Delhi High Court
Tejinder Virdi @ Dolly vs State on 16 December, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 30th October, 2009
Judgment Delivered on: 16th December, 2009
+ CRL.A. 237/2008
TEJINDER VIRDI @ DOLLY ..... Appellant
Through: Pt.R.K.Naseem and Mr.Nitin
Tittal, Advocates.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, Advocate.
+ CRL.A. 415/2008
ROMESH SHARMA ..... Appellant
Through: Mr.Ram Jethmalani,
Sr. Advocate with
Mr.Jaswinder Singh and
Mr. Pranav, Advocates.
versus
THE STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
+ CRL.A. 459/2008
SURINDER MISHRA ..... Appellant
Through: Mr.O.P.Malviya, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
+ CRL.A. 536/2008
HEM CHAND @NANI ..... Appellant
Through: None.
versus
Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 1 of 118
STATE OF NCT OF DELHI ..... Respondent
Through: Mr.Pawan Sharma, APP.
+ CRL.A. 604/2008
SANT RAM ..... Appellant
Through: Ms.Anu Narula, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
+ CRL.A. 639/2008
RAMESH @ BOBBY @ RAJESH @ AJAY
@ RAJU ..... Appellant
Through: Ms.Anu Narula, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J.
1. The above captioned appeals arise out of the impugned
judgment dated 15.02.2008 and the order on sentence dated
18.02.2008 passed by the learned Additional Sessions Judge in
Sessions Case No.14/1999 arising out of FIR No.188/1999
registered at Police Station Mehrauli. By virtue of the
impugned judgment, appellants Surinder Mishra, Tejinder Virdi
@ Dolly, Romesh Sharma and Hem Chand @ Nani, Sant Ram
and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju have been
convicted for the offence punishable under Section 120-B IPC
read with Section 302 IPC. Additionally, appellants Hem Chand
@ Nani, Sant Ram and Ramesh @ Bobby @ Rajesh @ Ajay @
Raju have been convicted for the offence punishable under
Section 302 IPC read with Section 34 IPC. With respect to the
offence punishable under Section 120-B IPC read with Section
302 IPC, appellants Surinder Mishra and Tejinder Virdi have
been sentenced to undergo imprisonment for life and pay a
fine in sum of Rs.5,000/-, in default to undergo SI for three
months; whereas Romesh Sharma has been sentenced to
undergo imprisonment for life and pay a fine in sum of
Rs.50,000/-, in default to undergo SI for six months. With
respect to the offence punishable under Section 302 IPC read
with Section 34 IPC, appellants Hem Chand @ Nani, Sant Ram
and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju have been
sentenced to undergo imprisonment for life and pay a fine in
sum of Rs.1,000/-, in default to undergo SI for one month. The
learned trial court did not award any sentence to the
appellants Hem Chand @ Nani, Sant Ram and Ramesh @
Bobby @ Rajesh @ Ajay @ Raju for the offence punishable
under Section 120-B IPC read with Section 302 IPC on the
ground that they have been already sentenced for major
offence punishable under Section 302 IPC read with Section 34
IPC.
2. The case set up by the prosecution against the
appellants is that in the afternoon of 20.03.1999 Inspector
Jagdish Meena PW-36, along with some other police officials
was patrolling in the area around Chattarpur Mandir when at
around 2.00 P.M. Ram Achal Tiwari PW-16, met Inspector
Jagdish Meena and informed him that a lady has been
murdered at Jai Mata Di farmhouse situated near Chattarpur
Mandir. Inspector Jagdish Meena immediately made a
telephone call to police station Mehrauli and gave the
aforesaid information to SI Sunil Lamba PW-6, who recorded
DD No.12A, Ex.PW-6/4.
3. Simultaneously, Inspector Jagdish Meena PW-36,
transmitted the aforesaid information to SI J.S.Joon PW-35 and
Const. Garib Chand PW-20. Thereafter Inspector Jagdish Meena
along with Ram Achal Tiwari PW-16, proceeded to Jai Mata Di
farmhouse where he saw that a lady named Kunjum
(hereinafter referred to as the "Deceased") was lying dead on
the ground. Inspector Jagdish Meena noticed that the shirt
worn by Ram Achal Tiwari was stained with blood and
therefore, he seized the same vide memo Ex.PW-16/1. On
inspecting the spot, Inspector Jagdish Meena found a slip of
paper on which the telephone number 7166786 was written.
4. On receiving the information about the incident in
question, SI J.S. Joon PW-35, Const. Garib Chand PW-20 and HC
Satish Chand PW-22 reached the spot. Inspector Jagdish
Meena PW-36, handed over the slip of the paper found at the
spot to SI J.S.Joon PW-35, upon which he and HC Satish Chand
PW-22, proceeded to make inquiries in respect of the
telephone number written on the said slip.
5. In the meantime, a telephone call was received in the
police control room in connection with the incident in question
pursuant to which Lady Constable Milyani PW-29, made an
entry in the PCR form Ex.PW-29/1 at 2.53 P.M. on 20.03.1999,
to the effect that a telephonic information was received from a
lady named Rani having telephone number 6425714 informing
that a man named Romesh Sharma has murdered a girl at Jai
Mata Di farmhouse. HC Joseph PW-3, recorded the information
contained in the PCR form Ex.PW-29/1 in the log book PW-3/1.
6. Inspector Jagdish Meena PW-36, recorded the statement
Ex.PW-6/1 of Ram Achal Tiwari PW-16, and made an
endorsement Ex.PW-6/1A thereon, and at around 03.00 P.M.
on 20.03.1999 forwarded the same through Const. Garib
Chand PW-20, to the police station for the purposes of
registration of an FIR. Const. Garib Chand took the
endorsement Ex.PW-6/1A to SI Sunil Lamba PW-6, who
recorded the FIR No.188/99 Ex.PW-6/2 at 03.20 P.M. on
20.03.1999. SI Sunil Lamba contemporaneously prepared DD
entry no.14A Ex.PW-6/5, recording the timing of the
registration of the FIR Ex.PW-6/2. Thereafter at around 04.35
P.M. SI Sunil Lamba handed over a copy of the FIR Ex.PW-6/2
to Const. Khushi Ram PW-26, for the purposes of delivery of
the FIR to the Area Magistrate and senior police officers. SI
Sunil Lamba prepared DD entry no.15A Ex.PW-6/6, recoding
the timing of the delivery of the FIR to the Area Magistrate and
senior police officers.
7. In his statement Ex.PW-6/1, Ram Achal Tiwari PW-16,
stated that he works as a caretaker at Jai Mata Di farmhouse
since last two years and that he resides in the said farmhouse.
The said farmhouse is owned by Romesh Sharma who is
lodged in prison since last few months and that Surinder
Mishra who is the nephew of Romesh Sharma takes care of the
farmhouse in the absence of Romesh Sharma. Today, at
around 08.00 A.M. Surinder Mishra came to the farmhouse and
met his associates Nani, Ramesh @ Rajesh, Rakesh and
Pramod. The aforesaid persons were employed by Surinder
Mishra to work at the farmhouse since last about 1 ½ months.
After about 20 minutes Surinder Mishra told him that Kunjum
madam would come to the farmhouse today so he should
clean the temple and help the deceased in performing puja.
Thereafter Surinder Mishra left from there. At about 11.30 A.M.
two girls named Dolly and Sonu along with one Pandit
Chavidas who resides at Lodhi colony came to the farmhouse
in a car and told him that he should open and clean the
temple; that a puja will be performed at the temple; that they
are going to the market to purchase the things required for
performing the puja and that they would return in a short
while. The said girls had come with Surinder Mishra to the
farmhouse on various occasions. Thereafter at about 12.00
P.M. when he returned to the farmhouse after purchasing
ration he saw that Kunjum Madam had come there in her
Toyota car bearing No.DL-3C-B-9399 and that she was
standing near her car. Kunjum told him that the tyre of her car
was punctured and that he should bring a mechanic upon
which he brought a mechanic from a shop situated outside the
farmhouse. After inspecting the car the mechanic left the
farmhouse to bring some tools. At that very moment, Kunjum
Madam told him that he should take the keys of kothi from her
and open the same, upon which, accompanied by Kunjum he
went towards the kothi and opened the door of the kothi. He
and Kunjum went inside the kothi and Kunjum saw the puja
room after which they started going upstairs from the
basement of the kothi. At around 12.30 P.M. Kunjum reached
the main gate of the kothi and he was climbing the stairs when
suddenly the four boys who used to reside in the farmhouse;
namely, Nani, Ramesh @ Rajesh, Rakesh and Pramod @
Prahalad @ Bobby entered the kothi. Nani and Rakesh were
having knives in their hands whereas Pramod and Ramesh
were having bottle and revolver respectively in their hands. On
entering the kothi the aforesaid persons told Kunjum that „how
dare did she enter the kothi‟. Ramesh and Rakesh pushed
Kunjum, upon which she fell down on the floor. Thereafter Nani
gave knife blows on the neck, chest and forehead of Kunjum
and Ramesh hit the bottle on the chest of Kunjum. Pramod
showed him the revolver and threatened him by saying that he
should not come upstairs otherwise they would shoot him.
