23.09.2013. At the instance of accused no.2 Sandeep, accused no. 3
Mukesh was apprehended which is recorded in page no. 737 of case file.
Hence accused no. 2 was already in police custody on 23.09.2013.
54. PW-3 in cross-examination dated 23.02.2015 at page 3 has
deposed contrary to deposition of PW-11. It is deposed that PW-3 was
taken by police to Nala and PW-11 Sh. Jasvinder Singh his brother-in-law
was with him. It is deposed at page no. 5 that the dead body of his son
could be identified by clothes only as the face was not clearly visible to
be identified as the body was decomposed and eyes were protruded out
and the tongue was outside the mouth. It is argued on behalf of accused
no. 2 that the body was 4 feet 5 inch as per deposition of PW-3 at page 5
of cross-examination dated 23.02.2015 whereas in complaint Ex.PW3/B
the height of deceased was disclosed as 4 feet 2 inch. Hence it is
submitted that the body recovered by the police was not of master Jatin
Dhingra. PW-3 has deposed that he had told during investigation that his
son was wearing ‘Kara’ on the wrist. However it is admitted further in
evidence that he did not mention this fact in any of his statement.
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55. PW-35 in cross-examination dated 23.07.2019 at page no.
1049 of case file at para no. 2 has deposed that if it comes to knowledge
of police that a body is lying in a certain place then they first go to see
the dead body. PW-46 at page no. 1281 of case file and page 2 of cross-
examination dated 25.03.2022 has deposed yes to the question that even
after getting information/disclosure statement of accused person about
dead body the team did not go to recover the dead body from Ganda Nala
and went to arrest the accused person. It is argued on behalf of accused
no. 2 that the conduct of investigating agency is doubtful in that without
recovering the dead body they first went to search the accused person to
falsely extract disclosure from them regarding the information which is
already available with them i.e. where the dead body is lying. Hence the
disclosure of accused person regarding the dead body has no value in the
eyes of law and therefore the evidence of recovery of incriminating
articles and document prepared thereafter are doubtful.
56. It is argued on behalf of the accused no. 2 that the passerby
had told about the dead body and this argument is supported by
deposition of prosecution witness PW-35. In cross-examination dated
23.07.2019 at page 3 that vide DD No. 88B/Mark PW35/DX a PCR
information was received at 10:14 PM about dead body of a girl was
found opposite Kailash Medicos and this was put to PW-35 about which
he is not aware though he was beat officer in the area on 23.09.2013.
However he had called accused no. 2 on such date on 23.09.2013 and
handed over his custody to IO Insp. Paramjeet Singh/PW-48. It is further
admitted by PW-35 at page 5 (page no. 1057 of case file) that no public
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person and witness were part of investigation on 23.09.2013 and no clues
were available with them from 21.09.2013 to 23.09.2013 till 9 AM. It is
further deposed that they had no information on 21.09.2013 and
22.09.2013 about Manoj Kumar. He has improved in his deposition
which has come in cross-examination dated 23.08.2019 at page 2 in
having told IO that Manoj Kumar had given training form and voter ID
card alongwith photograph to accused no.1 whereas he was confronted
with his statement Ex.PW35/D1 where it is not recorded.
57. PW-3 in cross-examination dated 23.02.2015 at page no. 719
of case file has deposed that he went with his brother-in-law to the Nala
and they were taken there by the police. PW-35 at page 2 of his cross-
examination dated 23.07.2019 (page no. 1051 of case file) has deposed
that he had not seen the complainant coming in any vehicle at the Nala.
However he had seen the complainant and his brother-in-law at Nala. It is
argued that as per deposition of PW-3 he stayed at Nala for about 15-20
minutes and he did not remain at the spot and did not wait for completion
of proceedings and had left earlier from the spot.
58. PW-35 (at page no. 1073 of case file) has deposed in last line
that dead body was identified on the basis of clothes and slippers on
23.09.2013. The slippers (at page no. 1741 of case file) were recovered
vide Ex.PW3/H on 25.09.2013. The dead body pointing out memo by
PW-3 is Ex.PW3/G dated 23.09.2013 at page no. 1691 of case file. At
page no. 1895 of case file the dead body was identified by PW-3 the
father of child vide Ex.PW3/D dated 24.09.2013. PW-35 at page no. 1075
of case file has deposed the dead body was highly decomposed and
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admitted as correct that the dead body was not identifiable. PW-46 at
page no. 1291 of case file has deposed that the dead body was not highly
decomposed and it can be identified by face. PW-34 at page no. 1013 of
case file in his examination-in-chief dated 15.09.2016 has deposed at first
page that PW-3 the father of child had identified the dead body of his son
when the face of dead body was washed with the water of the drain.
According to PW-34 the dead body was identified at the spot only.
PW-34 at page no. 1021 of case file in his cross-examination has again
deposed as correct that the dead body was highly decomposed. PW-3 has
deposed that body was identified by clothes only as it was highly
decomposed and it is further deposed at page no. 711 of case file that in
examination-in-chief dated 11.12.2014 that he identified the body at
Subzi Mandi mortuary vide ExPW3/D. It is not stated in the complaint by
the complainant that the victim Master Jatin Dhingra was wearing heavy
Kara. PW-6 the mother at page no. 777 of case file had refused to identify
the body of her son at the first instance but when the body was washed
then she had identified it by the T-shirt of her son. In examination-in-
chief at first page PW-6 has deposed that her son was wearing school
pant of brown colour in which name of school was written near the
pocket and the blue T-shirt having drawing of teddy bear on front side
and the T-shirt was having black colour at back side. PW-11 in his cross-
examination dated 04.09.2015 at page no. 821 of case file has deposed
that the identification memo of body Ex.PW11/A was prepared at PS
Burari and PW-3 has also signed the identification memo of body
Ex.PW3/D at PS Burari. It is submitted that this identification by the said
memo is done on 24.09.2013.
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59. At page no. 823 of case file in cross-examination dated
04.09.2015 PW-11 has deposed that his statement was not recorded by
police on 21.09.2013, 22.09.2013 and 23.09.2013 but it was recorded on
24.09.2013 at police station. It is deposed that PW-11 had his own
vehicle and his brother-in-law PW-3 had his own vehicle. They did not
go to Nanglipuna drain in vehicle of police. Whereas PW-3 at page no.
719 of case file in his cross-examination dated 23.02.2015 had deposed
that he was taken by the police to Nala and his brother-in-law PW-11 was
with him. To the contrary PW-11 has deposed in examination-in-chief at
first page that he alongwith police team and accused person went to
Nanglipuna drain in police vehicle. It is submitted on behalf of accused
no. 3 that PW-13 could not identify any of the accused except accused
no. 4 who has a tea stall near Sunny Medicos. PW-17 at first page of his
examination-in-chief has deposed that he had visited at Nanglipuna drain
on 23.09.2013 and IO had recorded his statement on 30.09.2013. He does
not remember the place at which his statement was recorded. He had
taken 18 photographs of the spot. PW-24 in his cross-examination dated
25.02.2016 at page no. 933 of case file has deposed that some police
officials in uniform were present and he had not named any independent
witness or the complainant or the accused if they were present at the spot.
He was posted as incharge crime team. PW-26 has deposed that no
chance print was taken at the spot.
60. It is deposed by PW-35 in cross-examination dated
23.08.2019 at page no. 1073 of case file that they had went in Govt.
gypsy and PW-3/father of deceased was sitting with them in the same
vehicle. He said again that PW-3 did not accompany them to the drain
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and the PW-3 and PW-11 came together.
61. PW-48 in cross-examination dated 18.03.2023 at page 1 has
deposed that Section 302 IPC was added in the case on 23.09.2013.
However no DD entry was made in this regard. Ex.PW35/B/disclosure
statement was shown and it is admitted as correct that name of accused
no. 4 Sandeep was not mentioned in the disclosure statement. It is
deposed that accused no. 3 Mukesh was arrested and they had went to
Ganda Nala for recovery of dead body. It is further deposed that accused
no. 4 Sandeep was arrested prior to visit to Ganda Nala.
61.1 PW-3 at page no. 79 of case file has deposed that he had not
informed about any diver nor he know about any diver. The joint pointing
out memo by accused Mukesh and accused no. 2 Sandeep of the dead
body in the Nala is Ex.PW3/G which does not bear signature of accused
no. 2 Sandeep. It is argued that this pointing out memo is not admissible
in evidence for the reason that joint pointing memo cannot be prepared
and further that specific words of the accused are not recorded. It bear
signature of only accused no. 3. PW-11 Jasvinder Singh brother-in-law of
PW-3 is witness to this recovery as per deposition at page 1. However he
has not signed the pointing out memo Ex.PW3/G. During his cross-
examination at page 3 it is deposed by PW-11 that police had not got his
signatures on any site plan or any other paper and his statement was
recorded by police on 24.09.2013 in the PS. It is deposed that he had
went in his own vehicle and his brother-in-law/PW-3 has also gone
separately in his own vehicle at Nanglipuna drain. They did not go in
vehicle of police. His photograph was not taken by crime team
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photographer to show his presence at the spot. PW-34 Ct. Rajesh Tanwar
has deposed that he went to Nanglipuna Nala in Gypsy and witnessed the
pointing out whereas he is not witness to the pointing out memo
Ex.PW3/G. PW-34 has deposed that accused no. 2 and 3 had jointly
pointed out towards the drain where the dead body was recovered. In
cross-examination it is further deposed that the dead body was visible
from outside and it was near the bank. At page 5 of cross-examination it
is deposed that they had reached the spot at the end of daylight. The
pointing out memo is dated 21.09.2013. The time of sunset on
21.09.2013 was about 7 hours 3 minutes which means that PW-34 with
investigating agency must have reached Ganda Nala before that time. No
photograph of PW-34 and of accused person was taken by the crime team
photographer. PW-34 does not remember if he had helped in fishing out
the dead body. PW-39 at page no. 1181 of case file has deposed that he
cannot say whether the crime team stayed at the spot between 8:10 PM to
8:15 PM. It is deposed that the dead body was taken out from the drain
after arrival of crime team. He does not remember that how many
persons were in a crime team. He cannot say who is appearing in
photograph Ex.PW17/A10 to Ex.PW17/A12. It is deposed that he is not
appearing in photograph Ex.PW17/A1 to Ex.PW17/A18. He does not
remember if he had assisted in any manner in taking out the body from
drain. He does not remember the date and time of preparation of site plan
though it is deposed that it was prepared in his presence. He cannot tell at
whose instance the site plan was prepared. It is argued that the presence
of PW-39 at the spot is doubtful.
62. PW-35 in his cross-examination dated 23.07.2019 at page no.
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1051 of case file had deposed that SI Rajesh had prepared the site plan at
Nala. Whereas PW-37 in his cross-examination dated 15.04.2017 at page
no. 1103 of case file has deposed that he did not prepare any site plan at
Nanglipuna drain. PW-35 at page no. 1053 of case file has deposed that
public person were present at the spot on Nanglipuna drain whereas
PW-37 at page no. 1103 of case file has deposed that he does not
remember whether any public person were gathered or not at the spot.
PW-39 at page no. 1183 of case file in his cross-examination dated
13.12.2017 has deposed that public person were not present at the spot.
PW-46 at page no. 1281 of cross-examination dated 25.03.2022 has
deposed that he did not notice that any public person had gathered at the
spot at Nanglipuna drain.
63. PW-48 in cross-examination dated 01.06.2024(after lunch) at
page 2 has deposed that he cannot identify person shown in photograph
Ex.A10, Ex.A11 and Ex.A12. His photographs are not there in
Ex.PW17/A1 to Ex.PW17A18. It is admitted as correct that there is no
photograph of accused person or photographs of relatives of the deceased
in the above photograph exhibits. PW-48 does not remember if he had
recorded statement of person shown in Ex.A10, Ex.A11 and Ex.A12. It is
argued by ld. Counsel for accused no. 2 that the IO was from PS Burari
and when he cannot identify the person in photographs which shows that
no person from PS Burari was present at the spot. Ld. Counsel for
accused no. 2 has relied on citation titled Manish Sharma @ Pappan Vs.
State of NCT of Delhi AIR Online (2018) Delhi 145 at relevant para no.
65 to 69 wherein it is held that when presence of accused is not shown in
the entire video and the PW-4 who had witnessed the recovery of the
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skeletal remains is not shown in the video then the presence of PW-4 in
that case and of the accused was held not been proved. PW-3 in the
present case has deposed that he alongwith police and accused no. 2 and
3 went to Nanglipuna drain and both the accused have pointed out the
place where the dead body was thrown. However had accused no. 4 was
arrested then PW-3 must have deposed about it which is absent in the
present case and therefore accused no. 4 was not arrested at that time.
The photographs of police person from PS Burari and of accused person
are absent in the photograph taken Ex.PW17/A1 to Ex.PW17/A18. The
relevant para is reproduced hereasunder:
Recovery of the skeletal remains
65. The recovery of the skeleton and the half-burnt remains of
the deceased from the BSES sub-station is again shrouded in
mystery. In the first place, it must be understood that although the
case of the prosecution is that it was the accused who made
disclosure statements and offered to get the dead body recovered
after their arrest and therefore, were present at the time of the
recovery of the skeletal remains of the deceased, the evidence on
record depicts a very different picture.
66. In the first place it requires to be noticed that the entire
recovery of skeleton remains was video graphed. The videographer
was Ct. Sube Singh (PW-20). In his cross-examination, PW-20
stated that he reached at the spot at about 6.45 am and that about 8-
10 police officials were present at the spot. The other police
witness speaks about this process. Ct. Narender (PW-15) who was
also present at the spot stated that the videography was taken.
Although in his examination-in-chief, he stated that on the
pointing out of both the accused, the body of the deceased was
recovered from the BSES sub-station, in his cross-examination, he
clearly states “only police staff was present at the spot. I do not
remember whether anyone from the family of the deceased was
present at the spot.”
67. This Court has viewed the entire video recording by playing
the CD (Ex.PW-20/A) in the Court in the presence of counsel. The
presence of the accused is not shown in the entire video. For that
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matter the presence of PW- 4 who is supposed to have witnessed
the recovery of the skeletal remains is not shown in the video.
Further, although the police appeared to have reached the place in
the earlier hours of 1st January 2011 to effect the above recovery,
the video does not contain the electronic date or time stamp. The
video appears to have been shot during daylight. This comes across
in the evidence of PW-23 who states that “the skeleton had been
dug by 9 am.” Indeed it appears that it took about 1 – ½ hours in
digging the skeletal remains of the body from the trench.
68. The story of the prosecution about PW-4 being present at the
time of recovery of the body in the presence of the accused has not
been proved. PW-4 does not say that in his presence the accused
pointed out the place where the skeletal remains were buried.
PW-4 is the one who supposedly identified the dead body of the
deceased. He states that when he went to Karawal Nagar the dead
body was already taken out and he identified it to be that of the
deceased.
69. The Court while viewing the video did not find PW4 present in
any frame identifying the dead body of the accused. On the other
hand as soon as the skeletal remains were lifted from under the
cables, they were placed in the body bag and zipped up. The
skeletal remains are totally covered by mud and grime. With the
head of the body severed and only the skull remaining with no
trace of any face, it would have been next to impossible to identify
the skeletal remains as that of the deceased. The video also does
not show that any keys or torn cloth were present with the skeletal
remains.
64. It is submitted by ld. Counsel for accused that the joint
recovery on behalf of accused no. 2 and 3 is not admissible in evidence
as the same is not as per law in reference to Section 27 of Evidence Act,
1872 and for the said purpose ld. Counsel has relied on citation titled
Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018)
Delhi 145 at relevant para no. 71 to 73 wherein it was held that joint
recovery is inadmissible. It was laid down that under Section 27 of Indian
Evidence Act, 1872 when more than one accused was present then it was
incumbent to record the exact words used by them to connect them to
recovery and the information given. This is absent in the present case.
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The relevant para is reproduced hereasunder:
JOINT RECOVERY INADMISSIBLE
71. It was important for the prosecution, for the purpose of Section
27 of the Indian Evidence Act (IEA), to show that it was the
accused who pointed out the place where the dead body was
buried. As explained by the Supreme Court in Mohd. Abdul
Hafeez v. State of Andhra Pradesh AIR 1983 SC 367 it was
obligatory on the IO for the purpose of Section 27 of IEA, when
more than one accused were present, to indicate “what words
were used by him so that a recovery pursuant to the information
received may be connected to the person giving the information
so as to provide the incriminating evidence against that person.”
72. Here the prosecution has tried to show that an identical
disclosure was made by each of the three accused and pursuant
thereto the recovery was effected. It virtually amounts to a joint
recovery which in the present circumstances is not very
convincing.
73. Had there been no video of the recovery, it may have been
possible to argue that the oral testimonies of the police witnesses
were sufficient to prove the recoveries. However, having placed
the video on record and with it not showing even the presence of
the accused, the evidence of disclosures made by the accused
leading to the recovery of the skeletal remains of the deceased
cannot be said to have been convincingly proved by the
prosecution.
65. It is argued on behalf of accused no. 2 that the disclosure of
accused no. 2 and 3 are identical. It is submitted that it is a fabricated
disclosure and cannot be relied upon.
65.1 It is noted that the disclosure statement of accused no. 2
Ex.PW35/E, Ex.PW20/B, Ex.PW48/F and disclosure statement of
accused no. 3 is Ex.PW35/G, Ex.PW48/G are not seen identical to each
other. However the disclosure statement in itself is a weak type of
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evidence and the relevant evidence can be admissible only under Section
27 of Indian Evidence Act, 1872. The joint pointing out memo does not
bring any incriminating circumstance against accused no. 2 and 3 as
discussed above. The prosecution has failed to prove the presence of
accused no. 4 at the time of recovery of dead body of the victim and there
is contradictory evidence many times in respect of arrest of accused no. 4
which is discussed in this judgment. Further, the body of the victim was
admittedly floating above on the drain and it was visible from outside. If
the victim had expired on 21.09.2013 then in the floating drain the body
atleast would have floated at some distance and it would not be
necessarily be available at the place where the accused would have
allegedly thrown it. In absence of proper panchnama the disclosure as to
throwing of body and the pointing out memo by the accused person has
itself become more doubtful. The body was publicly visible in the open
drain. Hence the recovery of body cannot be fastened at the instance of
accused person. In case titled Roop Sena Khatoon Vs. State of West
Bengal (2011) 13 SCC 303 the Hon’ble Supreme Court of India has laid
down at para no. 4 that it is common knowledge that the body could not
remained under water for 24 hrs. which was found floating and in that
case it could be seen by anybody and therefore such circumstance looses
its significance. The relevant para is reproduced hereasunder:
4. Insofar as the first circumstance relating to the disclosure of the
accused having committed the murder and pointing out the corpus
delicti is concerned, both the courts below have held that
circumstance as a proof against the accused on the basis of the
evidence of the witnesses. It is a common knowledge that the body
could not have remained under the water for 24 hours. The body
was bound to be floating. At least from the post-mortem report, it
is clear that the body was decomposed. Under such circumstances,
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the water level for 24 hours. It was certainly expected to be
floating. In that case, it could be seen by anybody. Therefore, such
circumstance loses its significance.
66. The ld. Counsel for the accused no. 4 Sandeep has referred to
Ex.PW35/J which is disclosure statement of accused no. 4 at page no.
1683 of case file. It is submitted that the signature of accused no. 4
Sandeep at point X in disclosure dated 23.05.2013, another disclosure
dated 26.05.2013 Ex.PW18/C of accused no. 4 Sandeep at point X,
another disclosure Ex.PW20/A dated 30.09.2013 of accused no. 4 whose
signatures bears at point X. The pointing out memo of chemist shop M/s.
Sunny Medicos is Ex.PW18/E bears signature of accused at point X at
page 1679 of case file. The seizure memo of plastic bowl and strip of
medicine is Ex.PW18/B at page no. 1793 of case file bearing signature of
accused no. 4, seizure of mobile SIM cover at page 1795 in Ex.PW23/H
which bears signature of accused no. 4 and by such pointing out at above
signature of accused no. 4 it is submitted that the above signature are
different even among each other and one signature are not similar to the
other and there fore it is submitted that the said memo are not correctly
prepared as signature were not taken of the accused. It is noted that
though on the face of it the above signature appears to have
dissimilarities with each other. However without proper handwriting
expert opinion it cannot be said that the above signatures are not made by
same person who is accused no. 4. The same person can sign differently
on different occasion. However in handwriting there are particulars
troughs and curves which after scientific identification can be said that
they are made by same person. However no scientific examination of
handwriting of accused no. 4 Sandeep are proved on record and therefore
it cannot be said that this handwriting as pointing out by ld. Counsel for
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accused no. 4 is not signed by one and same person. In ordinary course it
has to be believed that the police officer have duly and diligently
observed their duty. The burden of proof to rebut the above presumption
lies on the accused and same cannot be rebutted by merely oral
statements without any substantive evidence.
67. It is submitted by ld. Counsel for accused that the clothes of
deceased were not shown to any witness which is T-shirt. It is submitted
that PW-6 was shown only dark brown colour pant which was stained in
mud and could not be as such identified. The deposition of PW-6 dated
17.07.2015 at page 4 is pointed out where PW-6 had initially refused to
identify the dead body of his son but when the T-shirt was washed then
he had identified the T-shirt and on the basis of such identification he had
identified the dead body of his son. It is submitted by the ld. Counsel for
the accused that clothes of the deceased were not put in evidence to
PW-33, PW-34 and PW-35. It is submitted that the said clothes therefore
are not proved on record. It is submitted that the clothes are not put to
the witness PW-36, PW-39, PW-46 and PW-48.
68. Ld. Counsel for accused has submitted that the accused person
are not related to recovery of dead body nor the dead body of the child
was recovered at the instance of accused. PW-35 ASI H. Rahman in
cross-examination dated 23.07.2019 at page 3 has deposed that public
person had gathered at Nala and Insp. Paramjeet Singh had prepared site
plan at the spot in his presence. Public person did not join investigation.
IO had recorded statement of one or two public person out of those
public person. PW-35 is not aware whether any information was received
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vide DD No. 88B Mark PW35/DX wherein a PCR information was
received at 10:14 PM that dead body of a girl was found opposite Kailash
Medicos. It is admitted by PW-35 as correct that he knew accused no. 2
Sandeep and therefore he had called accused no. 2 and handed over his
custody to IO Insp. Paramjeet Singh/PW-48. The register no. II the
station daily diary is at page no. 1517 of case file Mark PW35/DX dated
23.09.2013. At serial no. 88 it is recorded that at 10:14 PM dead body of
one girl was recovered. According to ld. Counsel for accused no. 2 that
dead body was already recovered and accused no. 2 was arrested later on.
The dead body was recovered by crime branch. The body could not be
identified at the spot. Ld. Counsel for accused has referred to page no.
1691 of the case file Ex.PW3/G which is identification memo by accused
no. 2 and 3 of the place where the dead body of victim Jatin Dhingra was
thrown after his murder. It is submitted that there cannot be joint
identification memo of both the accused no. 2 and 3 and it has to be
separate and on this account this identification is not valid. It is further
submitted that the identification memo bears signature only of accused
no. 3 Mukesh and it does not bear signature of accused no. 2 and
therefore accused no. 2 was not present due to which his signatures are
not there in the identification memo. As per this identification memo
complainant Sh. Kishan Lal is witness no. 3 who has identified the dead
body in that it belongs to his son Master Jatin Dhingra. Hence as per the
case of the prosecution on 23.09.2013 PW-3 Sh. Kishan Lal has already
identified the dead body of Master Jatin Dhingra. To the contrary PW-3
has also deposed that he had later identified the dead body at Subzi
Mandi Mortuary vide Ex.PW3/D. The accused no. 3 Mukesh was
arrested vide Ex.PW3/B on 23.09.2013 at 5 PM and accused Sandeep
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Kumar was arrested vide Ex.PW35/C on 23.09.2013 at 4:00 PM.
69. PW-35 ASI H. Rahman at page no. 1051 of case file has
deposed that SI Rajesh Kumar had prepared the site plan at the spot i.e.