After having murdered Kunjum the aforesaid four boys took
the black colored handbag and mobile phone of Kunjum and
fled from the kothi. Having witnessed the incident he got
scared and came out of the kothi. After telling the other
security guards present in the farmhouse about the incident he
went out of the farmhouse to give a telephone call to the
police. When he could not contact the police over telephone he
ran to Chattarpur temple where he informed Inspector Jagdish
Meena about the incident. When the aforesaid four boys were
inflicting knife blows on the person of Kunjum the shirt worn by
him got stained with blood of Kunjum. He removed the said
shirt and the same was seized by the police. The aforesaid four
boys had murdered Kunjum and that they had fled from the
spot after taking the black colored bag and mobile phone of
Kunjum.
8. Inspector Jagdish Meena PW-36, commenced the spot
investigation after the registration of the FIR Ex.PW-6/2. He
noticed that the ground where the deceased was lying dead
was stained with blood and that a slipper was lying near the
body of the deceased. He lifted blood sample from the ground
as recorded in the memo Ex.PW-20/2. He also seized the
aforesaid slipper vide memo Ex.PW-20/1. Thereafter he
prepared rough site plan Ex.PW-36/1 of the spot.
9. Thereafter the crime team reached the spot. SI Mohar
Singh PW-14, Finger Print Expert, inspected the spot. However
no chance prints could be detected therein. Const.Brijbir Singh
PW-2, Photographer, took 7 photos Ex.PW-2/1 to Ex.PW-2/7 of
the spot; negatives whereof are Ex.PW-2/8 to Ex.PW-2/14.
10. In the meantime, a telephone call was received at the
police control room in connection with the incident in question
pursuant to which Lady Constable Milyani PW-29, made an
entry in the PCR form Ex.PW-29/1 at 2.53 P.M. on 20.03.1999,
to the effect that a telephonic information was received from a
lady named Rani having telephone number 6425714 informing
that a man named Romesh Sharma has murdered a girl at Jai
Mata Di farmhouse.
11. SI J.S.Joon PW-35 and HC Satish Chand PW-22, made
enquiries with respect to telephone number 7166786 and
came to know that said number is installed at house bearing
municipal No.21/24, Mangol Puri, New Delhi. The aforesaid
police officers went to the said house where they met one boy
named Asal who told them that a man named Rakesh used to
live at the said house and that presently he is residing at B-16,
Staff Quarters, Fire Station, Moti Nagar. Thereafter the said
police officers went to the address provided by Asal but they
could not find Rakesh there.
12. On the same day i.e. 20.03.1999 Inspector Jagdish Meena
PW-36, recorded the statements of Sunil Kumar PW-15, Hari
Chand PW-17, Pandit Deepak Sharma PW-18 and Dilbag Singh
PW-19, under Section 161 Cr.P.C.
13. In his statement Ex.PW-15/DA, Sunil Kumar stated that
he is employed as a security guard at Jai Mata Di farmhouse.
Apart from the guards, seven persons namely Nani, Rakesh,
Ramesh @ Bobby, Sant Ram, Balle, Babu and Guddu reside in
the said farmhouse. The gardener and the other security
guards had told him that the aforesaid seven persons were
employed by Surinder Mishra. Whenever Surinder Mishra
visited the farmhouse he used to talk to said seven persons in
a closed room. Surinder Mishra came to the farmhouse in the
evening of 19.10.2003 and consumed liquor with the aforesaid
persons till late in the night. In the morning of 20.10.2003 at
about 8.00 A.M. Surinder Mishra came to the farmhouse,
talked to Nani and his associates for about ten minutes and
thereafter left from there in a car. Thereafter at around 11.30
A.M. two madams and one priest came at the farmhouse and
left from there after telling Tiwari (Ram Achal Tiwari) about the
performance of a puja at the farmhouse. The aforesaid three
persons did not return to the farmhouse. Thirty minutes
thereafter the deceased came there in a car, one tyre of which
was punctured. Madam asked Tiwari to call a mechanic
pursuant to which Tiwari brought a mechanic to the
farmhouse. Thereafter Tiwari and the deceased went inside
the kothi pursuant to which Nani, Rakesh, Ramesh and Sant
Ram also went inside the kothi. After about ten minutes the
aforesaid four persons came out of the kothi and left from the
farmhouse along with their three associates who were
standing at the gate of the farmhouse. Sometime thereafter,
Tiwari who was in a perplexed condition came out and
informed him and other security guards that the aforesaid
seven persons have murdered the deceased with knives.
Tiwari went out of the farmhouse to inform the police that he
and other security guards saw the deceased lying dead in a
pool of blood near the gate of the kothi.
14. In his statement Ex.PW-17/DA, Hari Chand stated the
facts which were already stated by Sunil Kumar in his
statement Ex.PW-15/DA.
15. In his statement Ex.PW-19/DA, Dilbag Singh also stated
the facts which were already stated by Sunil Kumar in his
statement Ex.PW-19/DA. Additionally, he stated that on the
evening of 19.10.2003 when Surinder Mishra had come to the
farmhouse he heard Surinder Mishra telling Nani and his
associates that the deceased would surely come to the
farmhouse tomorrow, that they should positively eliminate the
deceased and that he would tell them the future course of
action later to which Nani and his associates replied that they
would finish the work assigned to them.
16. In his statement Ex.PW-18/DA Pandit Deepak Sharma
stated that he used to perform puja at the residence of
Romesh Sharma. On 19.03.1999 he along with Sonu and Dolly
went to C-30, Mayfair Garden, the residence of Romesh
Sharma, and performed puja there. On the next day he along
with Sonu and Dolly went to Jai Mata Di farmhouse where they
were met by one Tiwari. Dolly told Tiwari to clean the temple,
that they are going to purchase things required for performing
puja and that they would return shortly. When they reached at
the gate of the farmhouse after making purchases Sonu and
Dolly said that the police is present at the farmhouse and
thereafter they drove the car towards C-30, Mayfair Garden.
Dolly and Sonu dropped him at Main Road, Khelgaon
wherefrom he went to the temple where he used to reside.
17. Inspector Jagdish Meena recorded the supplementary
statement Ex.PW-16/DA of Ram Achal Tiwari wherein he stated
that 1½ months prior to the day of the murder of the deceased
one Subba Rao forcibly tried to take possession of Jai Mata Di
farmhouse due to which Surinder Mishra had employed Nani
and his associates for safety of the farmhouse. Surinder Mishra
used to visit the farmhouse almost every day and consume
liquor with Nani and his associates. The boy who was referred
by him as Prahlad @ Pramod in his earlier statement Ex.PW-
16/A is also known by the name of Sant Ram. Surinder Mishra
had often told him that his uncle Romesh Sharma is very
distressed these days as the deceased is causing him lot of
trouble. The demands of the deceased are increasing day by
day despite the fact that Romesh Sharma has given her the
house bearing municipal No.C-31, Hauz Khas. One day
Surinder Mishra told him that Romesh Sharma would give all
his properties to the deceased despite the fact that he, Dolly
and Sonu are acting as parokars of Romesh Sharma. At the
time of the murder of the deceased, Nani, Ramesh, Rakesh
and Sant Ram had gone inside the kothi while Balle, Guddu
and Babu were standing at the gate of the farmhouse. Dilbag
Singh had told him that Balle, Guddu and Babu were standing
at the gate of the farmhouse at the time of the murder of the
deceased.
18. On the next day i.e. 21.03.1999 the body of the
deceased was sent to mortuary at AIIMS, where Dr.Lal Rozama
conducted the post-mortem of the deceased at 11.30 A.M. and
prepared the post-mortem Ex.PW-31/A which records following
ante-mortem injuries on the person of the deceased:-
"1. Incised wound 3 x 1 cm x subcuteuors depth on
left abdomen 6 cm from midline 13 cm from ant
superior iliac spine
2. Incised cut wound 3.5 x 1 cm x 5 c depth 3 cm
from midline & 13 cm from left nipple on left
abdomen
3. Incised stab wound 2.5 x 1 cm x 5 cm deep on
left breast 7 cm from nipple
4. Incised stab wound 4 cm x 1 cm x 5 cm depth
on left breast 1 cm below nipple
5. Stab wound incised 3.5 x 1 cm x chest cavity
depth on 1 cm above left nipple directed
downwards and (illegible) piercing tab ant left lung
at (illegible) depth
6. (Illegible) cut wound long x 5 cm depth
(illegible)
7. Incised wound 3 x 1 cm x bone depth left arm
laterally 6 cm above elbow (illegible)
8. Incised cut wound 7.5 cm long x tracheal depth
horizontally on neck 4 cm from suprsternal notch
9. Cut wound 6 cm long horizontal placed on front
of suprsternal notch and 6 cm from chin trachea
horizontally
10. Incised cut wound 6 cm x 2 cm x bone depth
(illegible) of outer table of frontal bone (skull)
horizontally
11. Incised wound 7 cm long x 1 cm x bone depth
(illegible) middle of left (illegible) linear fracture 3
cm long"
19. The post-mortem report further records that the death of
the deceased was caused due to the cumulative effect of the
afore-noted injuries found on the person of the deceased. That
injuries Nos. (5), (10) and (11) found on the person of the
deceased were individually sufficient to cause death in the
ordinary course of nature and that they were caused by sharp-
edged stabbing weapon.
20. After the post-mortem, the doctor handed over the
clothes and blood sample of the deceased on a gauze to
Inspector Jagdish Meena PW-36, who seized the same vide
memo Ex.PW-36/3.
21. Since the investigation so far conducted in the case was
pointing towards the complicity of Surinder Mishra, Tejinder
Virdi @ Dolly, Jaspreet Virdi @ Sonu, Hem Chand @ Nani, Sant
Ram @ Pramod @ Prahlad and Ramesh @ Rajesh @ Ajay @
Raju @ Bobby in the murder of the deceased, the police set
out to apprehend them.
22. In the night of 22.03.1999 Inspector Tarun Kumar PW-12,
Crime Branch, Ahmedabad, received secret information that
accused Surinder Mishra is staying at Kapadia Guest House
whereupon he went there and learnt that Surinder Mishra is
staying at the said guest house under the name of Raj Kumar
Bhatia. Inspector Tarun Kumar apprehended Surinder Mishra
and immediately sent the information of the apprehension of
Surinder Mishra to police station Mehrauli pursuant to which
Inspector Jagdish Meena PW-36, accompanied by SI Vijay
Kumar PW-32, proceeded to Ahmedabad. On being
apprehended and interrogated by Inspector Tarun Kumar PW-
12, Surinder Mishra made a disclosure statement Ex.PW-12/A
wherein he disclosed that he, Romesh Sharma, Tejinder Virdi
@ Dolly, Jaspreet Virdi @ Sonu hatched a conspiracy to murder
the deceased and that Hem Chand @ Nani, Sant Ram @
Pramod @ Prahlad and Ramesh and Rakesh murdered the
deceased in pursuance of the said conspiracy. He also
disclosed that his mobile number is 9810114857; that the
mobile number of Tejinder Virdi @ Dolly is 9811024145 and
that the mobile numbers of Jaspreet Virdi @ Sonu are
9810123175 and 9810137333. He further disclosed that
Tejinder Virdi @ Dolly gave a call on his mobile phone in the
afternoon of 20.03.1999 after the murder of the deceased.
Thus, even Romesh Sharma became a suspect.
23. On reaching Ahmedabad, Inspector Jagdish Meena PW-
36, obtained the register of guests maintained at Kapadia
Guest House from Amara Bhai PW-5, the manager of the said
guest house, and seized the portion Ex.PW-5/1 of the register
pertaining to the stay of Surinder Mishra at the said guest
house vide memo Ex.PW-36/4. (A perusal of the document
Ex.PW-5/1 shows that one Raj Kumar Bhatia checked in
Kapadia Guest House at 07.30 P.M. on 22.03.1999). Inspector
Jagdish Meena also recorded the statement Ex.PW-5/DA of
Amara Bhai PW-5 wherein he stated that Surinder Mishra is the
person who was staying as Raj Kumar Bhatia at Kapadia Guest
House. He formally arrested Surinder Mishra in the instant FIR
as per arrest memo Ex.PW-32/1.
24. On 25.03.1999 the police recorded the statement Ex.PW-
30/DA of Vikram Singh PW-30, wherein Vikram Singh stated
that he is running a security agency under the name and style
of Washtower Security Agency and that he had deployed the
security guards at Jai Mata Di farmhouse. (It may be noted
here that it is not clear as to who is the scribe of the statement
Ex.PW-30/DA).
25. On the same day i.e. 25.03.1999 Inspector Jagdish Meena
seized three letters Ex.PW-27/B, Ex.PW-28/B and Ex.PW-28/C
from Pawan Budhiraja PW-28, the brother of the deceased,
vide memo Ex.PW-28/D.
26. The letter Ex.PW-27/B is an incomplete letter purportedly
written by the deceased to Romesh Sharma and the same
reads as under:-
"Sweetheart I do not know what to write and what
not to write you are going on saying that go there
and do pooja these people are playing tricks and
they are not giving the keys to me when pawan
asked surinder he said I have given to dolly and
dolly says the keys are with surinder and your so
called sister who calls herself Mrs.Sharma and Sonu
Sharma asked pawan to convey the message that
C-30 we are doing the pooja and still they said we
don‟t have the keys. You don‟t know what all is
going on please your intention was that puja should
be performed and these people have at least
performed puja at C-30 rest I spoke to Surinder and
I have told him that „you do not want to give keys I
myself do not want to take the keys. You could have
stood near the temple and that I would have left
after performing the puja. You could have done this
favour not for me but at least for your uncle‟. I have
also told goddess that she should herself call you
for performance of puja as these people do not
allow the performance of puja. You should not worry
goddess is seeing everything. She will accept your
prayers form wherever you are performing puja. It is
quite possible that if I would have performed puja
these people would have created some obstacle
and the same would not have been a good thing"
(Translated Version) (Emphasis Supplied)
27. The letter Ex.PW-28/B purportedly written by Romesh
Sharma to the deceased reads as under:-
"Jai Mata di
I pray to Ma sherawali to give you all the happiness
and long life so I can feel protected from this wild
world. I am doing NavRATRA Pooja and keeping all 9
days fast like before but this time you are not with
me to do the pooja but next NavRATRA Ma DURGA
will bless us to be together and will do the
NAVRATRA FAST & pooja in our JAI MATA DI
Farmhouse together. Please do all your pooja
without any tension and you can feel that I am
always with you all the time and sitting next to you
whenever you are doing your pooja to ma sherawali
in NAVRATRA otherwise also I am always with you in
every moment you can feel my presence. Please
take care of your health and yourself completely.
You do not have to worry for anything still I am alive
whatever you need please let me know I will try to
do whatever I can do in this situation. Please during
the NAVRATA I request you to take one Indian car
whichever you like and think is better car but take
the smaller size so that you can find easy for
parking. You should take the cheque from your-
Dada ji and take on the instalment basis. But you
must organise during the NAVRATRA so that Ma
sherawali will bless you for everything. This will give
me better feeling that you are having your own
transport and you are comfortably going to visit
Gurudwara and temple for pooja. Please forgive me
for not to organize imported car for you as I lost all
the interest in luxury cars. Your all the imported car
are getting release very soon but I do not want to
advise you to drive them now because they are all
unlucky for us. Will start everything from new indian
car new indian life therefore I request you to take
new indian car for time being, if every Ma sherawali
mata will give me opportunity to come out from this
hell then I will try to look after you well I want you
to have everything in your life. You had everything
but suddenly God taken away everything of yours
and you lost all your saving your jewellery your
happy life and you are living alone without me.
Please forgive me for my helplessness not doing
any living for you in your suffering. Please write me
about your mummy health because I am quite
worried when pawan informed me that she was very
sick. I pray to sherawali mata for her good health
and for her long life. She is the only person behind
me who takes your care and provide you full
protection from this wild world. I will be grateful to
God to give all the happiness to your mummy and
Daddy. Please convey my pranam to mummy and
Daddy. I always need their blessing to come out
from this hell. I want to request you to ask your
mummy to start the Hauz Khas H. Centre as soon as
possible so that you can have some permanent
income and you can feel secure and your family
members can keep themselves occupied. But if you
feel proper and correct then only you take the
decision I also want to request you to shift to Hauz
khas if you feel there is no other problem. I want to
request you to go C-30 mayfair Garden and Jai mata
Di farmhouse during the NAVRATRA and do the
pooja like before keep one set of the key of all the
places. Take care of yourself yours Romesh Sharma
Request you to do the regular ..... Jai Mata Di
farmhouse ...May fair garden In Navratra
Please let me know if you are having all the key of
JAI MATA DI FARMHOUSE and of C-30 MAY FAIR
GARDEN
If you are not having the key then I will ask surinder
to send for you
I hope you must be having key of Jai mata Di FARM
and of C-30 May Fair Garden ....." (Emphasis
Supplied)
28. The letter Ex.PW-28/C purportedly written by Romesh
Sharma to the deceased reads as under:-
"Dearest Kunjum
JAI MATA DI
I pray to sherawali mata to give you all the
happiness and long life please I request you to do
the regular pooja of NAVRATRA in JAI MATA DI
Farmhouse and in C.30 MAY FAIR GARDEN and C.31
Hauz khas if you are not having the key then I will
ask the surinder or tiwari to send it you by today
itself. But you should try to contact Pandit ji and
request him to start coming every day to do the
regular pooja. But at least you should call him for
NAVRATRA pooja otherwise you can contact some
other Pandit ji to do all this pooja. You should keep
all this key of the house of one set so if ever you
want to go home you do not have to ask any
person. I again request you to buy one new indian
car during the NAVRATRA so that I can feel little
better here if you need anything else then I will
write letter to Babu you can take from there you do
not worry for anything I want to know about Pawan
computer if he need for his work let me know I will
organize for him you keep yourself occupied in
pooja and path ma sherawali will listen to us very
soon. I got full faith in God and Goddess and in you
that very soon I will be out from all this mess. I want
to devote all my life to make temple and Ashram
like Baba Nagpal if God will forgive me opportunity
to do this noble cause. Please take care of yourself.