Nala. Contrary to this PW-48 in cross-examination dated 29.05.2024 at
page 5 has deposed that PW-48 had prepared site plan without scale on
23.09.2013 at the site. It is argued on behalf of accused no. 2 that the IO
has suppressed the site plan prepared by SI Rajesh and another site plan
was prepared later in time according to convenience of investigating
agency which is Ex.PW48/A prepared by PW-48 Insp. Paramjeet at page
no. 1577 of case file.
70. PW-29 in his examination-in-chief dated 29.03.2016 at page
no. 965 of case file has deposed that at the instance of accused Sandeep
one slipper of child was recovered at Nanglipuna drain whereas PW-35 in
his cross-examination dated 23.08.2019 at page no. 1073 of case file has
stated that the dead body was identified on the basis of clothes and
slippers at the spot whereas at that time slippers were not even recovered.
71. In cross-examination dated 23.07.2019 at page no. 3 (page no.
1053 of case file) PW-35 has deposed that IO had recorded the statement
of 1 or 2 person out of public person who had gathered at Nala. It is
submitted that statement of 1-2 person are not placed on record by the
prosecution which is relevant evidence. It is deposed that there is one
diver whose name was Abdul Sattar. PW-35 was beat officer on
23.09.2023 in the same area where shop of accused no. 2 Sandeep is
situated. He is not aware if any information was received vide DD No.
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88B in which a PCR information was given at 10:14 PM that dead body
of a girl was found opposite Kailash Medicos. The DD entry is marked as
PW35/DX. In the same deposition in last two lines at page 3 PW-35 has
admitted as correct that he knew accused no. 2 Sandeep and he called
accused no.2 at the spot and thereafter handed his custody to IO Insp.
Paramjeet Singh. It is therefore submitted that on 23.09.2013 in the night
only accused no. 2 was called after 10:14 PM by PW-35 and handed over
accused no. 2 to the IO PW-48 and how the actual dead body was found
is manipulated by the prosecution and the case is falsely implanted upon
accused no. 2. The DD entry is at page no. 1517 of case file which is
Mark PW35/DX. It is submitted that this witness is not cross-examined
by the prosecution and this evidence will continue to stand against the
prosecution. Ld. Counsel for accused no. 2 has relied on citation titled
Mukhtiar Ahmed Ansari Vs. State of NCT of Delhi AIR 2005 SC 2804
(supra) where it is held that the witness who has not supported the case of
the prosecution and has not been declared hostile will continue to stand
against the case of the prosecution in absence of any explanation.
72. It is noted that the accused cannot say that every witness has
to depose in evidence about every fact. It is for the prosecution to bring
best evidence before the Court. In fact identification of dead body is
primarily has to be done by the parents of deceased who are PW-3 and
PW-6 and if the prosecution can prove and substantiate its evidence even
by one witness then also the same can be sustained. It is settled law that it
is not the number of witness but the quality of witness which is material.
73. Hence there are contradictions found in deposition of
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witnesses regarding identification of dead body at the spot or at the Subzi
Mandi mortuary or that it was identified at some other point in time
keeping in view the fact that initially the dead body could not be
identified due to its being in highly decomposed condition. PW-6 the
mother had refused to identify the dead body of his son as it was highly
decomposed. PW-35 has deposed that the dead body was identified on
the basis of clothes and slippers on 23.09.2013 whereas slippers were not
recovered on 23.09.2013 but after that on 25.09.2013. PW-34 has
deposed that the dead body was identified at the spot only when the face
of the body was washed and this body was identified by PW-3 whereas
the PW-3 has deposed that the body could not be identified due to the fact
that dead body was highly decomposed. Further, the recovery of one
dead body was specifically put to both PW-35 and PW-48 which was
recorded vide DD No. 88B/Mark PW35/DX and this information was
received at 10:14 PM regarding dead body of girl found opposite Kailash
Medicos. When this evidence has specifically put to the above witness
then prosecution is liable to explain whether this body of the girl reported
on 23.09.2013 at 10:14 PM is the same body of the kidnapped boy
Master Jatin Dhingra or some other person. However there is no
explanation by the prosecution in this respect. PW-35 was beat constable
of the area where from this body allegedly of the girl was recovered
behind Kailash Medicos in the drain/Nala. This also raises question about
pointing out of the dead body of victim at Nanglipuna drain on the face
of receipt of information of recovery of dead body of a girl vide DD No.
88B/Mark PW35/DX. There is no explanation that what happened to the
dead body of a girl and PW-35 being the beat constable cannot remain
silent to this aspect. The silence on material aspects creates doubt in the
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case of the prosecution. Moreso the memos were prepared as to
identification of dead body on next day. No public witness was joined in
recovery of dead body and in view of the contradictions and
improvements pointed out in the deposition of witness it has become
highly incumbent on the part of investigating agency to join public
witness before recovering dead body on the pointing out of the accused
person. Hence the above facts creates doubt in the story of prosecution if
the dead body at all was recovered on the pointing out of the accused
person. Further, there is difference in the height of dead body recovered
which is 4 feet and 5 inches whereas reported height of dead body was 4
feet and 2 inch. It is not the case of the prosecution that the height of
deceased could vary by 3 inch by such drowning in water/floating of the
body. No evidence is produced in this respect by the prosecution that the
body of the deceased could have bloated in height by 3 inches. Further,
the body was identified by the clothes and not by its DNA profiling or
further medical examination. Hence recovery of correct body and at the
instance of accused persons is doubtful in the case of the prosecution.
2. WHETHER THE DOCUMENTS WERE GIVEN BY MANOJ/PW-2
TO ACCUSED NO. 1 FOR TRAINING
74. PW-48 in his examination-in-chief dated 13.01.2023 (pre-
lunch session) at page 2 has deposed that accused no. 1 had got recovered
from first floor of his house documents in the name of Manoj Kumar and
a paper containing bio-data format in which photograph was already
removed from the space provided. The said bio-data was in a folder
produced by accused no. 1 which also contains documents in the name of
Manoj Kumar. The documents were found attested which were seized
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vide memo Ex.PW37/A and the documents are marked as Mark
PW37/1(colly) on record.
74.1 It is argued on behalf of accused no. 2 that transfer of
documents from Manoj to accused no. 1 Gautam is not admissible under
Section 27 of Evidence Act, 1872. PW-37 in his examination-in-chief
dated 15.04.2017 at page 3 and page no. 1087 of case file where it is
deposed that on interrogation accused no. 1 Gautam admitted receiving
of photocopy of documents and photograph of Manoj which he had given
to accused Sandeep whose disclosure statement was recorded vide
Ex.PW35/B and Ex.PW35/E. At page no. 2 of the examination-in-chief it
is deposed by PW-37 that Manoj told PW-37 that he had given attested
photocopy of documents alongwith photograph to one Gautam Jain for
some job purpose few years ago when he was working in some BPO. It is
argued on behalf of accused no. 2 that till that time accused no. 1 Gautam
was neither named in FIR nor accused no. 1 Gautam was in police
custody and therefore the same cannot be read as evidence under Section
27 of Evidence Act, 1872. The disclosure statement of accused no. 1
Gautam which is Ex.PW35/B at page no. 1699 of case file is referred. In
reference to deposition of PW-35 dated 23.08.2019 at page 3 and page
no. 1065 of case file where it is deposed by PW-35 that disclosure
statement of accused Gautam was not recorded in his presence nor any
clue or evidence was recovered from accused no. 1 in his presence to
establish any link with co-accused. PW-35 is ASI H. Rahman is shown as
witness to disclosure statement of accused Gautam Jain in Ex.PW35/B
and hence the recording of disclosure statement of accused no. 1 has
become doubtful.
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75. After going through the case file PW-37 was unable to
indicate seizure memo in respect of documents received from service
provider. Hence it is argued for accused no. 2 that there is no new
discovery under Section 27 of Evidence Act, 1872 as the IO already had
possession of copy of election I-card of Manoj Kumar though it is
deposed by PW-37 at page 2 that he does not remember whether prior to
arrest of accused no. 1 he was having possession of copy of election I-
card of Manoj Kumar. It is deposed voluntarily that he saw details of
mobile phone subscription and the documents provided by service
provider might be including the copy of I-card of Manoj. It is admitted
as correct that Manoj Kumar was with PW-37 on 22.09.2013 and the
CAF was already received on 22.09.2013 and therefore documents were
already received by PW-37 even before alleged disclosure by accused no.
1 and accused no. 2.
76. It is submitted on behalf of accused no. 1 that prosecution has
no evidence to show that accused no.1 Gautam Jain had ever worked
with SERCO BPO. PW-2 Manoj in cross-examination dated 07.01.2015
at page no. 683 of case file has deposed that he was appointed in Serco in
2007. It is noted that the alleged documents were given to accused no. 1
by PW-2 in the year 2009 and such documents were not taken back by
him till the year 2013. The alleged documents were given for the purpose
of training. In reference to SERCO BPO at page no. 2 of the same cross-
examination PW-2 has deposed that accused no. 1 Gautam used to verify
documents at SERCO. However it is argued that accused no. 1 has no
relation with SERCO BPO and he had never worked in SERCO BPO. At
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page no. 4 of same cross-examination it is deposed by PW-2 that police
alongwith his friend Anil had came to farmhouse between 1 to 1:30 AM
on 21.09.2013 where he was working. PW-2 remained in police custody
upto 24.09.2013. It is further deposed that PW-2 had given documents
which are photocopy of I card, photo, photocopy of educational
documents, photocopy of ration card, form to two other person namely
Ajit Kumar and one another person Sh. Manoj. Sh. Ajit was residing at
B-Block, Jahangir Puri and Manoj was residing at Ramgarh near
Jahangirpuri Metro Station. Manoj used to work at NDPL. He did not
name any person from Adarsh Nagar who is a photographer. It is argued
on behalf of accused no.1 that accused no. 3 is a photographer. PW-2
gave documents to Sh. Ajit and another person Sh. Manoj at the time for
getting job. The attestation by witness was required. It is argued that
there was no reason with the police to arrest accused no. 1 since
documents were given by PW-2 to many persons and accused no. 1 is not
related in any manner to SERCO BPO. As per seizure memo Ex.PW37/A
dated 24.09.2013 (page no. 1719 of document file) all the documents are
photocopy. It is argued that the above documents were already available
with the police on 23.09.2013 as PW-39 in his examination-in-chief dated
05.09.2013 has deposed that on 23.09.2013 he with Insp. Naresh and SI
Rajesh had interrogated PW-2 Manoj and because the said documents
were already available with the police the police could have interrogated
PW-2 in this respect.
77. PW-2 in his cross-examination dated 07.01.2015 has deposed
that he had not been provided with the appointment letter by SERCO
BPO. He does not remember the name of the person who had interviewed
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him. He had given proof of his employment in Facing House to the
police. The name of his senior is one Sh. Maninder and the Supervisor
were Ravi and Nitin. He does not remember the name of manager and
incharge of HR department. In his team there were 25-30 field agents. It
is argued that when PW-2 was already working with SERCO BPO in the
year 2007 then there is no need to give documents in the year 2009. at
page no. 3 of same cross-examination it is deposed by PW-2 that there
was short commission on account of which many of boys have left the
job including PW-2 in SERCO company and therefore their team could
not get the training. The form Ex.PW2/DB allegedly given by him to
accused no. 1 Gautam does not bear his signature and does not affix his
photograph. The Form does not bear date. It is pointed out on behalf of
accused no. 1 that PW-14 in his cross-examination dated 11.04.2022 (at
page no. 851 of case file) has deposed that PW-2 Sh. Manoj was working
as generator operator in telephone exchange at Khera Khurd, Delhi.
PW-2 used to sign in log book after resolving the problem which is
further verified by junior telephone officer and further verified by PW-14.
It is admitted as correct that the photograph Ex.PW5/A at point X and
signature appearing at point Y is of PW-2 Manoj Kumar. It is submitted
that document Ex.PW14/A and Ex.PW14/B at page no. 1723 and page
no. 1725 of document file bears date of attestation as 16.01.2009.
Similarly document Ex.PW14/C and Ex.PW14/D bears the same date of
attestation. PW-14 in his examination-in-chief dated 28.09.2015 has
deposed that he was posted as SDO at Alipur exchange in the year 2009
and PW-2 Manoj was working on contract basis as generator operator. He
had attested the documents of Manoj Kumar/PW-2. It is further deposed
that PW-2 was working in Khera Khurd exchange since the year 2004
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and he does not remember after year 2009 till which date PW-2 had
worked at MTNL exchange. PW-2 did not disclose the detail of job for
which he got his documents attested and his duty hours were from 9 AM
to 5 PM. The ID card of PW-2 of working at SERCO BPO and the date
of joining was shown as 01.12.2008 which is at page no. 1763 of case
file. Hence the above document of the prosecution is contrary to the
deposition of PW-14 that PW-2 was working as generator operator
continuously from the year 2004 till the year 2009 and further at MTNL.
78. The said application form for training at SERCO BPO is
Ex.PW37/1 ( at page no. 1721 of document file). This form is addressed
to the Central Manager, N/S, SPARTA Limited. This is the alleged
training form given by PW-2 to accused no. 1 Gautam. It is noted that the
prosecution has to show that the PW-2 was nominated for training at N/S
SPARTA Limited by SERCO BPO so that he could have applied for this
training or the prosecution has to show the eligibility of PW-2 as
prescribed by SERCO BPO to apply for training at N/S SPARTA
Limited. In fact prosecution had not made any inquiry in this respect at
N/S SPARTA Ltd. or from SERCO BPO to show that the PW-2 at that
time had to apply for this training. In absence of which it cannot be said
that PW-2 had to apply for such training and therefore it cannot be said
that the said documents were given by PW-2 to accused no. 1 Gautam for
such training. It is further noted that the IO PW-48 never went to
SERCO BPO to make investigation that whether accused no. 1 had any
connection with it or there was any training at SERCO BPO or in
reference to it in the year 2009 or that who was conducted the training. It
is noted that when PW-2 was already employed then why he will be
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given training by SERCO BPO at all. PW-48 in his cross-examination
dated 20.04.2024 has deposed at page no. 3 that he did not investigate
that PW-2 was working at Khera Khurd exchange. He does not have any
evidence to show that PW-2 was ever sacked from SERCO BPO after the
year 2007. At page 4 of cross-examination dated 20.04.2024 of PW-48 it
is deposed that PW-48 does not know the job profile, qualification and
designation of PW-2 at SERCO BPO. He did not ask PW-2 Manoj
Kumar when he joined and left SERCO BPO. No appointment letter was
given by PW-2 of his joining at SERCO BPO. He did not go to SERCO
BPO to find whether PW-2 was working there or not. He does not know
when the attested documents were provided by PW-2 to accused no. 1
Gautam Jain. He did not investigate any company by the name M/S NIS
SPARTA. The sponsorship letter Ex.PW2/DB. He does not know address
of M/S NIS SPARTA. He does not know for what training Ex.PW2/DB
was for. It is admitted as correct in Ex.PW2/DB there is no mention of
SERCO BPO nor there is seal of SERCO BPO nor there are signature of
PW-2 Manoj. PW-48 does not know who was sponsorsing the training
mentioned in Ex.PW2/DB=Mark PW37/1 or that when this training had
to take place. He did not investigate Sh Ajit and another person Sh.
Manoj to whom documents were given by PW-2 Manoj.
79. It is deposed at page no. 6 of same cross-examination of
PW-48 that he does not have an proof to show that accused no. 1 Gautam
Jain was working at SERCO BPO nor did he investigate such
employment of accused no. 1. He does not remember if any witness
stated about accused no. 1 working at SERCO BPO. He did not record
statement of staff at SERCO BPO in reference of accused no. 1. He had
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no evidence in which school accused no. 1 had studied nor does he any
evidence to show that accused no. 1 Gautam and accused no. 2 had
studied in the same school.
80. PW-39/ASI Pawan Kumar at page 1167 of case file in cross-
examination dated 08.09.2017 has deposed that he does not remember
whether PW-2 had told in which year he had given documents to accused
no. 1. PW-2 did not show proof of his employment on 23.09.2013 to the
IO whereas PW-39 is witness to seizure memo of documents from
accused no. 1 vide memo Ex.PW37/A (page no. 1719 of document file).
The documents are Ex.PW14/A and Ex.PW14/B. PW-39 in cross-
examination dated 08.09.2017 at page no. 8 (page no. 1175 of case file)
has deposed that he does not remember if any document in the name of
accused no. 1 Gautam was seized. PW-37 in cross-examination dated
07.07.2017 at page no. 2 (at page no. 1141 of case file) has deposed that
he does not remember whether any document pertaining to SERCO BPO
in the name of accused no. 1 Gautam were recovered. He does not
remember whether the person to whom the separate documents were
related had been investigated. PW-35 in his cross-examination dated
23.08.2019 at page 1 (page no. 1061 of case file) has deposed that IO
might have shown documents to PW-2/Manoj Kumar and PW-2 Manoj
Kumar did not produce any document to the IO in his presence. PW-35 is
witness to seizure memo document from accused no. 1 vide Ex.PW37/A.
PW-48 in cross-examination dated 07.05.2024 at page 3 has deposed that
he does not know the exact time of reaching the house of accused no. 1.
He did not ask neighbours to join the investigation against accused no. 1
Gautam. It is argued that no public witness was joined and above seizure
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of documents from accused no. 1 cannot be relied.
81. The seizure memo Ex.PW18/B pertains to seizure of bowl in
which the Alprex tablets were crushed and the said Alprex tablet were
allegedly administered to the kidnapped boy by the accused person. The
seizure memo of keys Ex.PW18/A with which the said Alprex tablet were
allegedly crushed in the bowl are at page no. 1747 of the case file. It is
argued that the keys were not sent to FSL by the prosecution. Other than
this it is pointed out that as per deposition of PW-45 Dr. Kanak Lata
Verma from RFSL, Chanakyapuri the sealed wooden box was received
on 01.11.2013 whereas as per seizure memo Ex.PW18/A the keys were
seized on 26.09.2013 and similarly the other articles i.e. bowl in which
the said Alprex tablets were crushed. It is submitted that there is material
delay in sending the seized articles to the FSL due to which the evidence
has deteriorated. It is further argued that no evidence could be detected of
Alprex tablet in Ex.2 which is black colour small bowl and it did not find
contain Alprazolam (Benzodiazepine) group of drugs which is so
deposed by PW-45. It is further deposed that Benzodiazepines and
pesticides could not be detected in Ex.1A, Ex.1B and Ex.1C which were
in parcel 1 containing viscera of Jatin Dhingra. Hence it is argued that
there is no evidence that Alprex tablets were at all administered to the
deceased boy Master Jatin Dhingra.
82. It is argued on behalf of accused no. 3 that PW-35 is
instrumental in bringing accused no. 2 and 3 in picture as PW-35 knew
the Dimple Telecom beforehand and also the accused no. 3 the
photographer which is deposed by PW-35 in his evidence. The pointing
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out memo of deceased is ExPW3/G. It is argued that the role of PW-35 is
not clean as he knew before hand accused no. 2 and 3. The personal
search memo Ex.PW35/D of accused no. 2, Ex.PW35/F of accused no. 3,
personal search of accused no. 4, disclosure statement of accused no. 3
Ex.PW35/H at page no. 1679 of case file, another disclosure statement at
page no. 1689 of case file of accused no. 3 all of which bears signature of
PW-35 of Ct. H. Rahman only as witness. It is submitted that it is no
coincidence and the accused no. 2 and 3 are falsely roped in at the
instance of PW-35 as PW-35 knew before hand both accused no. 2 and 3.
it has come in deposition of PW-35 in cross-examination dated
23.07.2019 at page no. 3 (page no. 1053 of case file) that he was beat
officer on 23.09.2013. He has admitted as correct that he knew accused
no. 2 and called him and handed him over to IO Insp. Paramjeet Singh.
At page no. 1071 of case file in cross-examination dated 23.08.2019 it is
deposed by PW-35 that he knew accused no. 3 Mukesh prior to the date
of incident as accused no. 3 used to run shop of photography from whom
PW-35 used to take services when required.
83. The above evidence proves on record that PW-2 Manoj was
working as generator operator at the office of SDO at Alipur Exchange
since the year 2004 to 2009. The office working time were from 9 AM to
5 PM. The ID card of PW-2 of working at SERCO BPO shows his date
of joining as 01.12.2008. However there is no investigation by the IO
from the SERCO BPO to prove that PW-2 was employed with SERCO
BPO in the year 2008. The deposition of PW-2 is found to be
contradictary that between the year 2004 to 2009 not only he worked at
SERCO BPO but also for the purpose of getting some training he had
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submitted the form to accused no. 1 Gautam Jain when PW-2 was not
found working at SERCO BPO during such period. There was no reason
with PW-2 to give any documents to accused no. 1 to get training. The
training had to be obtained from N/S Sparta However there is absence of
investigation and evidence in this respect if any training had to be
imparted by SERCO BPO to PW-2 through N/S Sparta Ltd. Or that any
training was invited by SERCO BPO from PW-2 at N/S Sparta Ltd.
There is no evidence that accused no. 1 Gautam Jain had any connection
with SERCO BPO for any purpose or with N/S. Sparta Ltd. For the
purpose of imparting training to PW-2. Hence the theory of prosecution
that the documents were given by PW-2 to accused no. 1 Gautam Jain for
the purpose training falls on the ground as it has no basis in evidence.
Hence accused no. 1 could not be connected by the prosecution in
receiving documents from PW-2 on the basis of which the alleged SIM
card of mobile phone was issued by PW-12. No document was recovered
pertaining to SERCO BPO in the name of accused no. 1 Gautam Jain.
PW-48 does not remember the exact time of reaching the house of
accused no. 1 nor did he ask the neighbours to join. IO did not investigate
Sh. Ajit and one other person Manoj to whom documents were supplied
by PW-2 Manoj Kumar. There is no evidence that any company by the
name N/S Sparta had ever existed. The doubt has multiplied in view of
the fact that before making search of house of accused no. 1 the IO did
not join public witness and this goes to the root of the case of the
prosecution.
3. DISCLOSURE, DISCOVERY AND SEIZURE
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84. The disclosure statement of accused Mukesh is Ex.PW35/G
and in evidence of PW-25 Ct. Sandeep Kumar has deposed in cross-
examination at page 2 that the disclosure statement of accused Mukesh
was recorded by IO in his presence on 27.09.2013 which was signed by
PW-25. It is further deposed that the disclosure statement was recorded at
Sunny Medical store. The Sunny Medico was open. It is deposed that
they did not have key of the Sunny Medico. It is argued on behalf of
accused no. 4 Sandeep that it implies that after 26.09.2013 the shop
Sunny Medico was again opened by the investigating agency on
27.09.2013. PW-35 in cross-examination dated 23.08.2019 has deposed
that after arresting accused no. 4 Sandeep the shop was closed and the
key of M/s. Sunny Medicos was retained by investigating officer. From
the shop IO has also seized tablets. It is deposed by PW-37 in cross-
examination dated 15.04.2017 at page 8 that they had visited the shop in
the afternoon which is Sunny Medicos but he does not remember the
time. At that time accused no. 2 and 3 were with them and accused no. 4
was found outside the shop.
84.1 Ld. Counsel for the accused has relied on citation titled Boby
Vs. State of Kerala in Criminal Appeal No. 1439 of 2009 from Hon’ble
Supreme Court of India at the relevant para no. 25 which is reproduced
hereasunder:
25. A three−Judges Bench of this Court recently in the case of
Subramanya v. State of Karnataka7, has observed thus:
“82. 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:
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“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.”
83. 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.
84. 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 7 2022 SCC
OnLine SC 1400 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 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
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investigating officer then it is clear that the same is deficient in all
the aforesaid relevant aspects of the matter.”
85. The IO has not joined two independent witness at the time of
recording of disclosure of the accused which is mandatory. It is submitted
that it is laid down in citation titled Rajesh and Anr. Vs. State of M.P.