I am always for you. (Emphasis Supplied)
Yours
Romesh Sharma"
29. On 25.03.1999 Inspector Surinder Sharma PW-37, took
over the investigation of the case. Accompanied by Inspector
J.S. Joon PW-35 and Lady Constable Milyani PW-21, he went to
the residence of Tejinder Virdi @ Dolly and Jaspreet Virdi @
Sonu and arrested them as recorded in the arrest memos
Ex.PW-35/1 and Ex.PW-35/2 respectively. At the time of her
arrest, as recorded in the arrest memo Ex.PW-35/3 a mobile
phone with a SIM Card pertaining to the mobile number
9811024145 was recovered from Tejinder Virdi @ Dolly. On
being interrogated by Inspector Surinder Sharma PW-37, in the
presence of Inspector J.S. Joon PW-35 and Lady Constable
Milyani PW-21, Tejinder Virdi @ Dolly made a disclosure
statement Ex.PW-21/2 wherein she confessed to the
conspiracy and disclosed that her mobile number is
9811024145 and that Vikram Singh gave a call on her mobile
in the afternoon of 20.03.1999 to inform her about the murder
of the deceased pursuant to which she contacted Surinder
Mishra to inform him about the same and that the mobile
number of Surinder Mishra is 9810114857.
30. On being interrogated by Inspector Surinder Sharma PW-
37, in the presence of Inspector J.S. Joon PW-35 and Lady
Constable Milyani PW-21, Jaspreet Virdi @ Sonu made a
disclosure statement Ex.PW-21/1 wherein she also admitted to
the conspiracy.
31. On 27.03.1999 Inspector J.S.Joon PW-35, took over the
investigation of the case.
32. On 12.04.1999 Inspector V.N. Dixit PW-25, arrested
accused Sant Ram in connection with FIR No.58/99 under
Section 364 IPC registered at District Sultanpur, UP. On receipt
of information about the apprehension of Sant Ram, Inspector
J.S. Joon PW-35, proceeded to District Sultanpur and formally
arrested him in the present case on 26.04.1999 as recorded in
the arrest memo Ex.PW-35/3. On being interrogated by
Inspector J.S.Joon PW-35, Sant Ram made a disclosure
statement Ex.PW-35/4 wherein he disclosed that Romesh
Sharma, Surinder Sharma, Tejinder and Jaspreet Virdi hatched
a conspiracy to murder the deceased and that he, Hemchand
@ Nani, Ramesh @ Bobby, Ganga Singh @ Guddu, Devender
@ Balle, Rakesh and Sudesh @ Babu murdered the deceased
in pursuance of the said conspiracy.
33. In the meantime, Inspector J.S. Joon PW-35, obtained an
application Ex.PW-27/A purportedly submitted by the deceased
at MTNL from Pawan Budhiraja PW-28, the brother of the
deceased, and seized the same vide memo Ex.PW-28/A. The
application Ex.PW-27/A dated 15.03.1999, records that the
deceased has shifted to the house bearing municipal no.C-31,
Hauz Khas, New Delhi and that her old telephone connection
be restored at her new residence.
34. On basis of secret information, Inspector J.S. Joon PW-35,
accompanied by HC Satish Chand PW-22, arrested accused
Hemchand @ Nani from the park at P-Block, Mangol Puri on
09.05.1999 as recorded in the arrest memo Ex.PW22/5. On
being interrogated by Inspector J.S.Joon PW-35 in the presence
of HC Satish Chand PW-22, Hemchand @ Nani made a
disclosure statement Ex.PW-22/1 wherein he disclosed that
Romesh Sharma, Surinder Sharma, Tejinder and Jaspreet Virdi
hatched a conspiracy to murder the deceased and that he,
Rakesh, Guddu, Balle, Ramesh @ Bobby murdered the
deceased in pursuance of the said conspiracy. He further
disclosed that he had removed the gold chain, mobile phone
and black bag of the deceased after murdering her and that he
can get the same recovered. Thereafter he led the aforesaid
police officers to his residence and got recovered a gold chain
from a cupboard which was seized vide memo Ex.PW-22/10.
35. On 09.05.1999 SI Kanwar Lal PW-24, arrested accused
Ramesh in connection with the FIR No.474/99 registered under
Sections 457/380/411 IPC. Inspector J.S.Joon PW-35, formally
arrested accused Ramesh in the present case on 11.05.1999
as recorded in the arrest memo Ex.PW-22/6. On being
interrogated by Inspector J.S.Joon PW-35 in the presence of HC
Satish Chand PW-22, Ramesh made a disclosure statement
Ex.PW-22/4 wherein he disclosed that Romesh Sharma,
Surinder Sharma, Tejinder and Jaspreet Virdi hatched a
conspiracy to murder the deceased and that he, Hemchand @
Nani, Ramesh @ Bobby, Ganga Singh @ Guddu, Devender @
Balle, Rakesh and Sudesh @ Babu murdered the deceased in
pursuance of the said conspiracy.
36. On 25.05.1999 HC Rameshwar Prasad PW-23, obtained
the applications Ex.PW-23/1, Ex.PW-1/2, Ex.PW-1/3, Ex.PW-1/4,
Ex.PW-1/5, Ex.PW-1/6, Ex.PW-1/7, Ex.PW-23/18, Ex.PW-23/19
and Ex.PW-23/33 filed by various persons including the
accused Surinder Mishra, Tejinder and Jaspreet Virdi in the
court of Metropolitan Magistrate for purposes of meeting
accused Romesh Sharma in the court during the hearing of his
case from the court of Metropolitan Magistrate and handed
over the same to Inspector J.S. Joon PW-35, who seized the
same vide meme Ex.PW-23/34.
37. A perusal of the application Ex.PW-23/1 records that
accused Surinder Mishra, Tejinder and Jaspreet Virdi and
Pawan Budhiraja, the brother of the deceased, made a request
before the Metropolitan Magistrate to meet Romesh Sharma in
the court on 23.02.1999, which request was allowed by the
Magistrate; application Ex.PW-1/2 records that accused
Surinder Mishra and Jaspreet Virdi and Pawan Budhiraja, the
brother of the deceased, made a request before Metropolitan
Magistrate to meet Romesh Sharma in the court on
16.02.1999, which request was allowed by the Magistrate;
application Ex.PW-1/3 records that Amritlal Budhiraja, the
father of the deceased, and Vikram Singh PW-30, made a
request before Metropolitan Magistrate to meet Romesh
Sharma in the court on 08.04.1999, which request was allowed
by the Magistrate; application Ex.PW-1/4 records that accused
Surinder Mishra, Tejinder and Jaspreet Virdi made a request
before Metropolitan Magistrate to meet Romesh Sharma in the
court on 15.03.1999, which request was allowed by the
Magistrate; application Ex.PW-1/5 records that Jaspreet Virdi
made a request before Metropolitan Magistrate to meet
Romesh Sharma in the court on 16.02.1999, which request
was allowed by the Magistrate; application Ex.PW-1/6 records
that accused Surinder Mishra and Jaspreet Virdi made a
request before Metropolitan Magistrate to meet Romesh
Sharma in the court on 18.03.1999, which request was allowed
by the Magistrate; application Ex.PW-1/7 records that accused
Surinder Mishra and Jaspreet Virdi and Pawan Budhiraja, the
brother of the deceased, made a request before Metropolitan
Magistrate to meet Romesh Sharma in the court on
16.02.1999, which request was allowed by the Magistrate;
application Ex.PW-23/18 records that Amritlal Budhiraja, the
father of the deceased, made a request before Metropolitan
Magistrate to meet Romesh Sharma in the court on
29.01.1999, which request was allowed by the Magistrate;
application Ex.PW-23/19 records that accused Tejinder and
Jaspreet Virdi and Pawan and Amritlal Budhiraja, the brother
and father respectively of the deceased, made a request
before Metropolitan Magistrate to meet Romesh Sharma in the
court on 30.01.1999, which request was allowed by the
Magistrate and application Ex.PW-23/33 records that accused
Tejinder and Jaspreet Virdi made a request before Metropolitan
Magistrate to meet Romesh Sharma in the court on
05.01.1999, which request was allowed by the Magistrate.
38. On 29.05.1999 test identification proceedings of the
chain recovered at the instance of accused Hemchand was
conducted by Rajneesh Kumar Gupta PW-10, Metropolitan
Magistrate. As per the report Ex.PW-10/2 of the TIP, Rani
Budhiraja PW-27, the mother of the deceased, identified the
chain recovered at the instance of accused Hemchand as the
chain worn by the deceased on the day of her murder.
39. On 07.06.1999 Inspector J.S. Joon PW-35, formally
arrested accused Romesh Sharma in the present case. On
08.06.1999 HC Balbir Singh PW-33, obtained two specimens of
the handwriting of Romesh Sharma Ex.PW-33/1 and Ex.PW-
33/2 and handed over the same to Inspector J.S. Joon who
seized the same vide memo Ex.PW-33/3.
40. On 11.06.1999 Inspector J.S. Joon PW-35, sent the letters
Ex.PW-28/B and Ex.PW28/C purportedly written by Romesh
Sharma to the deceased and the specimen writing Ex.PW-33/1
and Ex.PW-33/2 of Romesh Sharma to the FSL. Vide report
Ex.PW-34/1 it was opined that the letters Ex.PW-28/B and
Ex.PW-28/C and the specimens Ex.PW-33/1 and Ex.PW-33/2
are written by a same person.
41. On 14.06.1999 Inspector J.S.Joon PW-35, obtained the
attendance sheet Ex.PW-30/1 maintained by Vikram Singh in
respect of attendance of security guards deployed by him at
Jai Mata Di farmhouse and an agreement Ex.PW-30/2
purportedly executed between Vikram Singh and accused
Romesh Sharma and seized the same vide memo Ex.PW-30/3.
A perusal of the attendance sheet Ex.PW-30/1 shows that Sunil
Kumar PW-15 and Hari Chand PW-17, were deployed as
security guards at Jai Mata Di farmhouse in the month of March
1999.
42. On 01.09.1999 Inspector J.S.Joon PW-35, obtained the call
records Ex.PW-9/2, Ex.PW-9/1 and Ex.PW-35/8 of the mobile
numbers 9811024145, 9811155439 and 9810114857
respectively from the cellular companies Essar and Airtel and
seized the same vide memos Ex.PW-35/6, Ex.PW-35/7 and
Ex.PW-35/8 respectively.
43. The call record Ex.PW-9/2 pertains to the period
01.03.1999 to 24.03.1999 and a perusal thereof shows that on
20.03.1999 an incoming call was received on the number
9811024145 from the number 9811155439 at 01.14 P.M.; an
outgoing call was made from the number 9811024145 to the
number 9811155439 at 01.33 P.M. and that an outgoing call
was made from the number 9811024245 to the number
9810114857 at 01.36 P.M. The call record Ex.PW-9/1 pertains
to the period 02.03.1999 to 31.03.1999 and a perusal thereof
shows that on 20.03.1999 an outgoing call was made from the
number 9811155439 to the number 9811024145 at 01.14 P.M.
and that an incoming was received on the number
9811155439 from the number 9811024145 at 01.33 P.M. The
call record Ex.PW-11/1 pertains to the period 01.03.1999 to
20.03.1999 and a perusal thereof shows that on 20.03.1999 an
incoming call was received on the number 98101114857 from
the number 9811024145 at 01.38 P.M.
44. Armed with the aforesaid evidence gathered during
investigation a charge sheet and a supplementary charge
sheet against the accused Surinder Mishra, Tejinder Virdi @
Dolly, Jaspreet Virdi @ Sonu, Romesh Sharma, Hemchand @
Nani, Sant Ram @ Pramod @ Prahlad and Ramesh @ Bobby @
Rajesh @ Ajay @ Raju was filed. However, the police could not
find accused Ganga Singh @ Guddu, Devender Singh @ Balle,
Rakesh and Sudesh @ Babu and thus they were declared
proclaimed offenders. As per the said charge-sheets, the broad
contours of the case set up by the prosecution against the
accused are that accused Romesh Sharma and the deceased
were having intimate relations since last 4-5 years prior to the
day of the murder of the deceased. Accused Surinder Mishra is
the nephew of Romesh Sharma and that Romesh Sharma was
also having relations with two sisters named Tejinder Virdi and
Jaspreet Virdi. Around the month of October 1998, Romesh
Shama was lodged in Tihar Jail in connection with some cases
registered against him. During the period Romesh Sharma was
lodged in jail, the deceased became overbearing and
demanding, which greatly annoyed Romesh Shama and he
decided to do away with the deceased. In the month of
February 1999 Romesh Sharma confided in Surinder Mishra,
Tejinder and Jaspreet Virdi who agreed to aid Romesh Sharma
in achieving his illegal desire. The aforesaid four persons
hatched a conspiracy to murder the deceased during their
meetings in the jail and the court. Surinder Mishra, Tejinder
and Jaspreet Virdi also had a motive to eliminate the deceased
as they were feeling threatened by the growing intimacy
between the deceased and Romesh Sharma and had a feeling
that Romesh Sharma would give all his properties to the
deceased. To give effect to their illegal designs, Surinder
Mishra, Tejinder and Jaspreet Virdi contacted Hemchand @
Nani, Sant Ram @ Pramod @ Prahlad, Ramesh @ Bobby @
Rajesh @ Ajay @ Raju, Ganga Singh @ Guddu, Devender Singh
@ Balle, Rakesh and Sudesh @ Babu deployed by Surinder
Mishra at Jai Mata Di farmhouse owned by Romesh Sharma for
the purposes of security of the said farmhouse, who agreed to
participate in the said conspiracy. In pursuance of the said
conspiracy, Romesh Sharma wrote a letter to the deceased
few days before the murder of the deceased asking her to go
to Jai Mata Di farmhouse for performing a puja and accused
Surinder Mishra provided the deceased with the keys of the
kothi constructed in the said farmhouse. Accused Surinder
Mishra, Tejinder and Jaspreet Virdi went to Jai Mata Di
farmhouse in the morning of 20.03.1999 to meet Hemchand
@ Nani, Sant Ram @ Pramod @ Prahlad, Ramesh @ Bobby @
Rajesh @ Ajay @ Raju, Ganga Singh @ Guddu, Devender Singh
@ Balle, Rakesh and Sudesh @ Babu in connection with the
conspiracy in question. As per the instructions of Romesh
Sharma, the deceased went to Jai Mata Di farmhouse in the
afternoon of 20.03.1999 where Hemchand @ Nani, Sant Ram
@ Pramod @ Prahlad, Ramesh @ Bobby @ Rajesh @ Ajay @
Raju, Ganga Singh @ Guddu, Devender Singh @ Balle, Rakesh
and Sudesh @ Babu murdered the deceased. Before fleeing
from Jai Mata Di farmhouse, accused Hemchand removed the
mobile phone, gold chain and bag of the deceased.
45. Needless to state, accused Surinder Mishra, Tejinder Virdi
@ Dolly, Jaspreet Virdi @ Sonu, Romesh Sharma, Hemchand @
Nani, Sant Ram @ Pramod @ Prahlad and Ramesh @ Bobby @
Rajesh @ Ajay @ Raju were sent for trial. Charges were framed
against accused Surinder Mishra, Tejinder Virdi @ Dolly,
Jaspreet Virdi @ Sonu, Romesh Sharma, Hemchand @ Nani,
Sant Ram @ Pramod @ Prahlad and Ramesh @ Bobby @
Rajesh @ Ajay @ Raju for committing offence punishable under
Section 120-B IPC read with Section 302 IPC. Additionally,
charges were framed against Hemchand @ Nani, Sant Ram @
Pramod @ Prahlad and Ramesh @ Bobby @ Rajesh @ Ajay @
Raju for committing offence punishable under Section 302 IPC
read with Section 34 IPC.
ANALYSIS OF THE EVIDENCE LED BEFORE THE TRIAL COURT
46. At the trial, the prosecution examined as many as 37
witnesses. We need not note the testimony of the various
police officers who took part in the investigation for they have
deposed facts regarding the respective role played by them
during investigation which have already been succinctly stated
by us in the preceding paragraphs and in respect whereof not
much submission were made during arguments in the appeals.
However, wherever necessary, to deal with the submissions
made by the learned counsel for the appellants, such part of
the testimony of the relevant witness would be noted.
47. With a view to have clarity in the analysis of the evidence
led by the prosecution, we segregate the relevant witnesses
into 8 categories; clubbing in one category witnesses who
have thrown light on the same issue.
A Witnesses who participated in the preparation of the
necessary documents prepared by the police till the FIR was
registered:- HC Joseph PW-3, SI Sunil Lamba PW-6, Const.
Garib Chand PW-20, Const.Khushi Ram PW-26, Lady Constable
Milyani PW-29 and Inspector Jagdish Meena PW-36.
48. HC Joseph PW-3, deposed that he made an entry
pertaining to the present case in the log book Ex.PW-3/1 at
03.00 P.M. on 20.03.1999. Lady Constable Milyani PW-29,
deposed that she made an entry pertaining to the present
case in the PCR form Ex.PW-29/1 at 02.53 P.M. on 20.03.1999.
Inspector Jagdish Meena PW-36, deposed that he recorded the
statement Ex.PW-6/1 of Ram Achal Tiwari based whereon he
prepared the endorsement Ex.PW-6/1-A at about 03.00 P.M. on
20.03.1999. SI Sunil Lamba PW-6, deposed having registered
the FIR Ex.PW-6/2 at 03.20 P.M. on 20.03.1999. He further
deposed that the DD entries Ex.PW-6/5 and Ex.PW-6/6 were
prepared by him. Const.Khushi Ram PW-26, deposed having
delivered copies of FIR to the Area Magistrate and senior police
officers.
B Witnesses who were present at the place of occurrence
at the time of the incident: - Ram Achal Tiwari PW-16, Sunil
Kumar PW-15, Hari Chand PW-17 and Dilbag Singh PW-19
49. Ram Achal Tiwari PW-16, deposed that Romesh Sharma
is the owner of Jai Mata Di farmhouse and that he was
employed as caretaker of the said farmhouse on the date of
the incident. Surinder Mishra is the nephew of Romesh
Sharma. Romesh Sharma was lodged in jail since about one
year prior to the date of the murder of the deceased. After the
arrest of Romesh Sharma, the deceased used to come to the
farmhouse and give him money for the purposes of the
maintenance of the farmhouse. Besides him, one Dilbag who
used to look after cows and buffaloes kept in the farmhouse,
two watchmen, one gardener named Rameshwar and another
gardener whose name he does not remember used to reside at
the farmhouse. After five-six months of the arrest of Romesh
Sharma one Subba Rao forcibly tried to take possession of the
farmhouse. He had given information of the murder of the
deceased to the police at Chattarpur Mandir pursuant to which
the police came to the farmhouse and recorded his statement
Ex.PW-6/1. The statement Ex.PW-6/1 bore his signature.