(2023) 15 SCR 1 (2023) INSC 839 (Coram 3) (supra) that how the
panchnama has to be drawn and the prosecution has not drawn
panchnama as per settled law.
86. PW-27 in his examination-in-chief dated 29.03.2016 has
deposed that investigation of the case was handed over to SI Rajesh on
21.09.2013. In further examination-in-chief dated 04.08.2016 PW-27 has
deposed that DD No. 30A was recorded on 21.09.2013 which is
Ex.PW3/B. The complaint is Ex.PW3/B which is DD No. 30A dated
21.09.2013. It is deposed by PW-27 in cross-examination dated
04.08.2016 that no other DD was recorded by SI Rajesh Kumar. In the
same deposition PW-27 has deposed that the complainant had given
direct oral complaint regarding kidnapping Master Jatin Dhingra which
was shared with Insp. Paramjeet Singh by PW-27 after which DD No.
30A was recorded. Ex.PW3/B was recorded by HC Joginder
Singh/PW-27. Ex.PW3/A is FIR which was initially registered under
Section 363 IPC. It is admitted by PW-27 as correct that the third page of
FIR which is Ex.PW27/A has all the writing in different pen and at some
point fluid has been used.
87. The complaint Ex.PW3/B is dated 21.09.2013 and it was
lodged on 6:35 PM. The victim was missing since 11:30 AM on
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21.09.2013. The FIR was registered on the same date even if different
pen are used in the FIR or fluid is used even then it does not create any
doubt about the earliest registration of FIR and that it was registered in
due course. No doubt arise in proper registration of FIR.
88. Ex.PW34/DA at page no. 1899 of case file is letter to CMO,
Mortuary by SI Rajesh Kumar which was received at 10:10 PM on
23.09.2013. It is argued that by that time Section 363 IPC was there on
the application and Section 302 IPC was not added by the IO.
88.1 As per cross-examination of PW-24 dated 25.02.2016 the IO
at that time was SI Rajesh Kumar on 23.09.2013. PW-24 was posted as
Incharge Crime Team, North District and he remained at the spot from
8:10 PM to 8:50 PM. It is argued on behalf of accused no. 2 that till that
time there was no disclosure on record. PW-48 in his deposition dated
29.05.2024 at page 1 has deposed that in crime team report Ex.PW24/A
the name of IO has been wrongly written as SI Rajesh Kumar. However it
is admitted as correct that SI Rajesh Kumar had preserved the dead body
in the mortuary under directions of PW-48 and it is deposed that PW-48
was IO. The Ex.PW34/DA is application to CMO Mortuary. It is deposed
by PW-48 that the penal provision mentioned are Section 363, 364A IPC
and this application was moved by SI Rajesh Kumar on behalf of PW-48
Insp. Paramjeet.
89. PW-28 in his examination-in-chief dated 29.03.2016 at page 2
has deposed that Insp. Paramjeet Singh on 26.09.2013 had deposited with
him one sealed parcel containing mobile SIM cover and another sealed
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parcel containing keys. One more sealed parcel with the seal of PS
containing one bowl and strip of medicine which he had deposited in
Malkhana on 26.09.2013. It is pointed out by the ld. Counsel for accused
no. 4 that PW-28 had contradicted deposition of PW-25. PW-25 has
deposed that they went to Sunny Medicos on 27.09.2013. It is pointed out
that as per deposition of PW-18 in cross-examination dated 22.02.2016 at
page 2 the pullanda of key was seized vide memo Ex.PW18/A from the
house of accused no. 4 Sandeep @ Sunny. PW-18 Ct. Bani Ram has
deposed at page 6 that he does not remember if any document was
prepared at spot nor does he remember that he had signed such
document. It is deposed further that the key of the shop was brought by
accused no. 4 Sandeep which was hanging on a nail on the wall. No other
accused person except accused no. 4 was with them on 26.09.2013. It is
argued on behalf of accused no. 4 that the investigating agency already
had key of the shop M/s. Sunny Medicos in their possession on
26.09.2013 which was deposited in Malkhana on 26.09.2013 itself and
the Sunny Medicos cannot be reopened without taking such keys from
the Malkhana by the IO on 27.09.2013. Hence keys of the M/s. Sunny
Medicos were already in possession of the police. It is submitted by the
ld. Counsel for the accused that it is doubtful the way in which the keys
were recovered from accused no. 4 Sandeep. PW-3 in cross-examination
dated 23.02.2015 at page 2 has deposed that some public person of
neighbourhood had gathered at the time of apprehension of accused no. 4
Sandeep who was getting down from the shop after closing it. PW-25 in
his cross-examination dated 25.05.2016 at page 2 has deposed that
disclosure statement of accused no. 3 Mukesh was recorded by the IO in
his presence on 27.09.2013 at Sunny Medical Store and the shop was
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open. It is deposed that they did not have key of Sunny Medico. The
PW-48 in cross-examination dated 23.03.2023 at page 4 had denied the
suggestion that the keys of Sunny Medicos were seized by him on
23.09.2013 or that the seizure memo of key was deliberately prepared on
26.09.2013. It is deposed at page 3 that the seizure memo of keys of the
shop of Sunny Medicos was prepared at the shop of Sunny Medicos on
26.09.2013 after coming from the house of accused no. 4. It is deposed
that PW-48 with investigating team around 8-9 persons had taken only
accused no. 4 inside his house and the seizure memo of keys was not
prepared at the house of accused no. 4 neither it was prepared at PS
Burari. Efforts were made to join public person but none agreed. PW-35
is beat officer on 23.09.2013 in the same area where shop of accused no.
4 Sandeep is situated. It is deposed by PW-35 HC H. Rehman in cross-
examination dated 23.08.2019 at page 4 that at the time of arrest of
accused no. 4 Sandeep the shop M/s. Sunny Medicos was open. It is
deposed by PW-46 in cross-examination dated 25.03.2022 that accused
no. 4 Sandeep was arrested vide memo Ex.PW3/C on 23.09.2013 at
about 5:40 PM. In cross-examination dated 25.03.2022 it is deposed by
PW-46 at page 5 that he does not remember whether the shop of accused
no. 4 was closed or open when they had reached there. Similarly
PW-48/IO does not remember whether the shop of accused no. 4 was
open or close when they had reached there. It is deposed by PW-35 in
cross-examination dated 23.08.2019 at page 4 that at the time of arrest of
accused no. 4 Sandeep vide memo Ex.PW3/C dated 23.09.2013 the shop
M/s. Sunny Medicos was open. At page no. 5 it is deposed that the shop
was closed by investigating officer/IO/PW-48 and the key were retained
by the IO of M/s. Sunny Medicos. It is submitted that as per deposition of
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PW-35 the investigating team had reached at Sunny Medicos on
23.09.2013 and keys were already seized by the IO and therefore
recovery is doubtful. The accused were taken at special cell where
disclosure was recorded and not at the spot and it is submitted that before
disclosure the recovery was already effected by the investigating agency
and hence Section 27 of Evidence Act is not applicable. It is deposed by
PW-37 in examination-in-chief dated 15.04.2017 at page 7 that mobile
phone of make Samsung, Micromax and another one touch screen
Micromax Ex.PY6, Ex.PY7 and Ex.PY8 were recovered from accused
no. 4 Sandeep. PW-39 in cross-examination dated 08.09.2017 has
deposed that his statement was recorded by IO on 24.09.2013 in the
police station but he cannot tell the time. It is submitted by the ld.
Counsel for accused that PW-3 has not deposed that the keys were seized
from accused no. 4 when accused was closing his shop i.e. as per
deposition of PW-3 at page 2 dated 23.02.2015.
90. PW-25 has deposed that they had went to Sunny Medicos on
27.09.2013 whereas PW-28 has deposed that they had already deposited
sealed parcel containing mobile SIM cover and another parcel containing
keys at Malkhana on 26.09.2013. Another parcel containing bowl and
strip of medicine was also deposited. It means that the above articles
were already seized on or before 26.09.2013. PW-18 has deposed that the
pullanda of keys was seized from house of accused no. 4 and the key of
the shop was brought by accused no. 4 which was hanging on a nail on
the wall. To the contrary PW-3 has deposed that accused no. 4 Sandeep
was apprehended when he was getting down from the shop after closing
it which means keys were not seized as deposed by PW-18. PW-25 has
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deposed that the disclosure statement of accused no. 3 was recorded on
27.09.2013 at Sunny Medical store and at that time the shop was open
and they did not have key of Sunny Medicos. Whereas as per deposition
of PW-18 the keys were already seized by IO on 26.09.2013. PW-48 has
deposed that seizure memo of keys of Sunny Medicos was prepared at
the shop on 26.09.2013 whereas PW-18 has deposed that keys were
seized at the house of accused no. 4 Sandeep. Hence there was no reason
to seize the keys at the house of accused no. 4 Sandeep and thereafter
prepare the memo at the shop of Sunny Medicos. This creates doubt in
the case of prosecution as to such seizure of keys and further search and
seizure at the shop of Sunny Medicos of mobile SIM cover and a strip of
medicine. No public witness was joined by the IO though as per PW-3
public person from neighbourhood had gathered at the time of
apprehension of accused no. 4 Sandeep. PW-46 has deposed that accused
no. 4 was arrested on 23.09.2013 at about 5:40 PM vide memo
Ex.PW3/C. Whereas the IO had not shown arrest of accused no. 4 on
record by such time. PW-35 has deposed that IO had reached at Sunny
Medicos on 23.09.2013 and keys were seized by him. The accused was
taken to Special Cell where his disclosure was recorded and disclosure
was not recorded at the spot. It is further deposed by PW-39 that he
cannot say at what time his statement was recorded by the IO on
24.09.2013. PW-3 has not deposed that if the keys were seized from
accused no. 4 in his presence though he was with the investigating team.
91. PW-35 in cross-examination dated 23.08.2019 at page 4 has
deposed that at the time of arrest of accused no. 4 Sandeep the shop M/s.
Sunny Medicos was open. It is admitted as correct at page 5 that the
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clinic of Dr. Rajan was open at the time of arrest of accused no. 4
Sandeep. However no person was called to join as witness at the time of
arrest of accused no. 4. Whereas PW-48 in his cross-examination dated
18.03.2023 at page 2 has deposed that on 23.09.2013 at about 4:30 PM
when they had reached at the shop of accused no. 4 Sandeep and
apprehended him then the shop M/s. Sunny Medicos and clinic of Dr.
Rajan was close. At page 3 it is deposed that the disclosure statement of
accused no. 4 was not recorded at the place of his arrest and Insp. Naresh
Kumar was with him at that time. No family member of accused no. 4
Sandeep was called nor any document was prepared at the spot nor any
statement of witness was recorded at the spot of arrest of accused no. 4
Sandeep. It is further admitted by PW-48 at page 3 as correct that he had
not mentioned in the application Ex.PW48/D1 that the accused person
were produced in muffled face. At page 4 of the same cross-examination
it is deposed by PW-48 that he had prepared pointing out memo of shop
Kishor Communication and at that time the said shop was close on
24.09.2013. Both the accused no. 4 Sandeep and accused no. 2 another
Sandeep was with PW-48 and it is argued that joint pointing out memo is
not admissible in evidence. It is further deposed that PW-48 did not
collect bill book of Kishor Communication on 24.09.2013.
92. PW-35 the beat officer has deposed that Dr. Rajan had his
clinic open at the time of arrest of accused no. 4 and no person was called
to join as witness at the time of arrest of accused no. 4 and to the contrary
PW-48 has deposed that efforts were made to join public person but none
has agreed. PW-48 has deposed that shop of Dr. Rajan was close contrary
to the deposition of PW-35. PW-48 has deposed that disclosure of
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accused no. 4 was not recorded at the place of his arrest nor any
document was prepared at the spot. The pointing out memo of the shop of
Kishor Communication was made on 24.09.2013 and at that time the
shop was closed whereas PW-19 from Kishor Communication has
deposed that police had came to him with the accused person and made
inquiry regarding the case.
93. Ex.PW48/E is joint pointing out memo by accused no. 2 and
accused no. 4 of mobile shop Kishor Communication from where mobile
handset of make Santosh was purchased on 16.09.2013 and from which
ransom call was allegedly made. The pointing out memo is at page no.
1693 of case file. It is argued that joint pointing out memo is not
admissible in law.
94. The joint pointing memo of accused no. 2 and 4 of mobile
shop of Kishor Communication is not found to be a valid pointing out
memo. The pointing out memo or disclosure statement in each case has
to be separate. The pointing out memo is in the nature of disclosure and
exact words of the accused has to be recorded as in the case of
panchnama and the law in this regard is already discussed above and laid
down in citation titled Rajesh and Anr. Vs. State of M.P. (2023) 15 SCR 1
(2023) INSC 839 (Coram 3) (supra) and also in citation titled Boby Vs.
State of Kerala in Criminal Appeal No. 1439 of 2009 (supra). Hence the
pointing out memo of Kishor Communication does not help the case of
the prosecution when the same is not prepared in accordance with law.
95. The seizure memo of mobile Ex.PW35/N=Mark A at page no.
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1713 of document file. PW-3 in examination-in-chief dated 11.12.2014 at
page no. 2 (page no. 709 of case file) has deposed that at the time of
arrest of accused no. 4 Sandeep a black colour bag was on his shoulder.
Thereafter they all returned to Maurice Nagar office. After arrest of
accused no. 4 vide memo Ex.PW3/C the search of his bag was
conducted. The search was therefore conducted at Operation Cell
Maurice Nagar from which one mobile phone and one SIM card was
recovered and as per case of prosecution this mobile phone and SIM was
used to make ransom call. PW-35 in his examination-in-chief dated
15.09.2016 at page 3 (page no. 1031 of case file) has deposed that after
arrest the accused no. 1 was brought to Operation Cell PS Maurice Nagar.
Hence it is argued that the search of the bag was made after bringing the
accused at Operation Cell Maurice Nagar and not at the spot and the
investigating agency had implanted the mobile phone and SIM on the
accused no. 1 Gautam. It is argued that the personal search of accused no.
1 was already taken at the spot and the police already knew that accused
no. 1 has no article with him like mobile phone or SIM. PW-33 in cross-
examination dated 19.02.2019 at page 2 (at page no. 1009 of the case
file) has deposed that he is not aware about the make of mobile phone or
its recovery. No public person was joined at the time of arrest of accused
no. 4. He was present and he does not remember whether Sunny Medicos
was open or close at that time. He does not remember whether anybody
except police officer was present at the time of arrest. It is deposed that
accused no. 4 Sandeep was arrested on 23.09.2013 about 5 PM or 5:30
PM or 6 PM on that day. He does not remember the colour of bag
containing mobile phone or make of mobile phone. He does not
remember about the service provider of the SIM.
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96. PW-48 at page no. 1269 of case file in examination-in-chief
dated 02.03.2022 has deposed that the red and black colour mobile phone
of make Santosh with one battery and SIM card of Idea bearing no.
89910434061318973942H2 and the mobile phone and battery with SIM
card of Idea is Ex.PY10(colly) was recovered from accused no. 4. PW-35
has deposed at page no. 1031 of case file in his examination-in-chief
dated 15.09.2016 that after arrest the accused no. 2, 3 and 4 all were
brought to Operation Cell PS Maurice Nagar. The personal search was
made of accused no. 4 vide Ex.PW35/H and his disclosure statement is
Ex.PW35/J. The personal search memo of accused no. 4 is at page no.
1667 of document file which does not bear signature of accused no. 4 but
it bears signature of accused no. 3 and it is argued that this shows that
every thing was implanted later on and nothing was recovered from
accused no. 4. It is argued on behalf of accused no. 4 that the bag was
seen with accused no. 4 at Sunny Medicos where personal search was
also conducted vide Ex.PW35/H. Thereafter accused no. 4 was brought to
Operation Cell, PS Maurice Nagar. The arrest memo of accused no. 4 is
Ex.PW35/C dated 23.09.2013 shows arrest at Operation Cell, North
Maurice Nagar. To the contrary PW-37 at page no. 4 of his examination-
in-chief dated 15.04.2017 has deposed that accused no. 4 was
apprehended at the shop Sunny Medicos and thereafter they had returned
to the office of Operation Cell at Maurice Nagar.
97. Ex.PW35/H is personal search memo of accused no. 4
Sandeep whereas it bears signature of accused no. 3 Mukesh which
shows that the investigation was made to hurry up the matter and accused
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no. 4 was not present at the time of preparation of personal search memo
Ex.PW35/H and that accused no. 3 was present is also doubtful in view
of inconsistencies in evidence of prosecution.
98. It is submitted by the ld. Counsel for accused no. 4 Sandeep
that the seizure memo at Sunny Medicos is dated 26.09.2013 whereas at
the shop of Sunny Medicos the IO had reached on 23.03.2023. PW-35 in
his cross-examination dated 23.08.2019 at page 4 has deposed that at the
time of arrest of accused no. 4 the shop M/s. Sunny Medicos was open
and at page 5 it is deposed that the shop M/s. Sunny Medicos was closed
by investigating officer and the keys were retained by investigating
officer. The investigating officer had seized the tablets from the shop of
accused no. 4 Sandeep. It is submitted that the IO had went to the shop of
accused no. 4 Sandeep on 23.09.2013 and the keys were already seized
by the IO on the said date.
99. The pointing out memo of Dimple Telecom is Ex.PW3/F from
where the SIM card was purchased and it is deposed by PW-3 at page no.
4 of his examination-in-chief dated 11.12.2014 that the said memo was
prepared at the instance of accused no. 3 Mukesh. It is deposed by PW-3
at page 4 of his examination-in-chief that accused no. 1 had purchased
the SIM card and not accused no. 3. It is submitted that at page no. 3 of
cross-examination of PW-3 dated 23.02.2015 (page no. 719 of case file)
it is deposed that they remained at Nala for about 15-20 mins. Whereas
PW-35 at page no. 1051 of case file and page no. 2 of his cross-
examination dated 23.07.2019 has deposed that the proceedings at Nala
had consumed about 2 or 2½ hrs. The PW-3 in cross-examination at page
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4 dated 23.02.2015 (page no. 721 of case file) has deposed that he is
illiterate and his wife was with him who can read and write and at page
no. 725 of case file it is deposed by PW-3 that whenever he signed the
document then the said document were signed by him which were read
over to him by his wife. The wife of PW-3 was not present when pointing
out memo of mobile shop of Dimple Telecom was prepared vide
Ex.PW3/F though PW-3 has signed the said memo nor it is written in the
memo that it was read over to PW-3 by the IO or his wife before signing
it.
100. The IO has not deposed that he has read over to PW-3 his
witness of pointing out memo of Dimple Telecom shop and in what
language he had explained it.
101. PW-35 in cross-examination dated 23.08.2019 at page 4 has
deposed that at the time of arrest of accused no. 4 Sandeep the shop M/s.
Sunny Medicos was open whereas PW-48 in cross-examination dated
18.03.2023 has deposed at page 2 that on 23.09.2013 at about 4:30 PM
when he had reached the place where accused no. 4 Sandeep was
apprehended then at that time shop of accused no. 4 Sandeep in the name
of Sunny Medicos and the clinic of Dr. Rajan was closed. At page 3 it is
deposed that no document was prepared nor any statement of witness was
recorded at the place of apprehending the accused no. 4 Sandeep. Hence
the various discrepancies are seen in preparation of pointing out memo,
seizure memo, disclosure statement including the place where the
accused were arrested. In such view of the matter when the investigation
officer had prior information of such search of accused and articles then
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it was incumbent upon him to join public witness. He had sufficient time
to join public witness which he did not join and keeping in view the
above discrepancies this makes the case of the prosecution doubtful as to
arrest, seizure and disclosure. The relevant citation titled Mustakeen @
Bhura vs. State (Govt. of NCT Delhi) on 2 nd November, 2020 in CRL. A.
419/2018 & CRL. M. (BAIL) 6459/2020 at para no. 56, 62, 63, 65, and
69 are reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand
on its own legs and cannot draw strength from the lacuna in the
defence case. The appellant may have taken a wrong defence, but it
was for the prosecution to prove its case. In “Sharad Birdhichand
Sarda Vs. State of Maharashtra”, Criminal Appeal No. 745 of 1983
decided on 17.07.1984 by the Supreme Court of India it has been
held that the absence of explanation and /or post explanation, or a
false plea taken by an accused was not sufficient to convict the
accused. It was observed in this case that “it is well settled that the
prosecution must stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence”. This is trite law
and no decision has taken a contrary view. What some cases have
held is only that:
“where various links in a chain are in themselves
complete, then a false plea for a false decence may be
called for aid only to lend assurance to the Court. In
other words, before using the additional link it must be
proved that all the links in the chain are complete and do
not suffer from any infirmity. It is not the law that where
there is any infirmity or lacuna in the prosecution case,
the same could be cured or supplied by a false defence
or a plea which is not accepted by the Court.” In the
instant case, we have already held that PW 11 is not an
eye witness of this case. Considering PW 11 to be the
eye witness of this case, and throwing all settled
principles of law relating to TIP to winds, constable
Kuldeep was joined in the raiding party alongwith secret
informer and other police officials for apprehending the
accused persons of the incident which took place on
6.3.2011, but PW 11 has categorically stated to PW 44
SI Bhim Sain that appellant Arshad was not involved in
the crime which took place on 6.3.2011, but despite thatSC No. 27881/2016
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his disclosure statement was recorded and recovery of
Rs. 40,000/- was effected from him. No doubt, the
appellant has not been able to give proper explanation as
to how he was in possession of Rs. 40,000/-, but burden
was upon the prosecution to prove that the appellant was
involved in the crime which took place on 6.3.2011,
which the prosecution has miserably failed to do, as
discussed hereinabove. Therefore, the Ld. Trial Court
was not correct in drawing presumption against the
appellant Arshad U/s 114 of the Indian Evidence Act and
to convict him. The only evidence which remains on
record against appellant Arshad is his disclosure
statement which is not admissible in evidence. Apart
from this, there is not even an iota of evidence against
appellant Arshad to connect him with the crime which
took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which
lays down that unless and until the testimony of the police
official is corroborated by some independent evidence, the same
cannot be believed. But it is a Rule of Prudence, that a more
careful scrutiny of the evidence of the police officials is required,
since they can be said to be interested in the result of the case
projected by them.
63. In the instant case, we have already observed hereinabove in
the judgment that PW 11 Ct. Kuldeep who has been projected as
an eye witness by the IO of this case, is not an eye witness and
has been planted in order to “solve” the case. Therefore, we have
find it hard to believe the testimonies of the police officials in the
absence of corroboration from any public witness, looking into
the facts and circumstances of this case and also the manner in
which the IO and the SHO have conducted themselves. For the
sake of repetition, the IO had made no efforts to join the public
witnesses. Had he made any such efforts, then the things would
have been different, but in the instant case, the manner in which
the investigation has been done and the non joining of any public
witnesses reduces the arrest and search of the appellant
untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly
killed a man and is the BC of the area would be carrying with
him all the articles mentioned hereinabove with him, that too
after 11 days of the incident. In our opinion, 11 days were
sufficient for the appellant Mustakeem to get rid of these articles
but, strangely enough, as per the prosecution, he was roaming
around with all this stuff of the deceased attached to his chest. ItSC No. 27881/2016
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is also a matter of common sense that whenever an offence is
committed in the jurisdiction of a police station, as a matter of
routine, the concerned SHO places suspicion on the local goons
and specially BC of the area. So, when such is the situation, we
fail to digest the theory of the prosecution that on the day of his
arrest-which is after 11 days of the date of the incident, appellant
Mustakeem would be carrying with him the articles of the
deceased. There would have been record of the accused
maintained in the Police Station and the same could be used to
identify him and establish his involvement. Where was the
necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the
offence, again the Ld. Trial Court has raised presumption U/s 114
(a) of the Indian Evidence Act. The presumption U/s 114 (a) of
the Indian Evidence Act may be available if the goods in
question found in possession of the person in question after the
theft, are proved to be stolen property. Unless the goods are
proved to be stolen property, the presumption U/s 114 (a) of the
Act is not available. In the instant case, the prosecution has not
been able to prove that it was the appellant who had committed
the offence on the date of the incident as alleged by the
prosecution. It was also not justified on the part of the Ld. Trial
Court to draw presumption U/s 114 (a) of the Evidence Act as the
possession, if any, cannot be said to be recent possession.