Resiling from his complaint Ex.PW-6/1 he stated that he does
not know any Vikram Singh and that no security guard was
employed at the farmhouse. Nobody had come to the
farmhouse in the morning of 20.03.1999. On 20.03.1999 at
about 12.30 P.M. the deceased had come to the farmhouse in
a car. The front tyre of the car of the deceased was punctured
and she told him to bring a mechanic whereupon he brought a
mechanic to the farmhouse. After inspecting the car the
mechanic went to his shop to bring some tools. Thereafter the
deceased told him to fetch food for ducks and dogs and that
when he came back he saw that the deceased was lying
murdered on the ground.
50. Since the witness was resiling from his earlier statement
Ex.PW-6/1 he was cross-examined by the counsel for the
prosecution. He denied that five security guards were
deployed by Vikram Singh at Jai Mata Di farmhouse as per the
instructions of Romesh Sharma. He denied that Surinder
Mishra had kept seven persons at the farmhouse. He denied
that the shirt worn by him on the day of the incident was
stained with blood. He deposed that the police had taken the
shirt worn by him on the day of the incident from him. He
stated that the police asked him to append his signatures on
the complaint Ex.PW-6/1. On being questioned about the shirt
worn by him on the day of the incident the witness stated:
'This shirt Ex.P.2 was seized vide memo Ex.PW16/1. The same
bear my signature at point A. It is incorrect to suggest that my
signature on this memo was procured on 20.3.99. It is
incorrect to suggest that the shirt was kept in pulanda and
sealed in my presence. The police took it to Police Station and I
do not know what happened thereafter. I do not know whether
the shirt Ex.P.2 bears blood stains of Kunjum. I do not know
whether the blood stains on shirt Ex.P.2 were sustained at the
time Kunjum was murdered. I was taken by police officials to
Police Station I was kept for one month, thereafter I wrote to
my brother who came and took me to Lucknow. Police has
never told me that I had committed the murder. It is incorrect
to suggest that in connivance with accused persons I got
Kunjum murdered hence there were blood stains on my shirt.'
On being confronted with his statement Ex.PW-6/1 he stated:
'Statement Ex.PW6/1 portion A to A is read over to the witness
and he admits that he has given this statement to the police.
Portion B to B of statement Ex.PW6/1 is read over to witness
who denied to have statement to police that Surinder Mishra
nephew of Surinder Mishra used to look after Jai Mata Di
Farmhouse. The portion C to C of Ex.PW6/1 is read over to the
witness who denied to having made statement to police that
on 20.3.99 at 8 A.M. Surinder Mishra came at the
farmhouse.....I want to say that police had written my
statement of their own and obtained my signatures. At that
time I was very much perplexed, I had not gone through the
contents of my statement before I signed the same. I am 8 th
class pass and without my specs I cannot read my statement
Ex.PW-6/1. I was not in a state of mind read my statement
Ex.PW6/1 though I could read it being educated person. It is
correct that the copy of the FIR which was based on my
statement Ex.PW-6/1 was given to me. Till today I have not
given any writing to say authority or Judge or police that my
statement has been wrongly recorded by the police and that I
was not eye witness to the murder of Kunjum.' He denied that
he made the statement Ex.PW-16/2 to the police. He denied
that the keys of the farmhouse used to remain with Surinder
Mishra.
51. On being cross-examined by the defence, he stated that
Tejinder Virdi and Jaspreet Virdi were the members of the
political party floated by Romesh Sharma and that they used
to tie rakhi on the wrist of Romesh Sharma. He stated that
after the arrest of Romesh Sharma the keys of the farmhouse
used to remain with the deceased.
52. Sunil Kumar PW-15, deposed that he was working as a
security guard in a security agency run by Vikram Singh in
March 1999. Vikram Singh had deployed him as security guard
at Jai Mata Di farmhouse since about one week prior to the
date of the murder of the deceased. Besides him, four other
security guards namely Dhirender Singh, Nageshwar Singh,
Het Ram and Hari Chand were also deployed at Jai Mata Di
farmhouse. One Mr.Tiwari was the incharge of the said
farmhouse. Besides him, aforesaid security guards and
Mr.Tiwari, four persons namely Nani, Rakesh, Sant Ram and
Ramesh and three persons whose names he does not
remember were also staying in the said farmhouse. He is not
aware about the fact that who had employed aforesaid seven
persons in the farmhouse. There is a kothi and temple inside
the farmhouse. Surinder Mishra, Tejinder and Jaspreet Virdi
used to visit the farmhouse very often and that Mr.Tiwari had
told him the names of the said two ladies. During his visits to
the farmhouse, Surinder Mishra used to meet Nani, Rakesh,
Sant Ram, Ramesh etc. On 20.03.1999 at about 8.00 A.M.
Surinder Mishra came to the farmhouse and met Nani, Rakesh,
Sant Ram, Ramesh etc. After staying in the farmhouse for
about half an hour Surinder Mishra left from there. At about
11.30 A.M. Tejinder and Jaspreet Virdi accompanied by a priest
came to the farmhouse. The two ladies first met Tiwari and
told him to get the temple cleaned and thereafter they met
Nani, Rakesh, Sant Ram and Ramesh. After meeting Nani,
Rakesh, Sant Ram and Ramesh they told Tiwari that they are
going to the market to purchase things required for
performance of puja and that they would come back in a short
while. However, the two ladies did not return to the
farmhouse. After about half an hour of the departure of the
two ladies the deceased came to the farmhouse. The front tyre
of the car of the deceased was punctured. The deceased asked
Tiwari to bring a mechanic upon which Tiwari brought a
mechanic to the farmhouse. After inspecting the car the
mechanic went to his shop to bring the tools. Thereafter the
deceased took out keys from her purse, gave the same to
Tiwari and told him to get the kothi cleaned. The deceased and
Tiwari went inside the kothi. After 5-7 minutes he noticed Nani,
Rakesh, Sant Ram and Ramesh going inside the kothi. After
15-20 minutes Nani, Rakesh, Sant Ram and Ramesh came out
of the kothi and told the other three persons that they should
go to the market pursuant to which all the seven persons left
from the farmhouse. After 5-7 minutes Tiwari came out of the
kothi and told him and other security guards that the aforesaid
seven persons had murdered the deceased. Tiwari told him
and other security guards to take care of the deceased and
that he is going to inform the police about the incident.
Thereafter he and other security guards went inside the kothi
and saw that the deceased was smeared with blood. After
sometime the police along with Tiwari came to the farmhouse.
53. On being cross-examined about his employment in the
security agency run by Vikram Singh, he stated that 'There
was no appointment letter. No written direction. He had
brought me there. There is no document to show that I was
working with Mr.Vikram in his security service and was
deputed and brought by Vikram himself to Jai Mata Di Farm to
join my duty.' On being cross-examined about his omission to
mention the fact that Tejinder and Jaspreet used to visit the
farmhouse prior to the date of the murder of the deceased in
his statement Ex.PW-15/DA recorded by the Investigating
Officer he stated: 'I had stated to police in my statement that
Dolly and Sonu used to visit the Farmhouse prior date of
occurrence. (confronted with Ex.PW15/DA where it is not so
recorded). Again said I had not told this fact to police.' On
being cross-examined about the fact that Tejinder and Jaspreet
visited farmhouse on the day of the incident with reference to
his statement Ex.PW-15/DA he stated: 'I had stated to police
that Sonu and Dolly had come with Pandit on 20.3.99 at about
11.30 A.M. (facts are recorded but names of Dolly and Sonu
are not recorded).' On being cross-examined about his
omission to mention the fact that Tejinder and Jaspreet met
Nani, Rakesh, Ramesh and Sant Ram at the farmhouse on the
date of the incident in his statement Ex.PW-15/DA he stated: 'I
had stated to police that Dolly and Sonu had met Nani,
Ramesh, Rakesh and Sant Ram etc. (confronted with
Ex.PW15/DA where it is not so recorded)'
54. Hari Chand PW-17, deposed that he had worked as a
security guard in a security agency run by Vikram Singh who
had deployed him as security guard at Jai Mata Di farmhouse
in February-March 1999. One Mr.Tiwari was the caretaker of
the said farmhouse and that he used to reside in the said
farmhouse. Besides Mr.Tiwari, three persons namely Nani,
Ramesh and Santram and four persons whose names he does
not remember used to reside at the said farmhouse. Surinder
Mishra, Tejinder and Jaspreet Virdi used to visit the farmhouse.
Besides him, four other security guards namely, Dhirender
Singh, Tuglesh Singh, Het Ram and Sunil @ Sanjay were also
deployed at Jai Mata Di farmhouse. During his visits to the
farmhouse, Surinder Mishra used to meet Nani, Sant Ram,
Ramesh and their friends. On 20.03.1999 at about 8.00 A.M.
Surinder Mishra came to the farmhouse and met Nani, Sant
Ram and Ramesh. After staying in the farmhouse for about
half an hour Surinder Mishra left from there. At about 11.30
A.M. Tejinder and Jaspreet Virdi accompanied by a priest came
to the farmhouse. The two ladies first met Nani, Sant Ram and
Ramesh and thereafter they met Tiwari and told him to get the
temple cleaned. They also told him that they are going to the
market to purchase things required for performance of puja
and that they would come back in a short while. At about
12.00 P.M. the deceased came to the farmhouse. The front
tyre of the car of the deceased was punctured. The deceased
asked Tiwari to bring a mechanic upon which Tiwari brought a
mechanic to the farmhouse. After inspecting the car the
mechanic went to his shop to bring the tools. Thereafter the
deceased handed over the keys of the kothi to Tiwari and she
and Tiwari went inside the kothi. After sometime Nani,
Santram and Ramesh also entered the kothi. After about 5
minutes Nani, Santram and Ramesh came out of the kothi and
met their five associates who were standing at the gate of the
farmhouse. After sometime all the seven persons left from the
farmhouse. Thereafter Mr.Tiwari came out of the kothi and told
him and other security guards that the aforesaid seven
persons had murdered the deceased. He gave a call on mobile
number 9811155439 of Vikram and informed him about the
murder of the deceased. After sometime the police arrived at
the farmhouse.
55. On being cross-examined about his employment in the
security agency run by Vikram Singh he stated: 'Mr. Vikram
had brought to Jai Mata Di Farmhouse to depute me at work
and he had not given me any letter. There is no document with
me to show that I was posted by Mr.Vikram at Jai Mata Di
Farm.' On being cross-examined about his omission to mention
the fact that Tejinder and Jaspreet used to visit the farmhouse
prior to the date of the murder of the deceased in his
statement Ex.PW-17/DA he stated: 'I had stated to the police
Sonu and Dolly used to come with Surinder Mishra to
Farmhouse prior to occurrence (confronted with Ex.PW17/DA
wherein it is not so recorded)'. On being cross-examined about
the fact that Tejinder and Jaspreet visited farmhouse on the
day of the incident with reference to his statement Ex.PW-
17/DA he stated: 'I had told the police in my statement that on
the day of occurrence Dolly and Sonu came at about 11.30
(confronted with Ex.PW-17/DA wherein it is not so recorded but
it is mentioned that two Madam came in morning)'. On being
cross-examined about his omission to mention the fact that
Tejinder and Jaspreet met Nani, Ramesh and Sant Ram at the
farmhouse on the date of the incident in his statement Ex.PW-
17/DA the witness stated that 'I had stated to police that Dolly
and Sonu met after coming to farmhouse at 11.30 A.M. had
first met Nani, Sant Ram and Ramesh (confronted with
Ex.PW17/DA where it is not so recorded)'.
56. Dilbag Singh PW-19, deposed that he was employed at Jai
Mata Di farmhouse since 26th January 1998, which farmhouse
was owned by Romesh Sharma. He does not know Surinder
Mishra. He first deposed that Ram Achal Tiwari had deployed
security guards at farmhouse; however, he subsequently
stated that the security guards were employed by the
deceased. He has no knowledge about any fact pertaining to
the incident of the murder of the deceased.
57. Since the witness was resiling from his earlier statement
Ex.PW-19/DA he was cross-examined by the counsel for the
prosecution, however nothing worthwhile could be extracted
therefrom.
C Witnesses to prove the complicity of the accused persons
in the murder of the deceased: - Rani Budhiraja PW-27, Pawan
Budhiraja PW-28 and Vikram Singh PW-30.
58. Rani Budhiraja PW-27, the mother of the deceased,
deposed that the deceased and Romesh Sharma wanted to
marry as they were in love with each other. Surinder Mishra is
the nephew of Romesh Sharma. The deceased had shifted to
the house bearing Municipal No.C-31, Hauz Khas, New Delhi
nine days prior to her murder. The said house was owned by
Romesh Sharma and that he had asked the deceased to reside
there. The application Ex.PW-27/A was submitted by the
deceased to MTNL and that the said application contains her
signatures. The letter Ex.PW-27/B is written by the deceased.
Before leaving for Jai Mata Di farmhouse on 20.03.1999 the
deceased was wearing a gold chain but the same was not
found on her dead body. On one occasion Tejinder and
Jaspreet Virdi had abused her son Pawan Budhiraja and got
him assaulted from some muscle men at Tihar jail when he
had gone there to meet Romesh Sharma. Tejinder Virdi had
told her over telephone that she wanted to marry Romesh
Sharma.
59. On being cross-examined by the defence about the
cremation of the deceased she stated: 'It is correct that
Romesh Sharma accused had joined the cremation of my
daughter with the permission of the court, at the time of
cremation, filled the Sindoor and thereafter she was cremated.
Vol: But they were not married and Romesh Sharma liked her
and wanted to marry her'. On being cross-examined by the
defence about the performance of puja at Jai Mata Di
farmhouse she stated: 'It is correct that my daughter used to
go to Jai Mata Di farmhouse with the accused Romesh Sharma,
and used to perform puja there. Vol She never used to go
alone and she used to go with Romesh Sharma'. On being
cross-examined by the defence about the keys of Jai Mata Di
farmhouse she stated: 'It is incorrect to suggest that the keys
of the farmhouse were with my daughter after accused
Romesh Sharma was confined to Jail. Vol. On the day of the
occurrence, accused Surinder Mishra came at 7 a.m. and
handed over the keys....I do not know whether Kunjum was
having the keys of that house which was constructed in Jai
Mata Di farmhouse. The very fact that Surinder Mishra came to
house to hand over the keys and this shows that my daughter
was not having the keys.' (It be noted here that the witness
was not subjected to any cross-examination on behalf of
Surinder Mishra).
60. Pawan Budhiraja PW-28, the brother of the deceased,
deposed that he knows Surinder Mishra, Tejinder and Jaspreet
Virdi. Surinder Mishra is the nephew of Romesh Sharma. He
also knows the other accused persons namely Hem Chand @
Nani, Sant Ram and Ramesh as he had seen them at Jai Mata
Di farmhouse but he does not know their names. Romesh
Sharma was lodged in prison since few months prior to the
date of the murder of the deceased. The property of Romesh
Sharma was looked after by Surinder Mishra, Tejinder and
Jaspreet Virdi during the time Romesh Sharma was lodged in
the prison. He and his father used to visit Romesh Sharma in
jail. Romesh Sharma and the deceased used to communicate
with each other through the medium of letters during the time
Romesh Sharma was lodged in the prison. He used to carry the
letters written by Romesh Sharma to the deceased and pass
the same to the deceased. Likewise, he used to carry the
letters written by the deceased to Romesh Sharma and pass
the same to Romesh Sharma. The application Ex.PW-27/A was
submitted by the deceased to MTNL and that the said
application contains her signatures. The letter Ex.PW-27/B is
written by the deceased and that the letters Ex.PW-28/B and
Ex.PW-28/C are written by Romesh Sharma. Surinder Mishra,
Tejinder and Jaspreet Virdi also used to meet Romesh Sharma
in the jail. Whenever he used to go to jail to meet Romesh
Sharma Surinder Mishra, Tejinder and Jaspreet Virdi used to
taunt him but he used to ignore the same. Tejinder Virdi
wanted to marry Romesh Sharma. In the month of March 1999
Surinder Mishra, Tejinder and Jaspreet Virdi had abused him
and got him assaulted from some muscle men at Tihar jail
when he had gone there to meet Romesh Sharma. He had
seen accused Hem Chand @ Nani, Sant Ram and Ramesh at Jai
Mata Di farmhouse when he had gone there after the arrest of
Romesh Sharma and that the said persons were employed by
Surinder Mishra. Surinder Mishra, Tejinder and Jaspreet Virdi
were having the keys of the building constructed in Jai Mata Di
farmhouse. On 19.03.1999 he had gone to Tihar Jail to meet
Romesh Sharma and that Romesh Sharma told him to convey
a message to the deceased that the deceased should perform
puja at Jai Mata Di farmhouse and that Surinder Mishra will
give her the keys of the kothi constructed in the said
farmhouse. In the evening of 19th March 1999 he had gone to
C-30 May Fair Garden where he met Tejinder and Jaspreet
Virdi. He asked them to give him the keys of the farmhouse
but they did not give him the same. On the night of 19 th March
1999 he heard the deceased asking Surinder Mishra that why
he insulted him when he had asked him to give the keys of the
farmhouse. He had seen the deceased writing the letter
Ex.PW-27/C in the night of 19th March 1999 but she could not
complete the same as she was tensed due to the nasty
behaviour of Surinder Mishra, Tejinder and Jaspreet Virdi
towards him.
61. On being cross-examined by the defence about the
performance of puja at C-30 May Fair Garden he stated: 'It is
correct that my sister used to be invited for the Pooja at C-30
May Fair Garden'. (It be noted here that the witness was not
subjected to any cross-examination on behalf of Surinder
Mishra).
62. Vikram Singh PW-30, deposed that he runs a security
agency under the name and style of Washtower Security
Detectives. He knows Romesh Sharma since the year 1998. At
the request of Romesh Sharma he deployed security guards at
Jai Mata Di farmhouse with effect from 20.02.1999. In the
month of March 1999 he had deployed five security guards
namely Hari Chand, Het Ram, Dhirender Singh and Sunil @
Sanjay at Jai Mata Di farmhouse. He used to maintain an
attendance sheet in respect of the security guards deployed at
Jai Mata Di farmhouse in respect of each month and that the
document Ex.PW-30/1 is the attendance sheet maintained by
him in the month of March 1999. On 01.03.1999 he entered
into an agreement Ex.PW-30/2 with Romesh Sharma with
respect to the security arrangements at Jai Mata Di farmhouse.