Therefore, if the prosecution has not been able to prove that the
sum of Rs. 70,000/- which according to the prosecution was
allegedly recovered from the appellant Mustakeem, was the
looted amount, the appellant cannot be convicted with the crime
by raising presumption U/s 114 (a) of the Indian Evidence Act.
102. In view of above contradictions it is desirable that at each time
the recovery was allegedly effected during search and seizure the
investigating agency should have joined public witness/respectable
inhabitants of the society failing which doubt has arisen in respect of
such arrest, search and seizure of the case of the prosecution.
103. PW-48 in cross-examination dated 21.03.2023 at page 1 has
deposed that the bag from accused no. 4 Sandeep was taken into
possession at the place of his apprehending. Ld. Counsel for the accused
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no. 4 has pointed out that when the bag was already recovered from
accused no. 4 at the place of his arrest then police had nothing to recover
from the alleged disclosure statement made by accused no. 4 Sandeep.
Other than this it is pointed out that the signature on disclosure statement
does not appear of accused no. 4. However merely by naked eye it cannot
be examined whether the signature does not pertain to the same person
moreso in a criminal case when accused may be doing several acts to
commit and omit the offence.
104. As per the above deposition of PW-48 when the bag was
already taken into possession by the IO at the place of apprehending the
accused no. 4 Sandeep and his personal search was also conducted at that
place then there was no reason to inspect later on the said bag possessed
at the spot. It had to be inspected and seizure memo must have been
prepared only at the spot. Without following the settled rules the IO had
brought the accused and the bag at Operation Cell of PS Maurice Nagar
and has shown recovery in the said bag against accused no. 4 at the said
place. Admittedly as per deposition of PW-48 above no public witness
was asked to join the investigation at that time. The above discrepancy in
investigation requires that public witness should have been joined at the
time of apprehending the accused and during search and seizure against
them and non-joining of such public witness creates doubt in the case of
the prosecution regarding such recovery of mobile phone or SIM card
from the bag of accused no. 4 Sandeep. The investigating agency cannot
seize the article at one place and make search of those articles at a totally
different place.
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105. PW-19 Sh. Kishor at page 3 of his cross-examination dated
23.02.2016 has deposed that he did not take signatures of the customers
on the bill book. It is argued on behalf of accused no. 4 that the customers
could not be identified by PW-19 therefore he could not identify accused
no. 4. PW-19 is running mobile shop in the name of Kishor
Communication at main road, Nathupura.
106. It is deposed by PW-39 in cross-examination dated
08.09.2017 at page no. 2 that he does not know from whom IO made
inquiry regarding ownership of Krishna Communication. When they had
reached at the said shop with accused no. 4 Sandeep and at that time the
shop of Krishna Communication at Nathupura was closed.
107. PW-46 Sh. Naresh Kumar in cross-examination dated
25.03.2022 at page 4 was shown Ex.PW35/B in reference to disclosure
statement recorded by first IO SI Rajesh made by accused no. 1 Gautam
Jain who was arrested on 23.09.2013. It is admitted as correct by PW-46
that the name of accused Sandeep is not mentioned in the said disclosure
statement. The DD No. 2 dated 24.09.2013 which is part of Ex.PW37/DA
and separately marked as Mark Q does not mention name of accused no.
4 Sandeep as accused which is admitted by PW-46 at page 3 of his same
cross-examination. It is submitted by the ld. Counsel for accused no. 4
Sandeep that the public person were not joined by the IO during arrest
and search of accused Sandeep. PW-3 in cross-examination dated
23.02.2015 at page 2 has deposed that some public person of
neighbourhood had gathered at the time of apprehension of accused no. 4
Sandeep when accused no. 4 was getting down from the shop after
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closing it. The disclosure statement of accused no. 1 Gautam Jain at page
1669 of case file is referred which is Ex.PW35/B.
108. Ex.PW48/DX5 which also contains Mark Q is dated
24.09.2013. It is register no. II the station daily diary at serial no. 2 it
records name of IO Insp. Paramjeet Singh. In the substance of report it
does not mention name of accused Sandeep @ Sunny till 1:00 PM in the
night. It is submitted by the ld. Counsel for accused no. 4 Sandeep that
till that time accused no. 4 was not arrested by the police. It is pointed out
that to the contrary the arrest memo, personal search memo and
disclosure statement of accused no. 4 were prepared on 23.09.2013. It is
argued that arrest of accused on 23.09.2013 is illegal or that no such
arrest was made of accused no. 4 on 23.09.2013 and therefore the alleged
recovery shown to be made from accused no. 4 Sandeep is illegal
recovery which does not stand and cannot be relied upon. It is argued that
prosecution has prepared a false case of recovery against the accused no.
4. PW-46 in his cross-examination dated 25.03.2022 at page 2 has
deposed as correct that arrest memo of accused no. 4 Sandeep Ex.PW3/C
mentions his arrest at 5:45 PM on 23.09.2013 in the Operation Cell,
Maurice Nagar, Delhi. However as per Ex.PW48/DX5(page 1521 of case
file) the accused no. 4 was not arrested till 1:00 PM on 24.09.2013.
PW-37 SI Rajesh Kumar in his cross-examination dated 06.07.2017 at
page 2 when confronted with DD No. 2A dated 24.09.2013 in
Ex.PW48/DX5 has admitted that it mentions his name. However he does
not remember that how many accused person were with them at that time
and he cannot tell if accused no. 4 Sandeep was arrested by Insp.
Parmajeet Singh at that time or not. It is deposed that probably 4 accused
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persons were with them. According to ld. Counsel for accused Sandeep
the arrest memo Ex.PW3/C is manipulated to show simultaneous
preparation and this document also does not bear signature of PW-46
ACP Naresh Kumar. Though at that time ACP Naresh Kumar was part of
the investigating team. PW-46 in cross-examination dated 25.03.2022 at
page 7 has deposed that after apprehension of accused no. 3 Mukesh and
accused no. 4 Sandeep they returned to Operation Cell, Maurice Nagar at
about 4:45/5 PM. It is submitted that as per Ex.PW3/C accused no. 4
Sandeep was arrested at 5:40 PM.
109. Had the accused no. 4 Sandeep was arrested on 23.09.2013
then there was no reason with the IO not to record the same in
Ex.PW48/DX5. DD no. 2A dated 24.09.2013 part of Ex.PW37/DA =
Mark Q does not record name of accused no. 4. The above circumstance
creates doubt about the time and date of arrest of accused no. 4 by
24.09.2013. Hence there is merit in the submission of ld. Counsel in the
infirmities pointed out in search and seizure made from accused no. 4 or
pointing out of shop of Krishna Communication by accused no. 4. The
seizure of bowl and strip of tablets from the shop of Sunny Medicos has
become doubtful in absence of joining of public witness.
110. PW-47 Ms. Poonam Sharma from FSL at page 2 has deposed
that the DNA profiles could not be generated due to degradation of
exhibits and due to presence of inhibitors.
111. The PW-28 at page 4 of his examination dated 29.03.2016 has
deposed that the blood gauze piece was sent to FSL on 16.12.2013 which
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is after about 03 months. It is argued on behalf of accused no. 4 that by
such late sending of the blood the sample would have been spoiled and
there is no explanation by the prosecution for causing such delay.
112. Merit is found in the above submission in view of citation
titled Ravi Kumar Sonu and Ors. Vs. State (Delhi) 2013(2) JCC 1394
from Hon’ble High Court of Delhi wherein at para no. 35 it is laid down
that when the exhibits have been sent to the FSL after almost a month of
incident in absence of any explanation in delay in sending the exhibits or
the reason why no steps were taken then in case of circumstantial
evidence the lacunae left by the investigating agency must necessarily
operate to the benefit of the accused. In the present case the sample was
sent after about period of more than two and a half months and there is
no explanation for sending the samples with such delay to FSL to which
accused is held entitled to benefit of doubt as to correct seizure of sample
and sampling. The relevant para is reproduced hereasunder:
35. The crucial question which arises in the instant case therefore
is whether there is a possibility of any person other than the
accused persons being the author of the crime in the facts and
circumstances of the case. It cannot be lost sight of that the
deceased was a TSR driver who drove TSR during the night shift.
It stands to reason that many a person boarded his TSR at different
hours of the night. If the testimony of the prosecution witnesses is
to be believed, he (the deceased) invariably reached his house in
the early hours of the morning. Thus, even assuming that PW9
Azad had seen the accused persons boarding his TSR at 7.30 p.m.,
it cannot be said with any degree of certainty that they were the
last persons to see the deceased alive and the deceased met with his
end at their hands. The possibility cannot be ruled out that in the
course of the night other persons would have boarded the TSR of
the deceased. No enmity has been ascribed to the accused persons
as the motive for the crime. In fact, the deceased was not known to
the accused at all or even to PW9 Azad Singh, who admittedly was
unable to even name the accused. The prosecution€s case is that it
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was with the intent of robbery that the accused persons had
boarded the TSR of the deceased but this, as noted above, does not
stand the test of scrutiny as the prosecution witnesses practically in
one voice have stated that the TSR was seen by them at the Police
Station much prior to the arrest of the accused persons.
113. As per deposition PW-18 Ct. Mani Ram the key of the shop
Sunny Medicos was brought by accused Sandeep which were hanging on
the nail on the wall and the keys were brought on 26.09.2013. The keys
were deposited in Malkhana on 26.09.2013. PW-33 to the contrary has
deposed that the accused no. 4 was arrested on 23.09.2013 at about 5 PM.
However this fact of arrest is not recorded in Ex.PW48/DX5 dated
24.09.2013 and at about 1 AM on 24.09.2013 arrest only of accused no.
1, 2 and 3 is shown under the heading substance of report and arrest of
accused no. 4 is not shown. It shows that by this time accused no. 4 was
not arrested by the police whereas PW-33 has deposed that accused no. 4
was arrested on 23.09.2013. PW-33 is not aware about make of mobile
phone or its recovery though he was part of investigating team. The
seizure memo of keys was prepared at Sunny Medicos on 26.09.2013 by
PW-48 whereas as per deposition of PW-18 such keys were seized from
the house of accused no. 4. It creates doubt that how the keys were seized
by the police and how search and seizure of the shop of Sunny Medicos
was conducted by the police. The seizure has to be exactly prepared at
the place where the search is conducted and it had not to be prepared at a
different place. However in case of large amount of goods short notes can
be prepared on the basis of which the proper memo can be prepared at the
later stage which is not the case here in the present case. When the
personal search memo of accused no. 4 bears signature of accused no. 3
and not of accused no. 4 shows on the face of it that the investigation
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process was not followed carefully and it creates doubt in the manner
investigation was conducted. Hence the search of Sunny Medicos, the
place of arrest of accused no. 4, the seizure of keys of Sunny Medicos
and a recovery from the shop of Sunny Medicos becomes doubtful. As
per deposition of PW-35 IO had already seized the keys of Sunny
Medicos on 23.09.2013. Hence there are numerous contradiction in the
prosecution witness in the manner accused no. 4 was arrested and the
incriminating articles were seized from him. The above statement of
witness though contradictory is bound on the prosecution in view of
citation titled Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi) AIR
2005 SC 2804 at relevant para no. 34, 35 and 36 wherein it is laid down
that when the witness did not support the case of the prosecution who
was not declared hostile then it is open to the defence to rely on such
evidence and it was binding on the prosecution when it supports the
defence. The relevant para is reproduced hereasunder:
34. The learned counsel for the appellant also urged that it was the
case of the prosecution that the police had requisitioned a Maruti
car from Ved Prakash Goel. Ved Prakash Goel had been examined
as a prosecution witness in this case as PW1. He, however, did not
support the prosecution. The prosecution never declared PW1
“hostile”. His evidence did not support the prosecution. Instead, it
supported the defence. The accused hence can rely on that
evidence.
35. A similar question came up for consideration before this Court
in Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549. In that
case, the evidence of the Doctor who was examined as a
prosecution witness showed that the deceased was being told by
one K that she should implicate the accused or else she might have
to face prosecution. The Doctor was not declared “hostile”. The
High Court, however, convicted the accused. This Court held that it
was open to the defence to rely on the evidence of the Doctor
and it was binding on the prosecution.
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36. In the present case, evidence of PW1 Ved Prakash Goel
destroyed the genesis of the prosecution that he had given his
Maruti car to police in which police had gone to Bahai Temple and
apprehended the accused. When Goel did not support that case,
accused can rely on that evidence.
4. RECOVERY OF SLIPPER
114. The prosecution has claimed recovery of slipper from accused
no. 2 and accused no. 3. The seizure memo of slipper is Ex.PW3/H dated
25.09.2013 at page no. 1741 of the case file. PW-3 Sh. Kishan Lal in his
examination-in-chief dated 11.12.2014 at page 3 and 4 has deposed that
on 25.09.2013 when he again joined the investigation then Insp. Naresh
Kumar with other police staff reached at drain near Nanglipuna with
accused no. 1 and accused no. 4 where one slipper of grey colour of his
son was recovered from the bushes near drain at the instance of accused
person. Another slipper was not found. It is noted that the place from
where the slipper was found was a public place and the same witness has
already visited there on 24.09.2013. In cross-examination dated
23.05.2015 at page 2 (page no. 747 of case file) it is deposed by PW-3
that he had not stated before the police about the description of the
slipper which was worn by his son. It is admitted as correct that the
slipper Ex.P1 is easily available in the market and there was specific
mark of identification of the slipper. It is admitted as correct that the
disclosure statement of accused no. 2 and 3 does not bear his signature.
The slipper of right foot of grey colour is Ex.P1 on record. The slipper
was sealed with the seal of ‘PS’. However it is not stated in Ex.PW3/H
that after sealing to whom the seal was handed over. PW-29 HC Chander
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Pal in his examination-in-chief dated 29.03.2016 at page 1 has deposed
that on 25.09.2013 he alongwith IO, Ct. Devender, Ct. Krishan, Ct.
Jagdish, all three accused person and complainant had left the PS in
vehicle for Nanglipuna near Ganda Nala and at the instance of accused
no. 2 Sandeep one slipper of child was recovered. At page 2 it is admitted
by PW-29 as correct that in sezure memo Ex.PW3/H the fact regarding
handing over the seal to PW-35 is not mentioned. No handing over memo
was prepared. No photograph of place of recovery of slipper was taken.
At page no. 3 in cross-examination it is deposed that the site plan of place
of recovery was also not prepared. The complainant Kishan Lal had not
told the description, including make, colour and size of slipper of the
child in his presence. The slipper was old one. He cannot tell the size of
slipper but it was small size. It is admitted as correct that it was a busy
road. However PW-29 cannot comment whether such type of slippers are
easily available in the market. It is pointed out by ld. counsel for accused
that no TIP of slipper was conducted. It is noted that it was incumbent on
the investigating agency to record the details of possession of the
deceased Master Jatin Dhingra and after that if recovery was made on the
basis of such details then TIP was necessary for its correct identification.
Without TIP of such commonly available article in the market the same
cannot be fastened with the facts of the present case or with the accused.
The same cannot be recovery of incriminating article under Section 27 of
Evidence Act, 1872. PW-48 in cross-examination dated 13.01.2023 (pre
lunch) at page 5 (page no. 1359 of case file) has deposed that in
pursuance of disclosure statement of accused they alongwith accused no.
1, 2 and 4 went to Nanglipuna drain at the same place where dead body
was recovered. The complainant was accompanying them. While
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searching in the bushes at the instance of accused no. 2 one grey colour
hawai slipper was found and it was identified by PW-3 that it belongs to
his son. No site plan was prepared of the spot nor any photograph was
taken. PW-48 in cross-examination dated 31.05.2024 at page 4 has
deposed that he does not remember whether Kishan Lal had informed
him about the make, colour, size or any specific mark on the slipper worn
by his son Master Jatin Dhingra. In the supplementary statement of PW-3
dated 24.09.2013 he did not state about any make, colour, size or any
specific mark of slipper worn by his son Master Jatin Dhingra. Ld.
Counsel for accused has relied on citation titled Ravi Shankar Tandon Vs.
State of Chhattisgarh 2024 (SC) SCR 558 at para no. 10, 11, 12, 13, 14,
21 and 22. The relevant para of which is reproduced hereasunder:
10. It is settled law that suspicion, however strong it may be,
cannot take the place of proof beyond reasonable doubt. An
accused cannot be convicted on the ground of suspicion, no matter
how strong it is. An accused is presumed to be innocent unless
proved guilty beyond a reasonable doubt.
11. In the light of these guiding principles, we will have to
examine the present case.
12. The prosecution case basically relies on the circumstance of the
memorandum of the accused under Section 27 of the Indian
Evidence Act, 1872 (for short “Evidence Act“) and the subsequent
recovery of the dead body from the pond at Bhatgaon. The learned
Judges of the High Court have relied on the judgment of this Court
in the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan
Guru2. The High Court has relied on the following observations of
the said judgment:
“121. The first requisite condition for utilising Section 27 in
support of the prosecution case is that the investigating police
officer should depose that he discovered a fact in consequence of
the information received from an accused person in police custody.
Thus, there must be a discovery of fact not within the knowledge
of police officer as a consequence of information received. OfSC No. 27881/2016
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course, it is axiomatic that the information or disclosure should be
free from any element of compulsion. The next component of
Section 27 relates to the nature and extent of information that can
be proved. It is only so much of the information as relates
distinctly to the fact thereby discovered that can be proved and
nothing more. It is explicitly clarified in the section that there is no
taboo against receiving such information in evidence merely
because it amounts to a confession. At the same time, the last
clause makes it clear that it is not the confessional part that is
admissible but it is only such information or part of it, which
relates distinctly to the fact discovered by means of the information
furnished. Thus, the information conveyed in the statement to the
police ought to be dissected if necessary so as to admit only the
information of the nature mentioned in the section. The rationale
behind this provision is that, if a fact is actually discovered in
consequence of the information supplied, it affords some guarantee
that the information is true and can therefore be safely allowed to
be admitted in evidence as an incriminating factor against the
accused. As pointed out by the Privy Council in Kottaya case [AIR
1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] : (AIR p. 70, para 10)“clearly the extent of the information admissible must depend on
the exact nature of the fact discovered” and the information must
distinctly relate to that fact.
Elucidating the scope of this section, the Privy Council speaking
through Sir John Beaumont said: (AIR p. 70, para 10)“Normally the section is brought into operation when a person in
police custody produces from some place of concealment some
object, such as a dead body, a weapon, or ornaments, said to be
connected with the crime of which the informant is
accused.”(emphasis supplied)We have emphasised the word “normally” because the illustrations
given by the learned Judge are not exhaustive. The next point to be
noted is that the Privy Council rejected the argument of the counsel
appearing for the Crown that the fact discovered is the physical
object produced and that any and every information which relates
distinctly to that object can be proved. Upon this view, the
information given by a person that the weapon produced is the one
used by him in the commission of the murder will be admissible in
its entirety. Such contention of the Crown’s counsel was
emphatically rejected with the following words:(AIR p. 70, para
10)
“If this be the effect of Section 27, little substance would remain in
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the ban imposed by the two preceding sections on confessions
made to the police, or by persons in police custody. That ban was
presumably inspired by the fear of the legislature that a person
under police influence might be induced to confess by the exercise
of undue pressure. But if all that is required to lift the ban be the
inclusion in the confession of information relating to an object
subsequently produced, it seems reasonable to suppose that the
persuasive powers of the police will prove equal to the occasion,
and that in practice the ban will lose its effect.”
Then, Their Lordships proceeded to give a lucid exposition of the
expression “fact discovered” in the following passage, which is
quoted time and again by this Court: (AIR p. 70, para 10) “In Their
Lordships’ view it is fallacious to treat the ‘fact discovered’ within
the section as equivalent to the object produced; the fact
discovered embraces the place from which the object is produced
and the knowledge of the accused as to this, and the information
given must relate distinctly to this fact. Information as to past user,
or the past history, of the object produced is not related to its
discovery in the setting in which it is discovered. Information
supplied by a person in custody that ‘I will produce a knife
concealed in the roof of my house’ does not lead to the discovery
of a knife; knives were discovered many years ago. It leads to the
discovery of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to have been
used in the commission of the offence, the fact discovered is very
relevant. But if to the statement the words be added ‘with which I
stabbed A’ these words are inadmissible since they do not relate to
the discovery of the knife in the house of the informant.”
(emphasis supplied)
128. So also in Udai Bhan v. State of U.P. [1962 Supp (2) SCR 830
: AIR 1962 SC 1116 : (1962) 2 Cri LJ 251] J.L. Kapur, J. after
referring to Kottaya case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA
65] stated the legal position as follows: (SCR p. 837) “A discovery
of a fact includes the object found, the place from which it is
produced and the knowledge of the accused as to its existence.”
The above statement of law does not run counter to the contention
of Mr. Ram Jethmalani, that the factum of discovery combines
both the physical object as well as the mental consciousness of the
informant accused in relation thereto. However, what would be the
position if the physical object was not recovered at the instance of
the accused was not discussed in any of these cases.”
13. As such, for bringing the case under Section 27 of the Evidence
Act, it will be necessary for the prosecution to establish that, based
on the information given by the accused while in police custody, it
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had led to the discovery of the fact, which was distinctly within the
knowledge of the maker of the said statement. It is only so much of
the information as relates distinctly to the fact thereby discovered
would be admissible. It has been held that the rationale behind this
provision is that, if a fact is actually discovered in consequence of
the information supplied, it affords some guarantee that the
information is true and it can therefore be safely allowed to be
admitted in evidence as an incriminating factor against the
accused.
14. We will have to therefore examine as to whether the
prosecution has proved beyond reasonable doubt that the recovery
of the dead body was on the basis of the information given by the
accused persons in the statement recorded under Section 27 of the
Evidence Act. The prosecution will have to establish that, before
the information given by the accused persons on the basis of which
the dead body was recovered, nobody had the knowledge about the
existence of the dead body at the place from where it was
recovered.
21. A perusal of the evidence of Narendra Kumar (PW-2) read with
that of Ramkumar (PW-5) would clearly reveal that the police as
well as these witnesses knew about the death of Dharmendra
Satnami occurring and the dead body being found at Bhatgaon
prior to the statements of the accused persons being recorded under
Section 27 of the Evidence Act. All the statements are recorded
after 10:00 am whereas Ramkumar (PW-2) stated that at around
08:00 am, police informed him about the accused persons killing
the deceased and thereafter they going to Bhatgaon. Ramkumar
(PW-5) also admitted that he arrived at village Kunda and on his
arrival, he was informed by his brother-in-law and nephew about
the murder which was done by the accused persons.
22. We therefore find that the prosecution has utterly failed to
prove that the discovery of the dead body of the deceased from the
pond at Bhatgaon was only on the basis of the disclosure statement
made by the accused persons under Section 27 of the Evidence Act
and that nobody knew about the same before that. It is further to be
noted that Ajab Singh (PW-18) has clearly admitted that he had
signed the papers without reading them and that too on the
instructions of the police.
115. The recovery of slipper on joint pointing out memo of accused
no. 2 and 3 in itself is inadmissible under Section 27 of Indian Evidence
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Act, 1872 for the reason that the joint pointing out memo is not
admissible under law and for another reason that the panchnama has not
been prepared in accordance with settled law discussed in this judgment.
The PW-3 had not stated before hand to the police about the description
of slippers worn by the deceased. It was incumbent on the part of
prosecution that such information must have been received before hand
so that the TIP of the article could be conducted through PW-3 which is
not done in the present case. It is admitted by PW-3 as correct that slipper
of right feet Ex.P1 is easily available in the market and there was no
specific mark of identification on the slipper to be identified with the
deceased. PW-3 could not tell the size of the slipper. The place where the
slipper was recovered is a busy road. The slipper is therefore commonly
available article. The slipper was recovered at the same place where the
dead body was recovered. No site plan of recovery was prepared nor any
photograph was taken. Hence the recovery was from open public place
which is open to all and visible to all and no specific exclusive
knowledge could be imparted to the accused to the recovery of such
slipper. The body was recovered on 23.09.2013 whereas the slipper was
recovered on 25.09.2013. Hence the recovery of above slipper cannot be
imputed to the special knowledge of the accused person under Section 27
of Indian Evidence Act, 1872 and therefore it is not seen as incriminating
circumstance against the accused person.
5. RANSOM CALL
116. The CDR of mobile no. 8744806631 allegedly used by the
accused person for making ransom call is brought on record by PW-41
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for the period from 18.09.2013 to 22.09.2013 and the same is
Ex.PW41/A. It is deposed that the same is handed over by IO to PW-41.
The exhibiting of documents is objected that the same is fabricated and
not proved as per law and nor it was authenticated as per law. It is
submitted that the authorized person has not certified the said document.
However it is seen that the said document is duly stamped and attested
and no question regarding this is shown to have been asked. There does
not appear any reason to see that the document is fabricated. Hence the
above objection is rejected except the fact that this document has to be
proved as per Evidence Act, 1872. The certificate under Section 65B in
this respect is not filed. It is not proved by PW-41 that he had taken print
out of this document. Other than this it is pointed out by the ld. Counsel
for the accused that there was no ransom call at 6 PM in the above
exhibit. All calls are shown to have been made between 1:33 PM to 5:44
PM by this mobile number and the total calls made are 08 in number
having the same IMEI number. Ld. Counsel for the accused has referred
to Ex.PW3/B at page 1563 of case file which is DD No. 30A dated
21.09.2013. In the first two lines it is mentioned that complainant came
to PS at 6:35 PM and lodged the missing complaint of his son. The PW-3
in cross-examination dated 23.02.2015 has deposed that he alongwith his
daughter and daughter-in-law had gone in search of deceased in the
colony before they went to PS at 6:35 PM. In the same examination-in-
chief of the page PW-3 has deposed that he and his wife had gone to PS
Burari to lodged the missing report. It is deposed in examination-in-chief
dated 22.05.2015 it is deposed that till night the PW-3 alongwith his
wife/PW-6 had remained at PS on 21.09.2013. It is deposed by PW-3 on
second page of cross-examination dated 22.05.2015 as correct that till
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6:35 PM on 21.09.2013 they had not received any ransom call. Hence it
is argued on behalf of accused no. 2 that when the wife of PW-3 had
remained at PS from 6:35 PM till night and before that no ransom call
was received which means there was no ransom call during the entire
duration from the accused person. It has come in evidence that PW-3 and
PW-6 had went to PS to lodged the complaint which is DD No.
30A/Ex.PW3/B. Other than this it is submitted that the complaint
Ex.PW3/B and the FIR does not mention anywhere that any ransom call
was received by that time. It is argued that by not mentioning this fact in
the complaint Ex.PW3/B and FIR Ex.PW3/A which is registered on the
basis of this complaint shows that atleast till 6:35 PM there was no
ransom call was received. The PW-6 in cross-examination dated
17.07.2015 at page 3 has deposed that her first statement was recorded at
PS Burari on 21.09.2013 between 6:30 PM to 6:45 PM in the evening.
The statement of daughter-in-law of sister of PW-6 namely Ms. Simran
was also recorded which means it was recorded between 6:30 PM to 6:45
PM. In further cross-examination PW-6 has controverted her husband
PW-3 that she did not accompany her husband when he went to lodge
missing report at police station. Whereas as per above deposition PW-3
and PW-6 were present at PS after 6:30 PM together at the same time. It
is deposed that Ms. Simran had gone alongwith her husband. At page 2 of
examination-in-chief of PW-6 dated 17.07.2015 it is deposed that she had
informed her husband regarding receipt of ransom call when her husband
had returned from PS. However PW-6 has deposed in first page of her
examination-in-chief that at about 5:15 PM that she had received a call
on her mobile no. 9718703685 for ransom and call was received from the
mobile no. 8744806631. It is argued that the PW-3 and PW-6 had
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remained at PS all night and when the ransom call was not received till
6:30 PM and after that PW-3 and PW-6 had remained at the PS then no
such ransom call was received both PW-3 and PW-6 before 6:30 PM. It is
argued that hence Ex.PW41/A and the ransom call are not proved on
record. It is submitted that in exhibit Ex.PW41/A it does not record that
who is owner of mobile number of the caller. The relevant para no. 60-61
of case titled Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR
Online (2018) Delhi 145 are reproduced hereasunder:
60. The fourth factor that makes the prosecution case improbable is
the statement of PW1 himself who states in his cross-examination
that “I did not receive any ransom call after 6.00 am on 31 st
December, 2010, after the discovery of the dead body.” Although
this witness was recalled by the prosecution more than a year
thereafter to clarify that he had made an error about the date of
discovery of the dead body by stating that it was in the early hours
of 31st December, 2010 whereas it was in the early hours of 1st
January, 2011, there was no clarification by this witness of the
above statement that he did not receive any ransom calls after 6 am
on 31st December, 2010.
61. This statement therefore falsified the document Ex.PW11/D
which shows seven ransom calls having been made between 1.32
pm and 6.13 pm on 31st December, 2010. All the above factors
make it extremely doubtful that the prosecution was able to prove
that it was A2 who made the above seven ransom calls to PW1 on
31st December, 2010. The CAF of A-2 shows that the SIM 2208
was activated on 1st November 2010 itself. This further
complicated the issue as regards the CDR of the said phone and its
linking to the ransom calls made on 31st December 2010.
117. There is merit in the above submission of ld. Counsel for
accused. As per deposition of PW-3 the ransom call was not received at
6:35 PM on 21.09.2013 and when PW-3 and his wife PW-6 had remained
at PS after 6:35 PM till night then the prosecution has failed to prove that
such ransom call was received by PW-3 or PW-6 after or before 6:35 PM.
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Further had the call has been received before 6:35 PM then this detail
must have been mentioned in FIR/Ex.PW3/A or the complaint
Ex.PW3/B. In absence of same it cannot be said that by such time ransom
call was received by PW-3 or PW-6 or by Ms. Simran. The ownership of
mobile phone on which ransom call was received is also not proved on
record and therefore doubt has arisen in the case of the prosecution that
the ransom calls were received by PW-3 or PW-6 as alleged through
mobile phone call.
118. It is argued by ld. Counsel for accused no. 2 that CDR of
ransom call when not produced in evidence has its consequences as laid
down in citation titled Manish Sharma @ Pappan case (supra) at para no.
47 to 59. PW-37 in cross-examination dated 05.07.2017 at page 2 has
deposed that he did not collect any document indicating authorisation or
agency in SIM card sale from Shyam Sunder @ Sunny who was
employee of M/s. Dimple Telecom. Mr. Harish was owner of the shop
and he was doing only mobile repairing job. PW-37 does not remember
at page 3 if he had obtained CDR or CAF of the relevant period in
respect of phone number 9718703685. It is further deposed that he did
not seize mobile phone instrument on which ransom call was received.
He does not remember that who was the service provider of the phone
number on which the ransom call was received nor it is disclosed that
whether it was pre-paid or post-paid mobile phone connection. He cannot
tell the name of subscriber of phone number on which the ransom call
was received. PW-48 at page 5 of cross-examination dated 29.05.2024
has deposed as correct that Insp. Naresh Kumar did not inform him that
anyone had discussed with him about voice recording at the time of
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activation of mobile phone. It is deposed by PW-37 in cross-examination
dated 05.07.2017 at page 2 that he had not collected any document
indicating authorisation or agency in SIM card sale from Shyam Sunder
@ Sunny who was employee in M/s. Dimple Telecom. He does not know
whether the name of the shop was M/s. Dimple Telecom. He does not
remember the name of proprietor or owner of M/s. Dimple Telecom.
Ex.PW7/1 is delivery challan/invoice from Idea Cellular Ltd. to Aditya
Enterprises regarding delivery of 1868 SIMs at page no. 1767 of case
file. The relevant para no. 47 to 59 are reproduced hereasunder:
47. It is strange that the Investigating Officer („IO) did not
consider it necessary to collect the CDRs of the phone of PW-1 i.e.
4771 for the entire period till 31st December, 2010 in order to
verify if indeed it received ransom calls on the aforementioned
three occasions, as claimed by PW-1. The only time the police is
supposed to have done something in this regard was on 30th
December, 2010 when the police started intercepting the calls
received on the phone of PW-1.
48. It is claimed that “the parallel line of the complainants phone
was taken on the mobile phone number 9716389553 (hereafter
„9533) of PW26 SI Amarjit Singh.” Six ransom calls were received
on the mobile phone 4771 on 31st December, 2010 and are sought
to be shown in Ex.PW11/D. All these seven calls are shown to
have been made from the mobile phone 2208. The timings of these
seven calls were 1.32 pm, 1.33pm, 1.44 pm, 3.14 pm, 4.52 pm,
5.32 pm and 6.13 pm.
49. This appears to be the truncated CDRs of one day of the mobile
number 2208. Going by this CDR, it would appear that on the
entire day i.e. 31 st December, 2010, from mobile number 2208
only six calls overall were made and all those six calls were made
only to mobile number 4771. This seems improbable. It was
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number 2208 had been used to make a ransom call on the mobile
number 4771 even prior to 31st December 2010.
50. Further, it was important for the prosecution to have picked up
the CDRs of 4771, again to cross verify if there were earlier
ransom calls made to 4771 from 2208. There is no valid
explanation given by the prosecution for its failure to carry out this
obvious step in order to verify that the ransom calls were in fact
made on the mobile bearing number 4771.
51. The explanation given by the prosecution is that from the CDR
for the mobile connection ending in 2208, it was seen that calls
were made to mobile number ending in 4771 on 31st December,
2010. That similar calls were made from the mobile phone number
6038 standing in the name of A2 on 9th December, 2010 might
show that the mobile phone of the father of A- 2 was in fact being
used by A-2. However, this does not show that it is A-2 who was
making even the earlier ransom calls to the number 4771. Instead
of this laborious way of establishing the link, the simpler way
would have been to get the CDRs of 4771 itself for the entire
month of December, 2010.
52. Therefore, contrary to what the trial Court appears to have
concluded, there is something to be said for the fact that the mobile
phone 2208 was in fact not allotted to either A-1 or A-2, but to one
Anjum Alam who was not even questioned by the police. How A-1
could have caught hold of the above SIM card from Anjum Alam
had to be explained by the prosecution.
53. The above question attains significance on account of two
important factors, which again have not been noticed by the trial
Court. PW-2 was put forth by the prosecution to prove that A-2 had
purchased a new SIM card of Vodafone from him. However, this
witness turned hostile. He simply stated that he did not remember
the SIM number or the date on which it was activated. In fact this
number 2208 was already activated on 11 th December, 2010 i.e.
prior to the calls made on 31 st December, 2010. Further, this
witness stated “I do not also remember that accused Manish had
come to my shop on 31st December, 2010 at around 11 am.” In hisSC No. 27881/2016
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further cross- examination on behalf of A-2, PW-2 stated that he
had no proof to show that he had sold the concerned SIM to A-2.
54. The mobile phone recovered from A-2 was not having any
IMEI number at all. This was plain from the recovery memo of the
said mobile phone. Therefore, by merely demonstrating from
Ex.PW11/D that the SIM card of number 2208 was used on a
mobile instrument having an IMEI number of 9790 did not reveal
that the said phone was used by A-2 to make any ransom call. The
important aspect of linking A-2 to the mobile phone 2208 was
overlooked by the trial Court.
55. The second difficulty, apart from PW-2 turning hostile, was the
fact of the date on which A-2 was actually arrested. According to
his father, who was examined as DW-1, A-2 was arrested on 30th
December, 2010 itself whereas according to PW-23 he was arrested
in the early hours of 1 st January, 2011. If indeed A-2 was already
arrested and was with the police on 31st December, 2010, then the
whole question of ransom calls having been made on 31st
December, 2010 gets falsified. However, the fact is that the mobile
phone was already available with A-2. If in custody, A-2 could
have been asked to make calls from the mobile phone 2208 or calls
were made from his phone on the phone of PW-1 i.e. 4771 at
regular intervals between 1 pm and 6 pm (as reflected in
Ex.PW11/D), then in the absence of the entire CDRs of number
4771 and 2208, this document becomes highly suspicious. It does
not eliminate the possibility of these calls having been made after
A-2 was taken into custody.
56. For the same reason, even the fact that the voice recording of
these seven ransom calls matched the specimen voice of A-2 also
breaks down. In this regard, it must be noticed that PW-26 claims
that he could get a parallel line to that of 4771 on his mobile
(Ex.PW26/E). How this could be technologically possible is not
sought to be explained.
57. Importantly, when he was cross-examined by counsel for A-1,
PW-26 stated “No other material except the ransom calls have been
recorded in this memory card.” This was unusual considering thatSC No. 27881/2016
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both PW-1 and for that matter, PW-26 would have received several
calls on 31st December, 2010. PW-26 added, “I do not have any
evidence to show that the memory card (Ex.P10) used exclusively
in my phone for recording of ransom calls.” This would imply that
when the memory card was sent for examination to FSL, other
calls were erased from it.
58. The FSL report has only confirmed the voice samples of these
seven ransom calls as matching the voice of A2. However, it was
confirmed by Dr. C.P. Singh (PW24), as stated in his report, that
there were no other calls on that memory card.
59. The above evidence does not lend any assurance to the Court
that in the above circumstances the mere fact that the ransom calls
made on 31 st December, 2010 were shown to match the voice of
A2 proves his connection with the crime and, therefore, his guilt
beyond reasonable doubt.
119. PW-37 does not remember that he had collected the CDR or
CAF of phone no. 9718703685. He does not remember the service
provider of the said phone on which ransom call was received. He is not
aware that whether the connection was pre-paid or post-paid connection
nor he can tell the subscriber of the phone. This is a material fact and it
was incumbent upon the prosecution to bring the best evidence to
corroborate the receipt of ransom call at the said mobile phone. It is also
important to note that correct custody of the mobile phone is also
required to be proved on record. When the mobile phone was not in the
name of PW-3 or PW-6 then how accused person will know that they
have to call at such mobile number. The prosecution has not proved that
in whose name this connection is. Had the custody was not proper then
no call was expected to be made to PW-3 or PW-6 but to the person in
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on record that the accused person has knowledge that this phone number
was available with PW-3 or PW-6. Hence there are missing link in the
chain of circumstantial evidence to connect the ransom call to the victim
with the above mobile number.
6. PURCHASE OF MOBILE PHONE BY ACCUSED FOR
COMMITTING RANSOM AND TIP PROCEEDINGS
120. It is argued on behalf of accused no. 4 that invoice no. 849
dated 16.09.2013 pertains to this case. The record shows that invoice no.
850 dated 11.09.2013 comes before invoice no. 849 and therefore it is
claimed that the correct selling of the alleged mobile phone is not proved
on record. It is argued that the invoice bills were prepared incorrectly at
the instance of IO. The said dates in invoice are admitted by PW-19 in
cross-examination dated 23.02.2016 at page 4. The invoice are
Ex.PW19/A on the record which are two bill books. It is deposed by
PW-19 at page 4 that SHO Parminder Singh has recorded his statement at
PS Burari after 2-3 days of arrival of police at his shop. Whereas, at page
5 it is deposed by PW-19 that police had recorded his statement on the
date of their visit at his shop and his statement was recorded at PS.
121. PW-19 had accompanied the police and the accused at PS and
he had seen the accused person properly. It is argued on behalf of the
accused that when PW-19 had already seen the accused person then there
was no use of TIP proceeding conducted on behalf of PW-19.
122. Ld. Counsel for accused has submitted that accused no. 4 was
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not produced in muffled face. In cross-examination dated 21.03.2023
PW-48 at page no. 3 has admitted as correct that name of
witness/witnesses is not mentioned in the application for conducting TIP
dated 27.09.2013 of the accused no. 4 Sandeep and accused no. 2
Sandeep which is Ex.PW48/D2. It is submitted that since the name of the
witness is not mentioned in the TIP application the accused had no
knowledge that what is the name of witness who is going to conduct TIP
and therefore there was no discretion is available with the above accused
in refusal of TIP and therefore the TIP proceedings are invalid in absence
of such knowledge with the accused. PW-15 ld. MM had conducted TIP
on application Ex.PW15/A which was moved by IO for conducting TIP.
It is submitted by ld. Counsel for accused no. 4 that correct address of the
participants was not mentioned by the IO in the application with address
and occupation which is in violation of Part C-identification parades,
Chapter 11 Part C of Delhi High Court Rules and Orders.
122.1 It is submitted that on 24.09.2013 accused was not produced
in muffled face before the Court. When the accused was produced after
PC before the Court on 28.09.2013 then also accused was not produced
in muffled face. It is argued that the TIP proceedings at page no. 1485
records reason for refusal for conducting TIP for accused no. 2 that the
witness might have seen him in police station during his police custody.
The witness who had to identify the accused no. 2 is PW-19/Sh. Kishor
who was running mobile shop by the name Kishor Communication.
122.2 PW-48 in cross-examination dated 18.03.2023 at page no.
1387 of case file has deposed as correct that he has not mentioned in TIP
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application Ex.PW48/D1 that the accused person were produced in
muffled face. PW-19 at page 2 of his examination dated 23.02.2016 and
page no. 891 of case file has deposed that he had issued receipt of
purchase of mobile to the smaller boy whose name was Sandeep/accused
no. 4. It is deposed that after few days the police has brought both of
accused to his shop and he had identified them as the person who had
purchased the mobile phone from his shop and he had given the receipt
book to the police. It is argued that the accused were already shown to
PW-19 before conducting TIP and therefore no adverse inference could
be drawn against the accused for refusal of TIP and in any case such
identification cannot be relied upon. It is further deposed by PW-19 at
page 4 (895 of case file) in cross-examination that police did not call him
in the PS rather police had come to his shop with the accused. SHO
Parminder Singh had recorded his statement in PS Burari after 2-3 days
after arrival of police at his shop. At next page it is deposed that police
had recorded his statement on the date of visit at his shop and his
statement was recorded in the PS. He had accompanied the police and the
accused to the PS. He did not talk with the accused person but he had
seen them properly. He had gone to PS at 11 AM and returned at about 5
PM from the PS. It is argued on behalf of accused no. 2 that the witness
has remained with the accused in the vehicle and for about 6 hours. He
was there at police station where accused were in unmuffled face. PW-19
had sufficient time to see the accused person and the TIP thereafter does
not help the case of prosecution in any manner. It is argued that the
refusal was done by accused no. 3 on 25.09.2013 and by accused no. 2 on
28.09.2013. The TIP of accused no. 4 was conducted on 28.09.2013 and
witness had correctly identified the accused no. 4. It is argued that at page
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no. 901 of case file it is deposed by PW-19 on cross-examination by ld.
APP for the State that he had handed over the bill book to the police on
25.09.2013 when his statement was recorded. It is argued that on
25.09.2013 the statement of PW-19 was recorded and on the same date he
went to police station with the accused no. 2 and had sufficiently seen the
accused before conducting of TIP on 28.09.2013. It is deposed by PW-48
in examination-in-chief dated 13.01.2023 at page 4 (page 1375 of case
file) that on 25.09.2013 PW-19 Sh. Kishor Kumar owner of Kishor
Communication came to PS alongwith bill book containing bill of mobile
phone sold to accused no. 2 which was seized vide Ex.PW29/A and the
bill book is exhibit Ex.PW19/A carbon copy of bill no. 851 is
Ex.PW19/B. The seizure memo was signed by PW-19 at point C. It is
submitted that it was the same day when PW-19 had remained throughout
for 6 hrs. with the police and the accused. PW-48 in cross-examination
dated 23.03.2023 at page no. 1 (page no. 1399 of case file) has deposed
that the bill book of Kishor Communication was taken into possession
was taken by PW-48 on 24.09.2013 at PS Burari and PW-48 had went to
shop of Kishor Communication on 23.09.2013. Hence the PW-48 had
contradicted himself that on which date he had taken possession of bill
book. Other than this the seizure memo Ex.PW29/A dated 25.09.2013 (at
page no.1715 of case file) again varies with the date deposed by PW-19
and PW-48 and PW-48 has deposed on 23.03.2023 that bill book were
taken into possession by him on 24.09.2013.
123. PW-48 in his deposition dated 31.05.2024 at page 3 has
deposed as correct that in the carbon copy for application for PC remand
for 03 days vide Ex.PW48/D1 dated 24.09.2013 he has not mentioned
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that accused no. 1, 2 and 4 were produced in the Court in muffled face. It
is also admitted as correct that in the order of Ld. Area MM dated
24.09.2013 it is not mentioned that accused were produced in muffled
face. It is admitted as correct that when PW-48 called PW-19 Kishor
Kumar in the police station then at that time all the accused persons were
on police remand. It is deposed that PW-48 wanted that PW-19 identify
accused no. 2 and accused no. 4.
124. It is argued on behalf of accused no. 3 that PW-12 in his
cross-examination dated 26.09.2015 at page 2 (page no. 831 of case file)
has deposed as correct that on 27.09.2013 on being called by police he
had gone to police station where he had identified the accused Mukesh
Kumar to whom he had sold the abovesaid SIM card in the name of
Manoj Kumar. The TIP proceeding of accused no. 3 Mukesh are at page
no. 1913 of case file dated 25.09.2013 and the reason for refusal of TIP
by the accused are that his photographs were taken by the police at the
police station which may have been shown to the witness.
125. It is submitted by ld. Counsel for accused no. 2 that bill no.
851 dated 16.09.2013 Ex.PW19/B mentions name of Sandeep but it does
not mention name of father and therefore it has become doubtful that
about which Sandeep the bill is talking about. The bill no. 852 is in the
name of Kishan Lal who is complainant/PW-3 himself. It is admitted as
correct by PW-19 in cross-examination as correct that bill no. 803 is
blank in the bill book. It is admitted as correct that on 16.09.2013 only
one bill was issued. He did not take signature of customers on bill book.
The bills issued through bill book Ex. PW19/A are not shown in ledger
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book/cash book for the reason that items were received from Gaffar
market and only item having TIN number are shown in ledger book. Bill
no. 834 to 848 were issued from another shop. It is admitted as correct
that bill no. 849 is dated 16.09.2013 and bill no. 850 is dated 11.09.2013.
It is argued on behalf of accused that the bill no. 850 though issued after
bill no. 849 but it was issued earlier in date and therefore the bill book
cannot be relied. PW-19 at page no. 4 of cross-examination has deposed
that he does not know the person Anil Kumar who has purchased mobile
phone on 16.09.2013. It is denied by PW-48 in cross-examination dated
23.03.2023 that in bill book Ex.PW19/A he has inserted date 16.09.2013
and name of accused no. 2 in bill no. 851 Ex.PW19/B. This has
contradicted the deposition of PW-19 who had claimed at page no. 3 of
his cross-examination that only one bill was issued on 16.09.2013
whereas at page no. 4 another bill was admitted in the name of Sh.
Arvind Kumar dated 16.09.2013 and there is bill also in the name of
accused no. 2 dated 16.09.2013 which is bill no. 851 Ex.PW19/B. Hence
issuance of above bills on any particular date and to particular person has
become doubtful. Bill no. 852 dated 16.09.2013 is issued in the name of
Kishan Lal/PW-3. Bill no. 850 dated 16.09.2013 is in the name of one
Mr. Sunny which does not bear signature. It is admitted by PW-19 as
correct at page no. 6 of his cross-examination that name, parentage and
address of accused no. 2 Sandeep are not mentioned on bill Ex.PW19/B.
It is deposed further at page no. 7 that bill book had remained with him
upto 25.09.2013.
126. PW-48 in cross-examination dated 31.05.2024 at page 3 has
deposed that he cannot say whether the bill bearing serial no. 849 bears
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date 16.09.2013 and he cannot say whether bill 850 bears date
11.09.2013 in carbon copy of bill book Ex.PW19/A.
127. It is submitted by ld. Counsel for accused that in deposition
of PW-48 dated 21.03.2023 at page 3 the bill book Ex.PW19/A was
collected by IO from Kishor Communication on 25.09.2013. It is further
admitted as correct that bill no. 851 Ex.PW19/B is dated 16.09.2013. It is
admitted as correct that as per said bill book the date of bill no. 849 is
16.09.2013. At page no. 4 of same cross-examination it is deposed that it
is a matter of record that Ex.PW19/A the bill no. 850 is dated
11.09.2013.It is submitted that the bill no. 849 is later in date and the bill
no. 850 is prior in date of preparation and therefore correct preparation of
bill and bill book is doubtful in ordinary course as the preparation of bill
no. 849 and 850 have to be reverse in their date of preparation in ordinary
course. It is pointed out in deposition of PW-48 dated 21.03.2023 at page
3 that the bill book was collected on 25.09.2013 whereas at page 1 of
cross-examination dated 23.03.2023 it is deposed by PW-48 that the bill
book of Kishor Communication was taken into possession by him on
24.09.2013 at PS Burari.
128. The subsequent invoice no. 850 was prepared on prior date on
11.09.2013 and the impugned invoice no. 849 was prepared on
subsequent date on 16.09.2013. This creates doubt as to the correct
preparation of bill book by PW-19 and when the said mobile phone was
allegedly purchased by the accused person. Further the PW-19 has given
two statements that his statement was recorded by the police at his shop
and contradicted the same with his another deposition that SHO
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Parminder Singh had recorded his statement at PS Burari after 2-3 days
on arrival of police at his shop. Hence the date on which the statement
was given by PW-19 to the police is doubtful. Further, when PW-19 had
accompanied the police in the vehicle in which accused person were
already sitting and for about 06 hours PW-19 has seen the accused person
namely accused no. 2 Sandeep and accused no. 4 Sandeep @ Sunny.
Therefore the TIP proceedings subsequent to above fact does not bring
any incriminating circumstance against the above accused on record for
the reason that TIP proceedings itself is a weak kind of evidence and
when the accused are already seen by the witness then the TIP serve no
fruitful purpose. Even the name of the witness is not mentioned in the
TIP application by PW-48 and before exercising right of refusal the name
of witness is desirable to be intimated to the accused. Only after such
disclosure of name of witness to the accused he could have exercised the
discretion whether to further proceed with the TIP or not and on this
account also the TIP proceeding does not prove any incriminating
circumstance against the accused no. 4. PW-48 has admitted as correct in
not mentioning in TIP application that the accused person are produced in
muffled face. PW-19 has deposed that the two accused no. 2 and 4 were
produced by the police at his shop where he had identified them. Hence
no adverse inference could be drawn against accused no. 2 and 4 under
the TIP proceedings and the refusal of TIP by the accused no. 2 and 3
under such circumstance are validly sustained. PW-48 has contradicted
himself by deposing that PW-19 came to PS with bill book on 25.09.2013
Ex.PW19/A whereas in cross-examination it is deposed that this bill book
was taken in possession by him on 24.09.2013 at PS Burari. PW-48 has
admitted in evidence in his application for conducting TIP it is not
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written that accused were produced in muffled face and it is also
therefore not recorded in the order of Ld. Area MM. Ex.PW19/B
containing bill no. 851 dated 16.09.2013 does not mention name of father
of accused and it mentions name of accused Sandeep. Bill no. 803 is
blank page in bill book. The signature of customers were not taken on the
bill book. The bill no. 851 and bill no. 849 both were issued on
16.09.2013 whereas PW-19 has deposed that only one bill was issued on
16.09.2013 and a third bill was issued in the name of Sh. Arvind Kumar
on 16.09.2013. Further, the PW-19 has deposed that he does not know the
person Sh. Anil Kumar who had purchased mobile phone on 16.09.2013.
Hence there is no evidence with the prosecution to connect accused no. 2
and 4 in having purchased the said mobile phone from PW-19 as the
identity of such purchase by the accused person has remained in doubt
and it has also remain in doubt that there was correct preparation of bill
book in proper order by PW-19. Hence the prosecution has failed to
connect accused no. 2 and 4 with the purchase of mobile phone from
Kishor Communication/PW-19.
7. FORGING OF CAF APPLICATION
129. It is admitted as correct by PW-48 in cross-examination dated
29.05.2024 as correct that in the statement of Insp. Naresh Kumar
Ex.PW46/DA dated 24.09.2013 it is not written that after registration of
case one ransom call was received by parents of child Jatin Dhingra. Nor
it is written that he met parents of child as well as obtained mobile
number of caller or of the mother the child. It is submitted by the ld.
Counsel for accused no. 2 that IO was duty bound to collect all the above
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details including that of service provider in terms of Manish Sharma case
(supra).
130. It is argued on behalf of accused no. 3 by pointing out
deposition of PW-12 dated 26.09.2015 at page 2 where it is deposed as
correct that on 22.09.2013 one police official came to PW-12 Sh. Shyam
Sunder and CAF of the mobile number was shown to him to which
PW-12 had confirmed that he had sold the said SIM on the said CAF. At
page no. 1452 of the case file and page no. 5 of the chargesheet it is
recorded in the last para that on 23.09.2013 after receipt of CAF Manoj
Kumar was asked regarding it. It is submitted that this CAF was available
with the IO on 22.09.2013 which was not shown to Manoj Kumar on that
day who first went to PW-12 inspite of asking from Manoj though they
had already interrogated Manoj without CAF on 21.09.2013 to which
Manoj replied his unawareness about the said mobile number. It is
submitted that IO had to first go to Manoj rather than PW12 and it is
claimed that therefore the CAF is manipulated.
131. It has come in evidence of prosecution that the digital image
of documents was received by prosecution before hand and the hard copy
was not received. Therefore the investigating agency would have taken
out print out of digital documents. It is natural of the IO first to go to the
person in whose name the SIM connection was issued namely Sh. Manoj
Kumar and not to the seller of mobile phone/PW-12. When PW-2 Sh.
Manoj Kumar had declined the connection in his name then only the
investigating agency as to natural course has to go to the seller/PW-12 of
the SIM connection and thereafter to trace out the accused person. The
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documents were hence available with the IO before the arrest of accused
no. 1 or even disclosure of accused no. 1 and even accused no. 2. Hence
it cannot be said that the documents were recovered on disclosure of
accused no. 1 and 2.
132. Ex.PW5/A is CAF form at page no. 1599 of case file, the FSL
report on the same is Ex.PW44/A at page no. 1595 of case file. PW-44
Sh. Anurag Sharma, Asstt. Director from RFSL has deposed on
26.02.2020 on Ex.PW44/A. Ld. Counsel for the accused has referred to
Ex.PW5/A at Q2 and Q3 where the signature in the name of ‘Manoj’ are
put. It is argued that the signature are in Hindi language and the common
joining line is not originating just above the word ‘Manoj’. It is submitted
that PW-44 in cross-examination dated 07.04.2021 at page 3 on the
question that the head stroke of Q2 and Q3 at its origination are different
had answered that without laboratory examination of the signatures he
cannot examine these signatures at this stage. Ld. Counsel for accused
has referred to S11 and S20 at page no. 1621 to 1639 of the case file by
submitting that the manner of head stroke are different though the
PW-44 claims that they are similar but PW-44 cannot answer regarding
difference in origination of head strokes in Q2 and Q3. It is further
submitted on behalf of accused no. 2 that at page no.1597 of case file
which is Ex.PX1 which is voter ID card of Manoj Kumar bear signature
at point Q3. In the CAF at page no. 1599 bears signature of Manoj at
point Q1 and Q2. It is submitted that the letter ‘ म’ in Hindi is bigger than
the remaining letter ‘नोज’ in Hindi for the reason that head stroke is
touching the letter ‘म’ and it is not touching the letters ‘ नोज’. Hence it is
submitted that the first letter is bigger than the remaining two letters
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whereas at page no. 1601 to page no. 1639 the sample signature made by
accused no. 3 which are S1 to S10 which are Ex.PW48/K from page
1601 to page no. 1619 and by accused no. 2 which are S11 to S20 which
are Ex.PW48/L from page no. 1621 to page no. 1639 are different. It is
submitted that in case from S1 to S10 the head stroke is touching all the
letters and the first letter ‘ म’ is not bigger than the other two remaining
letters. Other than this in S11 to S20 the letter ‘ म’ does not bear head
stroke and only the remaining two letters ‘नोज’ used to largely bear head
stroke.
133. PW-44 in cross-examination dated 07.04.2021 at page no. 4
(page no. 1241 of case file) has deposed to the question that from which
alphabet the head stroke start from Mark S11 to S20 to which it is replied
that PW-44 cannot examine the specimen signature S11 to S20 at this
stage though he had examined all the documents in laboratory condition.
To the question that the worksheet of PW-44 with juxtapose chart are not
annexed with the report to which it is replied by PW-44 that it is correct
that he has not annexed it with the report. Hence it shows that the finding
in the report of PW-44 are based on worksheet and juxtapose chart which
are primary evidence and the same are not annexed with the report
Ex.PW44/A.
134. PW-2 Sh. Manoj in cross-examination dated 28.01.2015 at
page 2 (page no.697 of case file) has deposed that he used to make his
signatures only in English language. It is submitted that the signature of
Manoj/PW-2 are taken in Hindi language though he used to sign in
English language and therefore the signature in Hindi cannot be
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compared with the signature of Manoj/PW-2 in English language as there
could be no similarity and comparison in handwriting made by two
different language. PW-5 in cross-examination dated 21.05.2015 at page
3 (page no. 767 of case file) has deposed as correct that the pen used for
writing Manoj Kumar in English is the same pen which has been used in
writing ‘मनोज’ in Hindi language. The same is objected by the ld. APP
for the State that PW-5 Sh. Bijender Saini is not a expert witness who
was working with Aditya Enterprises the dealer of Idea Cellular
Company. There is merit in the objection raised by ld. APP for the State
as by naked eye PW-5 without any expertise cannot depose about the ink
used/pen used in making signature in Hindi or English language by
Manoj Kumar and therefore the objection raised by ld. APP for the State
is upheld. However it is further submitted by ld. Counsel for accused
no.2 that ink of the pen is same or that same pen is used then the story of
prosecution cannot be sustained that the accused has taken the form
somewhere and got it signed.
135. The argument of ld. Counsel for accused that the signature of
PW-2 Manoj Kumar who used to sign in English language could not be
obtained in Hindi language for the purpose of examination at FSL are
rejected in view of fact that when the signature in the CAF form
Ex.PW5/A was done in Hindi language then the signature of PW-2 had to
be obtained only in Hindi language and not in English language.
However the variations pointed out by the ld. Counsel for accused in the
head stroke which bears difference in Q2 and Q3 and S1 to S10
pertaining to accused no. 3 and S11 to S20 pertain to accused no. 2 has
merits in the argument. PW-2 has deposed that his signature were taken
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in Hindi language. PW-44 could not answer regarding such difference in
orgination of head stroke and he could not examine the specimen
signature at this stage. He also did not file the worksheet and juxtapose
chart which is primary evidence and on the basis of which this report was
prepared. Other than this it was laid down in case titled SPS Rathore Vs.
CBI that expert evidence as to handwriting is only opinion evidence and
it can never be conclusive. It has to be corroborated by clear direct all
circumstantial evidence. The sole evidence of handwriting expert is not
normally sufficient for definitive finding and therefore not conclusive
under Section 45 of Indian Evidence Act, 1872. In view of infirmities
pointed out above it cannot be said that accused no. 2 or accused no. 3
had written Q1 to Q3.
136. PW-14 in cross-examination dated 11.04.2022 Sh. Bhagwan
Singh, Div. Manager MTNL has deposed that he knew Manoj Kumar
personally and he used to call Manoj Kumar whenever there was
generator problem. Manoj Kumar used to sign in logbook verified by
junior telephone officer and thereafter PW-14 used to sign it. It is
admitted by him that photograph appearing in Ex.PW5/A which is CAF
form at point X and signature appearing at point Y is of Mr. Manoj
Kumar. Hence it is submitted that PW-14 acquainted with signature and
handwriting of Mr. Manoj Kumar and he has correctly identified his
signature in CAF form and such signatures are therefore not made by the
accused. Ex.PX1 which is voter ID card of Manoj Kumar at page no.
1597 of case file was attested on 16.01.2009 by Sub-Divisional officer
MTNL who is PW-14. Ld. Counsel for accused no. 2 has relied on
citation titled SPS Rathore Vs. CBI and Anr. AIR 2016 SC 4486 at
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relevant para no. 27 to 30 wherein it is laid down that expert evidence as
to handwriting is only opinion evidence and it can never be conclusive. It
has to be corroborated by clear direct or circumstantial evidence. The
sole evidence of handwriting expert not normally sufficient for definite
finding and therefore not conclusive under Section 45 of Indian Evidence
Act, 1872 which are reproduced hereasunder:
27. With regard to the contention of learned senior counsel for the
appellant-accused that the signature of Ms. Ruchika on the
Memorandum was forged though she signed the same in front of
Shri Anand Prakash, Shri S.C. Girhotra, Ms. Aradhana and Mrs.
Madhu Prakash and they have admitted the same, we are of the
opinion that expert evidence as to handwriting is only opinion
evidence and it can never be conclusive. Acting on the evidence of
any expert, it is usually to see if that evidence is corroborated
either by clear, direct or circumstantial evidence. The sole evidence
of a handwriting expert is not normally sufficient for recording a
definite finding about the writing being of a certain person or not.
A court is competent to compare the disputed writing of a person
with others which are admitted or proved to be his writings. It may
not be safe for a court to record a finding about a person’s writing
in a certain document merely on the basis of expert comparison,
but a court can itself compare the writings in order to appreciate
properly the other evidence produced before it in that regard. The
opinion of a handwriting expert is also relevant in view of Section
45 of the Evidence Act, but that too is not conclusive. It has also
been held by this Court in a catena of cases that the sole evidence
of a handwriting expert is not normally sufficient for recording a
definite finding about the writing being of a certain person or not.
It follows that it is not essential that the handwriting expert must be
examined in a case to prove or disprove the disputed writing. It is
opinion evidence and it can rarely, if ever, take the place of
substantive evidence. Before acting on such evidence, it is usual to
see if it is corroborated either by clear, direct evidence or by
circumstantial evidence.
28. In Mobarik Ali Ahmed vs. The State of Bombay AIR 1957 SC
857, this Court has held as under:-
“11…..Learned counsel objected to this approach on a question of
proof. We are, however, unable to see any objection. The proof of
the genuineness of a document is proof of the authorship of theSC No. 27881/2016
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document and is proof of a fact like that of any other fact. The
evidence relating thereto may be direct or circumstantial. It may
consist of direct evidence of a person who saw the document being
written or the signature being affixed. It may be proof of the
handwriting of the contents, or of the signature, by one of the
modes provided in Sections 45 and 47 of the Indian Evidence Act.
It may also be proved by internal evidence afforded by the
contents of the document. This last mode of proof by the contents
may be of considerable value where the disputed document
purports to be a link in a chain of correspondence, some links in
which are proved to the satisfaction of the court. In such a situation
the person who is the recipient of the document, be it either a letter
or a telegram, would be in a reasonably good position both with
reference to his prior knowledge of the writing or the signature of
the alleged sender limited though it may be, as also his knowledge
of the subject matter of the chain of correspondence, to speak to its
authorship. In an appropriate case the court may also be in a
position to judge whether the document constitutes a genuine link
in the chain of correspondence and thus to determine its
authorship. We are unable, therefore, to say that the approach
adopted by the courts below in arriving at the conclusion that the
letters are genuine is open to any serious legal objection. The
question, if any, can only be as to the adequacy of the material on
which the conclusion as to the genuineness of the letters is arrived
at. That however is a matter which we cannot permit to be
canvassed before us.
29. In Smt. Bhagwan Kaur vs. Shri Maharaj Krishan Sharma And
Others (1973) 4 SCC 46, this Court held as under:-
“26…..It is no doubt true that the prosecution led evidence of
handwriting expert to show the similarity of handwriting between
(PW 1/A) and other admitted writings of the deceased, but in this
respect, we are of the opinion that in view of the main essential
features of the case, not much value can be attached to the expert
evidence. The evidence of a handwriting expert, unlike that of a
fingerprint expert, is generally of a frail character and its
fallibilities have been quite often noticed The courts should,
therefore, be wary to give too much weight to the evidence of
handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo v.
Babu Ganesh Prasad Bhagat this Court observed that conclusions
based upon mere comparison of handwriting must at best be
indecisive and yield to the positive evidence in the case.”
30. It is thus clear that uncorroborated evidence of a hand writing
expert is an extremely weak type of evidence and the same should
not be relied upon either for the conviction or for acquittal. The
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courts, should, therefore, be wary to give too much weight to the
evidence of handwriting expert. It can rarely, if ever, take the place
of substantive evidence. Before acting on such evidence, it is usual
to see if it is corroborated either by clear, direct evidence or by
circumstantial evidence.
137. PW-48 in cross-examination dated 01.06.2024(before lunch)
at page no. 6 has deposed that Sh. Bhagwan Singh/PW-14 had confirmed
that the photo affixed on CAF form Ex.PW5/A was of Sh. Manoj Kumar.
He did not state to PW-48 that the signatures appearing on CAF as well
as the photocopy of voter ID card was of Manoj Kumar.
138. PW-2 had given documents to Manoj and Ajit for getting job
for witness attestation. He had told their name to SI Rajesh and Sh.
Paramjeet. Ajit and Manoj remained at PS upto evening of 22.09.2013
and in presence of PW-2 Sh. Manoj their statement was not recorded. He
was taken back to PS from Operation cell in the evening of 23.09.2013.
He does not remember the year in which the documents were given by
him to Ajit and Manoj. It is further deposed at page no.6 that police had
taken signature of PW-2 on one paper which was not read by him. In
cross-examination dated 28.01.2015 PW-2 Manoj has deposed that one
Mr. Anil his friend lives in village Sunderpur near his place of residence.
Mr. Anil is his childhood friend. At page 2 of his cross-examination dated
28.01.2015 it is deposed by Sh. Manoj that he used to make signature
only in English language. It is further deposed that police had taken his
signature in Hindi language because his signatures in CAF form are
shown in Hindi language. It is deposed at page 3 that he had demanded
form from accused no. 1 Gautam but he did not return it on the pretext
that it was kept in some place. He does not remember the date of such
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demand and he did not demand back the form again. He had called
accused no. 1 Gautam from the mobile phone of police official whose
name he does not remember. He had also visited police station on
11.12.2013 and 24.09.2013 on asking of SI Rajesh. He need to fill the
form for training of INS Sprata. However PW-2 failed to produce any
document to show that there was any such training to be done at INS
Sprata for which purpose he had allegedly given the documents to
accused no.1 Gautam.
139. As per deposition of above prosecution witness the documents
were also given to another person Sh. Manoj and one person Ajit by
PW-2 Manoj. The said aspect was not investigated by the IO and it has to
be clearly established that the documents which were submitted to PW-12
for issuance of SIM card are the same documents which were allegedly
given to accused no. 1 Gautam Jain. For this purpose other circumstantial
evidence led by the prosecution has to be looked into.
140. It is submitted on behalf of accused no. 3 that in FSL report
Ex.PW44/A the signatures of accused no. 2 were identified and not of
accused no. 3. Accused no. 3 has no role to play regarding the signature
found on the CAF. It is submitted that the activation voice of mobile
number was not of accused no. 3 and as per chargesheet it was of accused
no. 2. The CAF was not signed by accused no. 3. It is the case of the
prosecution that accused no. 3 had taken the CAF to collect the SIM from
the shop. It is submitted that even for the sake of argument if the CAF
was taken by accused no. 3 then only by taking of such CAF to PW-12
there was no intention on the part of accused no. 3 to show that it was
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going to be used for making the ransom call. Mark PW41/1 is photocopy
of CAF at page no. 1791 of case file which bears date of 18.09.2013. It is
submitted that how the CAF will be taken on 18.09.2013 when PW-12
has deposed in his examination-in-chief that on 17.09.2013 he had sold
the SIM card to one person who had produced the documents in the name
of Manoj. Hence the SIM card when already sold on 17.09.2013 then
there was no reason with accused no. 3 to take the CAF form on
18.09.2013. PW-2 Manoj has deposed that on 23.09.2013 police came to
him for inquiry whereas PW-12 has deposed that police came to him for
inquiry on 22.09.2013 which has to be otherwise in normal course.
141. It is already discussed above that the signature of accused no.
2 are remained unproved on the CAF form. Further when the SIM card
was already sold on 17.09.2013 then why the CAF form has to be
submitted before PW-12 on 18.09.2013 and not on 17.09.2013. This
creates doubt about the date on which the alleged SIM card was sold by
PW-12 and to whom it was sold.
142. It is further argued on behalf of accused no. 3 that PW-37 in
his examination-in-chief dated 15.04.2017 has deposed in last line of first
page that he had collected CAF form of the mobile number on next date
which is 22.09.2013. At page no. 4 of cross-examination dated
05.07.2017 and page no. 1113 of case file it is deposed that the CAF was
obtained in the form of electronic image prior to obtaining original hard
copy. He does not remember at what time on 22.09.2013 he had collected
the CAF/Ex.PW5/A. It is argued that there is no receiving of seizure
memo of CAF on 22.09.2013 on record. It is argued that when as per
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chargesheet at page no. 5 the voice of mobile SIM activation was heard
on 23.09.2013 after that only they could have apprehended accused no. 2
and only after that the CAF would be obtained by IO on 23.09.2013 and
not on 22.09.2013. Till Manoj verifies the CAF no suspicion can be put
on accused no. 3. Inquiry was done from Manoj on 23.09.2013 with CAF
and therefore CAF cannot be shown to PW-12 on 22.09.2013. It is
submitted that the owner of mobile shop was Harish which comes in
deposition of PW-12 though Harish was present on 17.09.2013 as per
deposition of PW-12. The salesman who filled the CAF form namely Sh.
Gaurav was not present.
143. Hence it is held that the prosecution has failed to prove that
the CAF form was collected in due course when there is receiving of
seizure memo of CAF on 22.09.2013. The original CAF was destroyed
by fire and such destruction is not proved on record. Requirement to lead
secondary evidence is not satisfied. However the submission of ld.
Counsel for accused that only after hearing the voice of SIM activation
the link could be traced out to accused no. 2 after 23.09.2013 and not on
22.09.2013 is rejected in view of the fact that when the CAF form was
obtained in digital copy on 22.09.2013 then on disclosure of PW-2 Manoj
Kumar that he had given documents to accused no. 1 Gautam Jain then
police had clue and could have investigated the role of accused no. 1
Gautam Jain on 22.09.2013. The digital copy of CAF was obtained on
22.09.2013 and it could therefore be shown to PW-12 on 22.09.2013. The
CAF form was not filled by the accused person and it was filled by the
salesman Gaurav who is not produce in evidence by the prosecution.
PW-12 in cross-examination has objected to taking of CAF form as the
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photograph was not matching with the person who had produced it and
he has improved his deposition to his statement under Section 161 Cr. P.C
Mark PW12/1 portion A to A where it is not recorded that on explanation
by the person who had produced CAF form that his friend was unable to
come. Therefore the CAF form was accepted. There is no reason for not
coming of such friend before PW-12. Hence doubt has arisen about
correct preparation of record by PW-12 and that in non-compliance of
rules he had issued SIM card not to the person whose photo was affixed
on the CAF form. However the prosecution has to prove identity of the
person by whom CAF form was given at the shop of Sh. Harish where
PW-12 was working.
8. ADMINISTRATION OF ALPREX TABLETS AND CAUSE OF
DEATH
144. PW-18 in cross-examination dated 14.01.2016 has deposed at
page 6 that he had went inside the shop of Sunny Medicos. He does not
remember whether any document was prepared nor does he remember if
he had signed any document at the spot.
145. The seizure memo of keys is Ex.PW18/A and it is claimed in
the seizure memo that by those keys accused no. 4 Sandeep had crushed
in plastic bowl 15 tablets of Alprex which was mixed in the cold drink of
the kidnapped child and made the child to drink them.
146. At page no. 6 of chargesheet under Section 173 Cr. P.C it is
stated that accused no. 2 Sandeep with accused no. 3 Mukesh had
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kidnapped Master Jatin Dhingra on 21.09.2013 in Maruti Wagon R
bearing no. DL9CX1861 and bought him to their accomplice accused no.
4 Sandeep at M/s. Sunny Medicos where they had administered 15
Alprex tablets in cold drink to master Jatin Dhingra. Accused no. 4 had
refused to keep Master Jatin Dhingra with him on which accused no. 2
and 3 had planned to kill Master Jatin Dhingra. Accused no. 2 and 3 had
bought Master Jatin Dhingra in Wagon R at Nanglipuna Nala near
Farmhouse. First they strangulated the breath of Master Jatin Dhingra
with a small pillow in a car by pressing his mouth and neck and after
believing that he has dead they had thrown the body in Nala and after that
accused no. 2 had called wife of PW-3 on mobile phone for demanding
ransom. Ld. Counsel for accused no. 2 has referred to deposition of
PW-45 Dr. Kanaklata Verma. PW-45 has deposed that she had received
Parcel 1 containing viscera of Master Jatin Dhingra containing Ex.1A,
Ex.1B and Ex.1C. Parcel 2 contained Ex.2 which is a black coloured
small bowl. In Ex.2 on chemical microscopic examination was found
Alprazolem (Benzodiazepine group of drugs). Whereas Benzodiazepine
and Pesticides, metallic poison, ethyl and methyl alcohol, cyanide,
phosphide, alkaloids, barbiturates, tranquilizers could not be detected in
Ex.1A, Ex.1B and Ex.1C. Hence had the deceased being administered
Alprex tablet that too 15 in number then they must have shown in viscera
Ex.1A, Ex.1B and Ex.1C and therefore the deceased was not
administered any tablets and prosecution story fails on this account.
147. It is argued on behalf of accused no. 3 that the car belongs to
accused no. 2 and there is no evidence that accused no. 3 had any role to
play in kidnapping. There is no corroborative evidence.
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148. It is noted that though there are traces of Benzodiazepine
group of drugs in Ex.2 which is the black colour small bowl in which the
Alprex tablets was allegedly crushed. However the said drug was not
found in Ex.1A, Ex.1B and Ex.1C contained in parcel 1 having viscera of
Master Jatin Dhingra. Hence prosecution has failed to prove that the
above drug by the name Alprex was administered by the accused person
to the deceased Master Jatin Dhingra. It is not the case of the prosecution
that the effect of such drugs could evaporate over such period of time. In
absence of above drug in the viscera of Master Jatin Dhingra proves that
this drug was not administered to the deceased and even if the same is
seen in Ex.2 the black colour small bowl even then it is of no
consequence. Hence it is held that prosecution has failed to prove that the
accused person had administered the Alprex drug to Master Jatin
Dhingra.
149. The seizure memo of medicine plastic bowl is Ex.PW18/B at
page no. 1734 of case file. PW-8 Dr. S. Lal, Spl. Forensic Medicine has
deposed that he had conducted postmortem of Master Jatin Dhingra on
24.09.2013 who was wearing a steel kara on right wrist and the body was
highly decomposed. No external visible injury was found in the body.
The cause of death is asphyxia due to ante mortem drowning. Viscera
was preserved to ruled out intoxication. The time since death was 03
days. It means that Master Jatin Dhingra has expired on 21.09.2013. It is
argued on behalf of accused no. 2 that it is not the case of prosecution
that the victim was wearing steel kara on the right hand. It is noted that
PW-8 had proved that the death had occurred not due to strangulation by
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pillow but it was due to ante mortem drowning whereas the prosecution
has claimed that by way of strangulation. Ld. Counsel for accused has
referred to deposition of PW-47 Ms. Poonam Sharma, Asst. Director
(Biology) FSL who had examined Ex.1 to Ex.6. Ex.4 is one small
cushion having dirty stains and Ex.5 is one small cushion. On biological
examination blood could not be detected on Ex.2, Ex.4 and Ex.5. Ex.3 is
one biri. Saliva could not be detected on Ex.3. Ex.1 is cloth piece having
light brown stains and Ex.6 is gauze cloth piece having brown stains
described as blood gauze piece of deceased. On DNA examination the
profile could not be generated on Ex.1 and Ex.6 due to degradation of
exhibits or due to presence of inhibitors. Ld. Counsel for accused has
argued that it is not proved by prosecution that Ex.1 and Ex.6 does
belong to human blood. It is also not proved that it belongs to any blood
group of Master Jatin Dhingra. Ex.6 is the blood taken from the deceased
and the DNA profile could not be generated. Hence it is submitted that
there was no blood detected on the pillow seized and no relation is made
out about strangulating deceased Jatin Dhingra in a car by accused no. 2
and 3. It is argued that there is no evidence on record by prosecution on
record to substantiate this claim.
150. It is submitted on behalf of accused no. 2 that the case of the
prosecution is that accused no. 2 and 3 had strangulated the deceased by
pillow and after Master Jatin Dhingra the deceased had died then his
body was thrown in the Nanglipuna drain. PW-8 Dr. S. Lal Specialist
Forensic Medicine from Hedegevar Arogaya Sansthan has deposed in his
examination-in-chief that he had conducted postmortem on the dead
body. No external injury was visible on the body. The cause of death was
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Asphyxia due to antemortem drowning. Viscera was preserved to rule out
intoxication. The time since death was approximately 03 days. The
postmortem was conducted on 24.09.2013. Hence the date of expiry of
deceased come to the date 21.09.2013 and 21.09.2013 is the date of
kidnapping.
151. It is submitted by ld. Counsel for accused no. 3 that at the 6 th
page of chargesheet which is page no. 1453 of case file it is written by IO
as prosecution story that first Master Jatin Dhingra was strangulated and
killed by accused no. 3 and 4. After killing he was thrown in drain. After
that accused no. 4 called wife of PW-3 Ms. Raj Dhingra on mobile phone
to demand ransom. It is submitted that after killing the kidnapped child
there was no reason with the accused to call for ransom as the child was
no more with them and it is not a normal course of circumstance. When
the kidnapped child was already killed no motive was left with the
accused to call for ransom from PW-3.
152. Ld. Counsel for accused has referred to Maruti Wagon R car
and evidence in this regard. Ex.PW26/A at page no. 1581 of case file is
the car inspection report of Wagon R bearing no. DL9CX1861. As per
report there is no fresh damage and the vehicle was found fit for running
on road. PW-26 retd. ASI Gurdeep Singh had conducted the mechanical
inspection after visiting at the PS. IO had provided the keys. No chance
print was taken from the car in his presence. The store room register (Part
I) at relevant pages is Ex.PW28/A and at page 3 of this exhibit under the
heading ‘Description of property’ the seizure report is mentioned. The
seizure report mention that in front of witnesses after personal search of
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accused no. 2 Sandeep the key of the car was recovered from pocket of
his friend which bears logo of Maruti company on the head.
153. PW-48 in cross-examination dated 30.05.2024 has deposed as
correct that he had not got lifted the finger print through FSL or crime
team from the car on 24.09.2013. It is further admitted as correct that on
24.09.2013 till date the car and keys of the car were in the Malkhana. It is
argued that the IO has not got lifted evidence from the Wagon R car and
the car keys were lying in Malkhana and therefore the car key are freely
available to anyone to be used for collecting such evidence from the car
and which cannot be relied upon. It is further deposed at page 5 that
PW-48 had prepared seizure memo of exhibits provided by Ms. Anita
Gupta, Incharge FSL team on 08.10.2013 which is contradictory to the
deposition that between 24.09.2013 till 08.10.2013 the car keys were in
Malkhana. It is admitted as correct by PW-48 that there are no signature
of any member of FSL team including the incharge Ms. Anita Gupta in
the seizure memo. It is admitted as correct that no FSL seal was put on
exhibits. It is admitted as correct that no finger prints were taken at that
time from the car. PW-48 does not remember whether any blood was
detected from the cushion/exhibits sent to FSL.
154. PW-8 has depose that the time since death was 03 days which
brings date of expiry of deceased Master Jatin Dhingra as 21.09.2013.
The date of recovery of dead body was 23.09.2013. The accused person
would not have kept the dead body for two days with them and natural
conduct would be to earliest get away with it. When the body was thrown
in a running water drain then it could have floated at some distance.
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PW-8 has proved that the death has not occurred due to strangulation by
pillow but it had occurred due to ante mortem drowning. Hence the case
of the prosecution that first the victim was killed by strangulation by the
accused and then later on thrown in the drain could not be sustained. The
DNA profile of the dead body could not be generated by PW-47 due to
degradation of exhibits/presence of inhibitors. The prosecution has failed
to prove that the blood group of the body belongs to the dead body of
Master Jatin Dhingra or that it has similar DNA profiling. No blood was
detected in the pillow seized in the case allegedly in which the victim
was kidnapped and strangulated by pillow nor any DNA sampling in the
pillow is proved on record that it contained any body fluid of Master
Jatin Dhingra which could connect the deceased with the car. There is
variation in the height of the body recovered and doubt is also created in
the fact that whether it is same body pertains to Master Jatin Dhingra or
of some other person. The submission of ld. Counsel for accused no. 3
that when the child was already killed on 21.09.2013 then there was no
reason with the accused person to make call for ransom has no logical
basis as the alleged accused person would be more interested in recovery
of ransom then delivery of the life of the deceased to their parents and
hence the above submission is rejected in view of the fact that the above
submission may be relevant in civil disputes but not in respect of the case
of ransom. Further, when the car keys were in Malkhana between
24.09.2013 till 08.10.2013 and when PW-48 did not get lifted the finger
print through FSL or crime team from the car on 24.09.2013 then there is
absence of specific date and time when the seizure memo of exhibits
provided through FSL was prepared which were later provided by Ms.
Anita Gupta the Incharge FSL team on 08.10.2013. hence the above
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deposition creates doubt in the case of prosecution about proper seizure
of articles and their proper custody in Malkhana or that till they remained
in Malkhana they could not be tampered with.
9. CAPACITY OF PW-3 TO PAY RANSOM OF RS.40 LAKHS ALSO
APPLICABILITY OF SECTION 120B IPC
155. Ld. Counsel for accused no. 2 has submitted that there is
absence of last seen evidence and therefore there is no burden on accused
to explain it. It is submitted that all the accused were arrested from their
residence/work place. There is no extra judicial confession on behalf of
accused. It is argued that accused are not connected with each other and
there is no prior meeting of mind. The accused have not interse
communicated with each other. Motive of crime is not established by the
prosecution and accused was not in need of any money nor he did he lost
money in gambling/Satta. The MLC of accused was not prepared. It is
further argued that the worth/capacity of PW-3 Kishan Lal to pay Rs.40
lakhs is also not proved and story of prosecution is not supported by any
evidence that PW-3 had such wealth. It is submitted by ld. Counsel for
accused no. 3 that PW-3 the father of deceased was earlier an auto driver
and later on he started business of property dealing and there is no
evidence brought by the prosecution to show that PW-3 was affluent
enough to pay ransom of Rs.40 lakhs. PW-3 in his cross-examination
dated 22.05.2015 at page 4 (page no. 739 of case file) has deposed that he
used to run auto before starting business of property dealing.
156. Ld. Counsel for the accused no. 2 has submitted that there was
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no motive with the accused person to kidnap child of PW-3. The entire
case of prosecution is based on circumstantial evidence. PW-3 was earlier
auto driver by profession and he was not living a lifestyle to show his
capacity to pay Rs.40 lakhs. If he did not had capacity to pay Rs.40 lakhs
then why any person will try to demand a ransom from PW-3. PW-48 in
cross-examination dated 01.06.2024 (before lunch) at page 1 has deposed
that he did not collect any documentary evidence to show the capacity
that the complainant has Rs.40 lakhs as means to pay the ransom.
157. At page no. 6 of chargesheet under Section 173 Cr. P.C it is
stated that accused no. 2 Sandeep had disclosed in his disclosure
statement before Insp. Naresh Kumar and SI Rajesh Kumar that he had
suffered big loss in gambling of society. After that he had made a
planning with accused no. 3 Mukesh and accused no. 4 Sandeep that they
will kidnap son of PW-3 namely Master Jatin Dhingra. Accused no. 2 and
3 knew the child Master Jatin Dhingra very well and after his abduction
they will extract huge ransom. It is argued that no such loss in gambling
by accused no. 2 Sandeep is proved on record. It is submitted on behalf
of accused no. 3 that loss in gambling is not proved on the part of
accused no. 2.
157.1 It is submitted on behalf of accused no. 2 that the case of
prosecution is that the accused no. 3 had suffered financial loss due to
which the kidnapping for ransom was planned. However there is no proof
on behalf of prosecution to prove such financial loss and poor financial
condition of accused no. 2 and 3. There is no evidence in this regard. It is
submitted that merely mentioning this fact in disclosure statement is not a
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proof and there is no discovery of fact by the prosecution. It is submitted
that there is absence of motive on the part of accused person to commit
kidnapping for ransom. ld. Counsel for accused has relied on citation
titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC
OnLine SC 1396 (Coram:3) at relevant para no. 76 to 85 which are
reproduced hereasunder:
EXTRA JUDICIAL CONFESSION
76. It is the case of the prosecution that on 23.01.2010 the accused
appellant is said to have visited the house of the PW-3, Babu Ram
Hans at about 9:00 o’clock in the morning and sought his help.
While seeking help from the PW-3, Babu Ram Hans, the accused
appellant is said to have made an extra judicial confession that he
had brutally killed his wife Sangeeta for not giving consent to him
to marry Manju. The accused appellant is also said to have made
an extra judicial confession to the PW-3, Babu Ram Hans that he
had also killed his four daughters viz. Tulsi, Lakshmi, Kajal and
Guddi and thereby had committed a huge mistake. The trial court
and the High Court have believed the so called extra judicial
confession said to have been made by the accused appellant before
the PW-3, Babu Ram Hans. However, the trial court as well as the
High Court should have put a question to themselves before
believing the extra judicial confession whether the accused
appellant was a free man on 23.01.2010 so as to reach the house
of PW-3, Babu Ram Hans at 9:00 o’clock in the morning and make
an extra judicial confession. This is one of the basic infirmities we
have noticed in the judgment of both the Courts. There is cogent
evidence on record to indicate that on 22.01.2010, the accused
appellant first visited the house of PW-1, Shambhu Raidas (first
informant) and narrated about the incident. The PW-1, Shambhu
Raidas thereafter lodged the First Information Report (FIR) at the
police station and as deposed by him, the accused appellant all
throughout was at the police station. If on 22.01.2010 the accused
is sent for medical examination along with a police yadi
accompanied by a police constable to the hospital then how does it
lie in the mouth of the prosecution to say that after the medical
examination the accused appellant was allowed to go home and
move around freely. The witnesses have said in their oral evidence
that the accused appellant was picked up by the police on
22.01.2010 in the early morning itself. This entire case put up by
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the prosecution that an extra judicial confession was made by the
accused appellant before the PW-3, Babu Ram Hans on 23.01.2010
appears to be fabricated and engineered only to bolster up the
case of the prosecution.
77. It is also the case of the prosecution that similar such extra
judicial confession was made by the accused appellant before the
PW-4, Ram Kumar, S/o Paanchoo on the very same day of the
incident itself i.e. 22.01.2010 at 06:30 in the morning. If we peruse
the oral evidence of the PW-4, Ram Kumar then according to him
at the relevant point of time he was a member of the District
Panchayat. According to PW-4, Ram Kumar, the accused appellant
had visited his house at 06:30 in the morning and made an extra
judicial confession that he had committed a serious crime. How
does the prosecution expect us to believe even the second extra
judicial confession alleged to have been made before the PW-4,
Ram Kumar? How does the prosecution expect us to believe that
the accused appellant was present at three different places on or
about the same time. Either we believe PW-1, Shambhu Raidas
(first informant) that the accused appellant visited his house at
06:30 in morning or we believe the PW-2, Chhatrapal Raidas, who
has deposed that the accused appellant had visited his house at
07:00 o’clock in the morning or we believe the PW-4, Ram
Kumar that the accused appellant had visited his house at 06:30 in
the morning. How is it possible for the accused appellant to be
present at three different places in or around between 06:30 A.M.
to 07:30 A.M. One another aspect that makes the oral evidence of
the PW-4, Ram Kumar very doubtful is that his house is situated at
a distance of 6-7 kilometers from Dhaurhara and according to the
PW-4, the accused appellant visited his house all the way walking
from his own house. The PW-4, Ram Kumar also appears to be a
‘got up’ witness only for the purpose of creating evidence in the
form of extra judicial confession. At this stage, we may once again
go back to the oral evidence of the PW-1, Shambhu Raidas (Exh.1).
In his evidence, he has said, “the inspector had not interrogated me
at the police station. The inspector had visited the place of the
incident in his vehicle. I left the police station at the 02:00 o’clock
in the night. I had stayed at the police station right from the time I
lodged the FIR in the morning till 02:00 o’clock in the night and
Ramanand also stayed with me at the police station. The police
official had challaned Ramanand on the third day. Till then
Ramanand was continuously staying at the police station.
[Emphasis supplied]
78. The PW-2, Chhatrapal Raidas in his evidence has deposed, “I
came to know about the incident at 07:00 o’clock in the morning. I
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came to know through Ramanand. Ramanand had come to my
house at 07:00 o’clock. Ramanand was alone then. Ramanand told
me that his wife and children were burning in the house; someone
had killed and set them on fire. Saying this Ramanand left for his
home. Thereafter, Pratap and Shambhu reached the place of
Ramanand on a bicycle and I reached walking. When I reached the
house of Ramanand, Pratap and Shambhu were dousing the fire at
the house with water. Ramanand was warming his body sitting over
here and villagers were standing outside. The clothes of Ramanand
were soaked with blood. The Inspector reached sometime
thereafter. Thereafter, I, Shambhu and Pratap went with the
inspector to the police station in a jeep. It took half an hour for the
inspector to arrive at the spot. It was about 8-9 o’clock in the
morning the police officials took Ramanand to the police station
before us.”
79. Thus, it is very difficult for us to believe that the accused
appellant could have made extra judicial confession on 23.01.2010
before the PW-2 and also before the PW-4 on 22.01.2010 at 06:30
A.M. i.e. on the date of incident. We have reached to the
conclusion that the investigating officer has deliberately shown
arrest of accused appellant on 24.01.2010 and that too from a
place like bus stand. As discussed above, the accused appellant
was arrested and taken in custody in the morning of 22.01.2010
itself. One Police Constable along with a police yadi had taken the
accused appellant to the hospital in the morning itself for medical
examination. Only with a view to show that between 22.01.2010
and 24.01.2010 the accused appellant made extra judicial
confession before two witnesses, the investigating officer has shown
arrest of the accused appellant on 24.01.2010 which is just
unbelievable.
80. Confessions may be divided into two classes, i.e. judicial and
extra judicial. Judicial confessions are those which are made
before Magistrate or Court in the course of judicial proceedings.
Extra judicial confessions are those which are made by the party
elsewhere than before a Magistrate or Court. Extra judicial
confessions are generally those made by a party to or before a
private individual which includes even a judicial officer in his
private capacity. It also includes a Magistrate who is not especially
empowered to record confessions under Section 164 of the CrPC or
a Magistrate so empowered but receiving the confession at a stage
when Section 164 does not apply. As to extra judicial confessions,
two questions arise: (i) were they made voluntarily? And (ii) are
they true? As the Section enacts, a confession made by an accused
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person is irrelevant in a criminal proceedings, if the making of the
confession appears to the Court to have been caused by any
inducement, threat or promise, (1) having reference to the
charge against the accused person, (2) proceeding from a person
in authority, and (3) sufficient, in the opinion of the Court to give
the accused person grounds which would appear to him reasonable
for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings
against him. It follows that a confession would be voluntary if it is
made by the accused in a fit state of mind, and if it is not caused
by any inducement, threat or promise which has reference to the
charge against him, proceeding from a person in authority. It would
not be involuntary, if the inducement, (a) does not have reference to
the charge against the accused person, or (b) it does not proceed
from a person in authority; or (c) it is not sufficient, in the opinion
of the Court to give the accused person grounds which would
appear to him reasonable for supposing that, by making it, he
would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him. Whether or not the
confession was voluntary would depend upon the facts and
circumstances of each case, judged in the light of Section 24 of
the Evidence Act. The law is clear that a confession cannot be
used against an accused person unless the Court is satisfied that it
was voluntary and at that stage the question whether it is true or
false does not arise. If the facts and circumstances surrounding the
making of a confession appear to cast a doubt on the veracity or
voluntariness of the confession, the Court may refuse to act upon
the confession, even if it is admissible in evidence. One important
question, in regard to which the Court has to be satisfied with is,
whether when the accused made confession, he was a free man or
his movements were controlled by the police either by themselves
or through some other agency employed by them for the purpose of
securing such a confession. The question whether a confession is
voluntary or not is always a question of fact. All the factors and
all the circumstances of the case, including the important factors at
the time given for reflection, scope of the accused getting a feeling
of threat, inducement or promise, must be considered before
deciding whether the Court is satisfied that its opinion, the
impression caused by the inducement, threat or promise, if any, has
been fully removed. A free and voluntary confession is deserving
of highest credit, because it is presumed to flow from the highest
sense of guilt. [See R. V. Warwickshall: (1783) Lesch 263)]. It is
not to be conceived that a man would be induced to make a free
and voluntary confession of guilt, so contrary to the feelings and
principles of human nature, if the facts confessed were not true.
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Deliberate and voluntary confessions of guilt, if clearly proved,
are among the most effectual proofs in law. An involuntary
confession is one which is not the result of the free will of the
maker of it. So, where the statement is made as a result of the
harassment and continuous interrogation for several hours
after the person is treated as an offender and accused, such
statement must be regarded as involuntary. The inducement may
take the form of a promise or of threat, and often the
inducement involves both promise and threat, a promise of
forgiveness if disclosure is made and threat of prosecution if it is
not. (See Woodroffe Evidence, 9th Edn. Page 284). A promise is
always attached to the confession, alternative while a threat is
always attached to the silence-alternative; thus, in the one case the
prisoner is measuring the net advantage of the promise, minus the
general undesirability of a false confession, as against the present
unsatisfactory situation; while in the other case he is measuring the
net advantages of the present satisfactory situation, minus the
general undesirability of the confession against the threatened
harm. It must be borne in mind that every inducement, threat or
promise does not vitiate a confession. Since the object of the rule
is to exclude only those confessions which are testimonially
untrustworthy, the inducement, threat or promise must be such as is
calculated to lead to an untrue confession. On the aforesaid analysis
the Court is to determine the absence or presence of inducement,
promise etc. or its sufficiency and how or in what measure it
worked on the mind of the accused. If the inducement, promise
or threat is sufficient in the opinion of the Court, to give the
accused person grounds which would appear to him reasonable for
supposing that by making it he would gain any advantage or avoid
any evil, it is enough to exclude the confession. The words ‘appear
to him’ in the last part of the section refer to the mentality of the
accused. (See State of Rajasthan v. Raja Ram, (2003) 8 SCC 180)
81. An extra judicial confession, if voluntary and true and made in
a fit state of mind, can be relied upon by the Court. The confession
will have to be proved like any other fact. The value of the
evidence as to confession, like any other evidence, depends upon
the veracity of the witness to whom it has been made. The value
of the evidence as to the confession depends on the reliability of
the witness who gives the evidence. It is not open to any Court to
start with a presumption that extra judicial confession is a weak
type of evidence. It would depend on the nature of the
circumstances, the time when the confession was made and the
credibility of the witnesses who speak to such a confession. Such a
confession can be relied upon and conviction can be founded
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thereon if the evidence about the confession comes from the mouth
of witnesses who appear to be unbiased, not even remotely inimical
to the accused, and in respect of whom nothing is brought out
which may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused, the words
spoken to by the witness are clear, unambiguous and unmistakably
convey that the accused is the perpetrator of the crime and nothing
is omitted by the witness which may militate against it. After
subjecting the evidence of the witness to a rigorous test on the
touchstone of credibility, the extra judicial confession can be
accepted and can be the basis of a conviction if it passes the test of
credibility.
82. Extra judicial confession is a weak piece of evidence and the
court must ensure that the same inspires confidence and is
corroborated by other prosecution evidence. It is considered to
be a weak piece of evidence as it can be easily procured whenever
direct evidence is not available. In order to accept extra judicial
confession, it must be voluntary and must inspire confidence. If the
court is satisfied that the extra judicial confession is voluntary, it
can be acted upon to base the conviction.
83. Considering the admissibility and evidentiary value of extra
judicial confession, after referring to various judgments, in
Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403,
this Court held as under:-
“15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC
259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC
p. 265, para 10)“10. An extra-judicial confession by its very nature is rather a weak
type of evidence and requires appreciation with a great deal of care
and caution. Where an extra-judicial confession is surrounded by
suspicious circumstances, its credibility becomes doubtful and it
loses its importance.”
xxxx
15.4. While explaining the dimensions of the principles governing
the admissibility and evidentiary value of an extrajudicial
confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8
SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p.
192, para 19)
“19. An extra-judicial confession, if voluntary and true and made
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in a fit state of mind, can be relied upon by the court. The
confession will have to be proved like any other fact. The value
of the evidence as to confession, like any other evidence, depends
upon the veracity of the witness to whom it has been made.”
The Court further expressed the view that: (SCC p. 192, para 19)
“19. … Such a confession can be relied upon and conviction can be
founded thereon if the evidence about the confession comes from
the mouth of witnesses who appear to be unbiased, not even
remotely inimical to the accused, and in respect of whom nothing
is brought out which may tend to indicate that he may have a
motive of attributing an untruthful statement to the accused….”
xxxx
15.6. Accepting the admissibility of the extra-judicial confession,
the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC
604 : (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-30)
“29. There is no absolute rule that an extra-judicial confession can
never be the basis of a conviction, although ordinarily an extra-
judicial confession should be corroborated by some other
material. Vide Thimma and Thimma Raju v. State of Mysore
[(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of
U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219] , Sivakumar v. State
[(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and
41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State
of Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320]
and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3
SCC (Cri) 1082] ]”” [Emphasis supplied]
84. It is well settled that conviction can be based on a voluntarily
confession but the rule of prudence requires that wherever possible
it should be corroborated by independent evidence. Extra
judicial confession of accused need not in all cases be
corroborated. In Madan Gopal Kakkad v. Naval Dubey and
Another, (1992) 3 SCC 204, this Court after referring to Piara
Singh and Others v. State of Punjab, (1977) 4 SCC 452, held that
the law does not require that the evidence of an extra judicial
confession should in all cases be corroborated. The rule of
prudence does not require that each and every circumstance
mentioned in the confession must be separately and independently
corroborated.
85. The sum and substance of the aforesaid is that an extra judicial
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confession by its very nature is rather a weak type of evidence and
requires appreciation with great deal of care and caution. Where an
extra judicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
importance like the case in hand. The Courts generally look for an
independent reliable corroboration before placing any reliance
upon an extra judicial confession.
158. The prosecution must show under Section 120B IPC that
accused person had prior meeting of mind. There has to be some
evidence to show that accused person had met all together prior to the
commission of offence or had such prior meeting of mind. It is argued on
behalf of accused no. 1, 2 and 3 that there was no prior intimacy between
them nor they were known to each other. PW-2 in cross-examination
dated 07.01.2015 at page 4 and 5 (page no.689 of case file) has deposed
that he had given name of two person to whom he had given the
documents i.e. photocopy of election ID card, photocopy of educational
documents and photocopy of ration card whose name are Sh. Ajit Kumar
and Sh. Manoj. He does not remember house number of Ajit who was
residing at B Block, Jahangir puri and Manoj Kumar was residing at
Ramgarh, near Jahangirpuri Metro Station. Manoj used to work at NDPL.
He did not name any person from Adarsh Nagar who used to be a
photographer.
159. There is no evidence nor any witness if the accused person
have ever met before. There is no CDR of phone call record nor any
location chart to show that accused person had met before. It is submitted
that the allegation of the prosecution is against accused no.2 that he had
activated the mobile SIM with his voice and accused no. 3 had no role in
it.
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160. As per deposition of PW-48 in cross-examination dated
20.04.2024 at page 6 and 7 it is deposed that there is no evidence in
which school accused Gautam had studied. It is further deposed that there
is no evidence to show that accused no. 1 Gautam and accused no. 2
Sandeep studied together in the same school. PW-48/IO does not
remember whether there is any CDR of mobile number of accused no. 1
and 2 and the said CDR could not be found on record after going through
the file. Hence it is noted that the said two accused were not related to in
any manner with each other and there was no prior meeting between
them any time and therefore Section 120B IPC is not applicable. There is
no evidence of interse relationship through mobile phone call or
otherwise and only speculation is made by the prosecution in this respect.
PW-48 in cross-examination dated 30.05.2024 at page 2 has deposed that
except disclosure statement of accused no. 2 he did not investigate
whether accused no. 1 and 2 had studied together at Adarsh Nagar, Delhi.
He did not ascertain academic year or name of the school.
161. PW-37/SI Rajesh Kumar at page no. 1107 of case file has
deposed that he had come to know prior to arrest of accused no.1 Gautam
that accused no. 2 Sandeep was residing at Nanglipuna and he had a
medical shop in Burari. PW-37 has deposed that he did not conduct any
investigation to collect material indicating that accused no. 1 Gautam and
accused no. 2 Sandeep had studied in the same school in Adarsh Nagar,
Delhi nor their academic years were ascertained. PW-37 does not
recollect the time of arrest of accused no. 1 Gautam.
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162. PW-48 in cross-examination dated 20.04.2024 at page 6 has
deposed that there is no evidence that in which school accused Gautam
has studied. There is no evidence to show accused no. 1 Gautam and
accused no. 2 Sandeep have studied in the same school. He does not
remember whether there is any CDR of mobile phone of accused no. 1
and 2 and same was not seen in the case file after granting permission to
PW-48. PW-48 does not have any proof that accused no. 1 Gautam was
working at SERCO BPO.
163. In view of above it is held that prosecution has failed to prove
that there was prior meeting of mind between the accused persons to
invoke Section 120B IPC.
164. In the case titled Manish Sharma @ Pappan Vs. State of NCT
of Delhi AIR Online (2018) Delhi 145 it is laid down at para no. 78 to 81
that when PW-1 in that case was a junk dealer then accused would have
known that PW-1 could not afford such kind of money and the demand
for ransom of Rs.15 lakhs was far fetched and wholly unrealistic. It was
laid down that motive play an important role in case of circumstantial
evidence where the other circumstances were not proved convincingly by
the prosecution. Further, had the accused being in desperate need of
money then he would not have killed the victim on the very first day as
alleged by the prosecution. In the present case also the PW-3 was a auto
driver and later turned into property dealer which the prosecution must
show by such evidence that the public person or accused would have
known that PW-3 could have afforded payment of ransom for a sum of
Rs.40 lakh. The prosecution has failed to bring any evidence to
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substantiate such capacity to pay ransom of Rs.40 lakh in PW-3. Further,
there is no evidence brought on record by the prosecution that the
accused had lost money in gambling/Satta which is the case of the
prosecution. Even the financial status for last two year of the accused is
not proved on record to show that there was continous deterioration of
their financial standing to substantiate the allegation of prosecution. In
absence of such proof the killing of child on the very first day has
therefore become inconsistent with the story of prosecution that the
accused were in desperate need of money which led to kidnapping and
killing of the child. The relevant para are reproduced hereasunder:
78. Secondly, PW-1 is only a junk dealer. A-2 would have known
he simply could not afford this kind of money. Therefore, the story
of demand of Rs. 15 lakhs as ransom appears a far reach and
wholly unrealistic. The motive plays an important role in a case of
circumstantial evidence where the other circumstances are not
proved convincingly by the prosecution. As explained by the
Supreme Court in Surinder Pal Jain v. Delhi Administration 1993
Supp (3) SCC 681:
“In a case based on circumstantial evidence, motive assumes
pertinent significance as existence of the motive is an
enlightening factor in a process of presumptive reasoning in
such a case. The absence of motive, however, puts the court on its
guard to scrutinise the circumstances more carefully to
ensure that suspicion and conjecture do not take place of legal
proof.”
79. In Arjun Mallik v. State of Bihar 1994 Supp (2) SCC 372 the
Supreme Court further explained the position and the following
words:
“…mere absence of proof of motive for commission of a crime
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involvement of the accused is otherwise established. But it has to
be remembered that in incidents in which the only evidence
available is circumstantial evidence then in that event the motive
does assume importance if it is established from the evidence on
record that the accused had a strong motive and also an
opportunity to commit the crime and the established
circumstances along with the explanation of the accused, if
any, exclude the reasonable possibility of anybody else being the
perpetrator of the crime then the chain of evidence may be
considered to show that within all human probability the crime
must have been committed by the accused.”
80. It is, therefore, not as if proof of motive is unnecessary or
irrelevant in all cases. While in the case of direct evidence, motive
may not assume much significance, in a case of circumstantial
evidence, the failure to prove motive would not be fatal only if all
other circumstances have been established beyond reasonable
doubt by the prosecution.
81. In the present case the conduct of the accused in killing the
child on the very first day, as alleged by the prosecution, is wholly
inconsistent with the story of their being desperately in need of
money and that leading to the kidnapping and killing of the child.
10. VOICE SAMPLE OF ACCUSED ON SIM ACTIVATION
165. Ld. Counsel for accused no. 2 has pointed out deposition of
PW-48 dated 13.01.2023 at page no. 1343 of case file where it is deposed
that on 27.09.2013 PW-48 alongwith his staff took accused no. 2 to FSL,
Rohini for recording of his voice sample and FSL officials recorded voice
sample. Two cassettes were handed over to PW-48 one of which was
containing original sample of voice of accused no. 2 and another cassette
was containing copy of same sample voice. The IO at page 2 of same
cross-examination has deposed that he had sealed both the cassette with
the seal of ‘PS’. It is argued on behalf of accused no. 2 that seal was not
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put by FSL but by PW-48 and therefore the said voice does not contain
original voice of accused no. 2. It is further submitted that it cannot be
ruled out that voice sample was tampered by PW-48 or any other person
in the meanwhile. The seizure memo of voice cassette is Ex.PW34/B at
page 1749 of case file. It is argued that the said seizure memo does not
mention that who had recorded the voice sample. It is argued that PW-48
has not identified the said cassettes as the same cassettes which were
seized by him vide Ex.PW34/B. It is further submitted that FSL, Rohini
is not notified under Section 79 of Information Technology Act for
recording voice sample and therefore FSL, Rohini is not competent to
make a report on such voice. It is submitted that there is no witness to the
fact that who had given the cassettes for the purpose of recording of
voice sample. It is submitted that the name of the person who had
recorded the voice and who has witnessed it has also not proved on
record. It is argued on behalf of accused no. 2 that there is no application
on behalf of IO to FSL to take voice sample. PW-48 in cross-examination
dated 30.05.2024 has deposed as correct that in statement Ex.PW37/DA
dated 24.09.2013 it is not recorded that SI Rajesh had collected any voice
recording from Idea Cellular Company Ltd. PW-48 is also confronted
with Ex.PW37/DA that it is not recorded there if SI Rajesh kumar had
informed PW-48 that he had taken soft copy of the voice and same is
admitted as correct by PW-48. It is submitted by ld. Counsel for accused
no. 2 that the voice record from Idea Cellular Company does not have
certificate under Section 65B of Indian Evidence Act and therefore
authenticity of this sample cannot be relied upon as to its correct
extraction.
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State Vs. Gautam Jain & Ors. Page 166 of 174
166. It is deposed by PW-48 in cross-examination dated
30.05.2024 at page 3 as correct that it is not mentioned in statement of
Sh. Kishan Lal Ex.PW3/DA dated 24.09.2013 that he had heard any
voice recording. It is deposed that SI Rajesh Kumar has provided voice
recording from laptop to PW-48 in pendrive which was copy. However
no certification under Section 65B of Indian Evidence Act was given by
SI Rajesh Kumar. PW-48 did not deposit pendrive in Malkhana nor did
he file it with the case file and he cannot bring it now before the Court. It
is deposed by PW-3 in examination-in-chief dated 11.12.2014 at first
page and page no. 707 of case file that he had heard and identified voice
of accused no. 2 Sandeep at the office of DCP. He is confronted with his
statement under Section 161 Cr. P.C. Ex.PW3/DA where it is not
recorded that he met with DCP on 22.09.2013. The statement is dated
24.09.2013. At page 2 of cross-examination dated 25.02.2015 it is
deposed by PW-3 that on 22.09.2013 SI Rajesh Kumar has not come to
meet him nor his wife. The PW-37 the IO Rajesh Kumar has not
stated/deposed about hearing of voice at DCP office by PW-3. It is argued
that between 22/23.09.2013 voice recording was not available with the
police/investigating agency from Idea Cellular Company Ltd. The PW-43
witness from FSL has admitted in cross-examination as correct that in the
year 2014 the lab at FSL Rohini was not recognised or notified by the
Central Government/State Govt. under Section 79A of the Information
and Technology Act, 2000. PW-46 ACP Naresh Kumar in his
examination-in-chief dated 30.03.2021 at page 2 and page 1249 of case
file has deposed that he was told at PS Burari by SI Rajesh Kumar that
Manoj had stated to SI Rajesh Kumar that he did not get the mobile
number issued. It is argued that the above deposition of PW-46 is only
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heresay evidence and cannot be relied upon.
167. PW-48 in examination-in-chief dated 16.02.2023 at page 3
and page no. 1369 of case file has deposed that he prepared transcript of
voice on 27.09.2013 of voice recording taken by IO which was recorded
at the time of activation of mobile no. 8744806631. He had prepared the
said transcription from voice recording obtained by previous IO/SI
Rajesh. It is argued on behalf of accused that it is incorrect case of the
prosecution that SI Rajesh provided the voice which PW-48 has taken it
in pendrive as SI Rajesh has not deposed so. The notice given to Idea
Cellular Company Ltd. on 29.09.2013 under Section 91 Cr. P.C is vide
Ex.PW41/E. It is submitted that there is no recording of ransom call
allegedly by the complainant and recording was done only of sample
voice vide Ex.PW41/E obtained on 01.10.2023. PW-48 in cross-
examination dated 30.05.2024 at page 5 has deposed as correct that no
signature of any member of FSL team including Incharge Ms. Anita
Gupta were taken in the seizure memo of the voice sample. It is further
admitted as correct that PW-48 had prepared that the seizure memo with
his own seal ‘PS’. It is admitted as correct that Insp. Naresh Kumar did
not inform PW-48 that anyone had discussed with him about voice
recording at the time of activation of mobile phone. It is admitted as
correct that in the statement it is not written that after registration of case
one ransom call was received by parents of kidnapped child. It is
submitted that no soft copy of voice was taken and no CD is filed on
record. No FSL person are saying that they had recorded the voice of the
accused. It is argued that voice of accused no. 2 was never taken by FSL
through a duly authorized person. PW-48 in cross-examination dated
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29.05.2024 at page 5 has admitted as correct that he had not examined
the mobile phone instrument on which the alleged ransom call was
received. It is further admitted at the same page in cross-examination that
PW-48 has not collected the CDR and CAF of the mobile phone on
which ransom call was received. In this respect citation titled Baiju
Kumar Soni Vs. State of Jharkhand (2019) 10 SCR 1111 at para no. 16
relied upon. The relevant para is reproduced hereasunder:
16. In the light of these settled principles, from the facts and
circumstances it is evident:
a) Though PW7 stated that two calls were made from his STD
Booth on 12.01.2006 at about 1327 Hours and 1338 Hours to
specified mobile numbers, nothing has been brought on record that
those two mobile numbers either belonged to PW4 and PW10 or
were in any way under their control. In order to establish as a
circumstance that on the relevant day threatening calls were
received by the said PWs 4 and 10 from the appellants, the
important fact which ought to have been established was that those
two mobile numbers either belonged to or were under the control
of said PWs 4 and 10. Even if we accept the theory that said PW7
had identified the appellants to be the ones who had made two
calls, that does not lead us to infer that the calls must have been
made to PWs4 and 10. This circumstance has not been fully
established which could be read against the appellants.
b) Though drawing book had been received from the house of
appellant no.1 and it was the case of the prosecution that the
threatening letter (Exhibit-II) was written on a piece of paper from
said drawing book, no attempts were made either to have any
forensic analysis or examine handwriting expert to establish that
the writing in the threatening letter was either of the appellants or
could be associated with them.
168. Ld. Counsel for accused no. 2 has submitted that there is no
direct evidence against the accused and the case of the prosecution is
mainly circumstantial evidence. The relevant law in respect of
circumstantial evidence is well settled and the test laid down in citation
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titled Ramanand @ Nandlal Bharti vs. State of U.P. 2022 SCC Online SC
1396 (supra).
169. The voice sample obtained by the IO from Idea Cellular
Company does not have certificate under Section 65B of Indian Evidence
Act and the necessary circumstance for leading secondary evidence are
also not proved on record in absence of which this voice sample could
not be relied upon. Further, the non-recognition of FSL Rohini in the year
2014 as per Section 79A of Information Technology Act, 2000 is
concerned then the same is directory as word “may” is used under the
said provision. The FSL is specially recognized institution for handling
such cases for analyzing forensic evidence whereas there may be other
Central Government agencies having similar capacity could also be
notified for the purpose of such examination of electronic evidence. The
purpose of section is that only such agencies are to be noted which has
proper expertise. Even before enactment of the Information Technology
Act, 2000 FSL was known for its expertise for analysis of forensic
evidence and therefore its expertise in this respect cannot be challenged.
Hence the provision is not mandatory and appears to be directory and has
to be looked into as per the facts and circumstances of the case. Accused
has to show that what prejudice was caused to him by such examination
of evidence at FSL. The IO has sufficient capacity to move FSL to collect
necessary evidence during investigation. However in the present case SI
Rajesh has not shown to have deposed that he had provided voice sample
to PW-48 in the pendrive. The voice sample was taken by SI Rajesh in
his laptop and whether such transfer of data in the laptop and later in the
pendrive to the IO/PW-48 is not certified as per provisions of Section
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65B of Indian Evidence Act, 1872. The signature of team of FSL
Incharge Ms. Anita Gupta were also not taken in the seizure memo of the
voice sample. PW-43 has not deposed that she had collected the voice
sample of the accused. However Ex.S1 is the voice sample of the
accused. The manner in which the voice sample was collected is also not
proved on record. The voice sample of the accused had to be collected
only at FSL before independent agency. The cassette of voice is placed
on record by the IO. How this voice has come into cassette and its proper
certification is not proved on record. The parcel were not returned after
examination does not bear seal of FSL but it bear seal of IO which is
“PS”. The seal was later on remained with the IO. Hence proper
transmitting of data is not proved on record by the prosecution. PW-43
did not prepare any transcription of question voice as well as the sample
voice nor does the report of FSL mentions that the transcript was
provided by the IO to PW-43. In such view of the matter the prosecution
has failed to prove that the examination of voice was done with proper
certification. It cannot be ruled out that there could be loss in data while
transferring one data to another. The authenticity of transfer is not proved
on record. The PW-43 has not deposed that on the basis of what features
of auditory and spectrography analysis she found Ex.Q1 and Ex.S1 as
similar and therefore her report is merely an opinion. It has to be proved
on record that what part of auditory and spectrography analysis proves
that the voice are similar. The same is not proved by the prosecution on
record and therefore it could not be said that Ex.Q1 and Ex.S1 are of the
same person and remained untampered with. Hence it is held that
prosecution has failed to prove that the voice in Ex.Q1 belongs to the
accused which is Ex.S1.
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170. When the voice was recorded at FSL then there was no reason
for PW-48 to put his seal of “PS’ and then hand it over to FSL. Though
the report Ex.PW43/A mentions that the exhibits sent to laboratory have
been sealed with the seal of VLN FSL Delhi. The above statement is
contrary to the deposition of IO PW-48 that he had sealed the said voice
samples while giving them to FSL. Further, PW-43 in his evidence has
not deposed about the Ex.Q1 and Ex.S1 were so sealed with the seal of
FSL. Hence the return of the above exhibit with the due seal of FSL is
also not proved on record by the prosecution. The result of examination
mentions that the acoustic analysis of the speech was done and the
acoustic cues and other linguistic and phonetic features were found
similar. However it is not detailed that what were those acoustic cues and
what were that linguistic and phonetic features which were found similar.
Acoustic cues are characteristic pattern in a speech signal which are used
to infer the underline phoneme sequence in an utterance. This can be how
long a vowel sound is held in the pronunciation of a word and it also
includes the height of the vowel. The measurement can be showed by
physical representation on a paper that which of the word are most tense
and which of the word are most lax. The graphic illustrations of
spectrograph could have been done. In fact what has been done in the
evidence of PW-43 is an opinion given by the witness and not the
circumstances or the specific evidence on the basis of which this opinion
was formed. The opinion without necessary details that on what scientific
circumstance it is based upon cannot be called as primary evidence. The
primary evidence is not brought by the prosecution on record. The seal of
FSL are also not proved on Ex.Q1 and Ex.S1 during evidence of PW-43.
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In such view of the matter it cannot be said that PW-43 is able to prove
similarity of voice in Ex.Q1 and Ex.S1. Therefore it is held that
prosecution has failed to prove similarity in voice in Ex.Q1 and Ex.S1
and therefore it cannot be said conclusively that this voice pertains to
accused Sandeep Kumar. It is laid down under Section 65B of Indian
Evidence Act, 1872 that any information in any electronic record in an
optical or magnetic media produced by computer shall be deemed to be a
document and therefore certificate under Section 65B of Indian Evidence
Act, 1872 is necessary in above respect. PW-3 has not stated in his
statement under Section 161 Cr. P.C. that he had heard voice recording
though he has deposed in evidence so. PW-3 has also not deposed that the
ransom call was received by him. When the ransom was not received by
PW-3 and they were heard by PW-6 or PW-9 then there was no reason
with PW-3 to hear the voice recording and identify the voice of accused
Sandeep Kumar. However on the basis of identification of voice by PW-3
the sampling was done through FSL. In such view of the matter it is held
that the prosecution has failed to prove untempered transferring of voice
recording data through different channels first from Idea Cellular
Company to SI Rajesh and then from SI Rajesh to PW-48 and thereafter
such examination by FSL of Ex.Q1 and Ex.S1. The transcript of voice
recording though claimed to have been prepared by PW-48 is not proved
on record. The PW-48 in cross-examination has deposed that he did not
examine the mobile phone instrument on which the ransom call was
received and the CDR and CAF of the mobile phone were not collected
by PW-48. In such view of the matter it is held that the prosecution has
failed to conclusively proved that the voice on Ex.Q1 and Ex.S1 belongs
to the accused Sandeep.
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171. In view of the discussion held above it is found that the
prosecution has failed to prove that accused person have committed
offence under Section 364/419/468/471/302/201/120B IPC. Hence
accused no. 1 Gautam Jain, accused no. 2 Sandeep Kumar, accused no. 3
Mukesh Kumar Sharma and accused no. 4 Sandeep Kumar @ Sunny are
acquitted of the offence charged against them. Accordingly, all the
accused person stands acquitted. The earlier personal bond and surety
bond of all the accused person are cancelled and surety stands discharged
and documents, if any, be returned to the surety and endorsement on
security documents is allowed to be de-endorsed as per rules. In terms of
Section 437A Cr. PC, all accused person have furnished their bail bond as
directed which will be in force for period of six months from the date of
this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 17.01.2025. PRAKASH PRAKASH NAHAR
Date: 2025.01.17
NAHAR 11:24:07 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
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FIR No. 383/2013
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