Romesh Sharma appended his signatures on the agreement
Ex.PW-30/2 in the court when he had come there in connection
with the hearing of the case registered against him. He knows
accused Surinder Mishra, Tejinder and Jaspreet Virdi and
Pawan and Amritlal Budhiraja, the brother and father of the
deceased respectively. Surinder Mishra is the nephew of
Romesh Sharma and Tejinder and Jaspreet Virdi are his
friends. Tejinder and Jaspreet Virdi were the parokars of
Romesh Sharma and they used to look after his cases. He used
to go to Tihar jail to meet Romesh Sharma in connection with
the security arrangements at Jai Mata Di farmhouse. On
05.03.1999 he received a call from Pawan Budhiraja who told
him to come to Tihar jail. On reaching Tihar jail he saw that
some muscle men were extending threats to Pawan Budhiraja
at the instance of Tejinder and Jaspreet Virdi. In the month of
March 1999 his mobile number was 9811155439. The mobile
number of Tejinder Virdi at that time was 9811024145. On
20.03.1999 he was present in house when at around 2.00 P.M.
Hari Chand who was deployed by him at Jai Mata Di farmhouse
called him and informed that a girl has been murdered at Jai
Mata Di farmhouse by the persons who were residing at the
said farmhouse namely Guddi, Nani, Rakesh, Balle etc.
Thereafter he called Tejinder Virdi on her mobile and gave her
the aforesaid information. Tejinder Virdi told him that the
name of the girl who has been murdered at Jai Mata Di
farmhouse is Kunjum. After sometime Tejinder Virdi called him
on his mobile and asked him to tell whether the boys who
committed the murder of the deceased had run away or not
and that he should call him after checking the aforesaid fact.
Pursuant thereto he went to Jai Mata Di farmhouse where he
met Ram Achal Tiwari and he saw that the shirt worn by Ram
Achal Tiwari was stained with blood. He had seen Hem Chand
@ Nani, Sant Ram and Ramesh at Jai Mata Di farmhouse prior
to the day of the murder of the deceased.
63. On being cross-examined by the defence about the
presence of accused Hem Chand @ Nani, Sant Ram and
Ramesh at Jai Mata Di farmhouse, he stated: Ram Achal Tiwari
had told him that the said persons were employed by Surinder
Mishra. On being cross-examined by the defence about the
recording contained in his statement Ex.PW-30/DA that Hari
Chand told him that the name of the girl who was murdered at
Jai Mata Di farmhouse was Kunjum he stated 'When the guard
Hari Chand at about 1/1.05 P.M. informed me on mobile the
name of the deceased was not told by him the name of the
deceased was told by Sonu and Dolly. (later answer on the
question of the court). (confronted with Ex.PW30/DA where the
name of deceased as Kunjum is recorded as having been told
to witness by guard)'. On being cross-examined by the
defence about his omission to mention the fact that he had
given a phone call to Tejinder Virdi on the day of the murder of
the deceased he stated: 'I had stated to the police in my
statement that when I rang up Dolly she told me that the
name of the girl was Kunjum who was murdered (confronted
with Ex.PW30/DA where it is not so recorded). I do not
remember whether I stated to the police in my statement that
she asked me to tell those facts back to her after checking the
same (confronted with Ex.PW30/DA where it is not so
recorded)'.
D Witnesses to prove the arrest of accused Surinder
Mishra: - Amara Bhai PW-5
64. Amara Bhai PW-5, deposed that he is the Manager of
Kapadia guest house which is located in Ahmedabad. On
22.03.1999 accused Surinder Mishra came to the said guest
house for staying there and told him that his name is Raj
Kumar Bhatia and that he is resident of 37 Travels Nagar
Indore. He made an entry Ex.PW-5/1 pertaining to the stay of
accused in the guest house in the guest register maintained at
the guest house. Accused Surinder Mishra signed as Raj Kumar
Bhatia against the entry Ex.PW-5/1 in his presence. Accused
Surinder Mishra was staying in room no.50 of guest house. In
the intervening night of 22-23.03.1999 the police came to the
guest house and arrested Surinder Mishra.
65. Inspector Tarun Kumar PW-12, deposed that on
22.03.1999 he got information that accused Surinder Mishra
who had committed the murder of the deceased is staying in
Kapadia guest house pursuant to which he went there and
found that Surinder Mishra is staying in room no.50 of the said
guest house under the name of Raj Kumar Bhatia. He
apprehended accused Surinder Mishra. After apprehending
Surinder Mishra he conducted his personal search. Thereafter
he brought Surinder Mishra to the police station and
interrogated him. On being interrogated by him Surinder
Mishra made the disclosure statement Ex.PW-12/A. (It be
noted here that a suggestion was given to the witness when
he was cross-examined by the counsel for Surinder Mishra that
he was looking for Abu Salem and Dawood Ibrahim and had
wrongly arrested accused Surinder Mishra).
E Witnesses to prove the meetings of Romesh Sharma,
Surinder Mishra, Tejinder and Jaspreet Virdi :- Mahinder
Parshad PW-4 and Meena Bhatia PW-1
66. Mahinder Parshad PW-4, Assistant Superintendent, Tihar
Jail, deposed that in March 1999 he used to supervise the work
pertaining to meetings of the visitors with the inmates lodged
in jail no. 5. A visitor‟s register was maintained at jail no.5 to
record the meetings of the visitors with the inmates. Romesh
Sharma was lodged in jail no.5 in March 1999. On 05.03.1999
Surinder Mishra, Tejinder Virdi and Pawan Budhiraja met
Romesh Sharma; on 09.03.1999 Surinder Mishra and Tejinder
Virdi met Romesh Sharma; on 12.03.1999 Surinder Mishra,
Tejinder and Jaspreet Virdi met Romesh Sharma; on
16.03.1999 Tejinder and Jaspreet Virdi and Pawan Budhiraja
met Romesh Sharma and on 19.03.1999 Surinder Mishra,
Tejinder Virdi and Pawan Budhiraja met Romesh Sharma in jail
no.5. The entries Ex.PW-4/1, Ex.PW-4/2, Ex.PW-4/3, Ex.PW-4/4
and Ex.PW-4/5 were made in the visitor‟s register recording
the said visits.
67. On being cross-examined by the defence about the
meetings between Romesh Sharma, Surinder Mishra, Tejinder
and Jaspreet Virdi at Tihar Jail he stated: 'There are 50-60
accused at the time of meeting with the respective visitor.
Meeting takes place in room at one place. It is correct that the
accused are behind a jali, then there is a gap of 2-2 ½ feet and
again Jali is affixed and thereafter the visitor are there who
wants to meet the accused/convict. It is correct that Jail staff
takes round of the places where the accused are standing and
where the visitors are standing. It is correct that there are 1-2
constables available with the prisoners who are high light. It is
correct that the two constables who bring the prisoners for
meeting in that room they are on duty to keep an eye on the
prisoners. It is correct that there if there is lot of crowd the
prisoner as well as the persons who had come meet the
prisoners had to speak loudly.....Normally all the visitors who
have come for meeting they come together to meet prisoner
and leave together after meeting the prisoner.'
68. Meena Bhatia PW-1, Assistant Ahlmad in the court of
Chief Metropolitan Magistrate, deposed that the applications
Ex.PW-1/1, Ex.PW-1/2, Ex.PW-1/3, Ex.PW-1/4, Ex.PW-1/5,
Ex.PW-1/6, Ex.PW-1/7 and Ex.PW-1/8 were filed in the court of
Chief Metropolitan Magistrate.
F Witnesses to prove the record relating to the mobile
phones of Surinder Mishra, Tejinder Virdi and Vikram Singh:-
Deepak Gupta PW-9 and Captain Rakesh Bakshi PW-11
69. Deepak Gupta PW-9, Deputy Manager, Legal Operation,
Essar Cell phones, deposed that the mobile number
9811155439 is registered in the name of Vikram Singh and
that the document Ex.PW-9/1 is the call record of the said
number pertaining to the period 02.03.1999 to 31.03.1999.
The mobile number 9811024145 is allotted to a pre-paid cash
card and that the document Ex.PW-9/2 is the call record of the
said number pertaining to the period 01.03.1999 to
24.03.1999.
70. Captain Rakesh Bakshi PW-11, an employee of the
cellular company Airtel deposed that mobile number
9810114857 is allotted to a pre-paid cash card and that the
document Ex.PW-11/1 is the call record of the said number
pertaining to the period 01.03.1999 to 20.03.1999. (It be noted
here that in the year 1999 no identification proof was required
to be furnished to buy a pre-paid cash card and therefore the
cellular companies had no record to show the identity of a
person who bought a pre-paid card)
G Witnesses to prove the medical and scientific evidence:-
Dr. T. Millo PW-31 and Deepa Verma PW-34
71. Dr. T. Millo PW-31, deposed that the post-mortem report
Ex.PW-31/A was prepared by Dr.Lal Rozama.
72. Deepa Verma PW-34, Senior Scientific Officer
(Documents), FSL deposed that the FSL report Ex.PW-34/A was
prepared by her.
H Residual witnesses: - Mahinder Singh PW-13, Pandit
Deepak Sharma PW-18 and HC Prakash Singh PW-7
73. Mahinder Singh PW-13, deposed that in the year 1999 he
used to repair punctured tyres at Chattarpur. In the month of
March 1999 he had gone to Jai Mata Di farmhouse to repair a
punctured tyre. One day in the month of March 1999 at about
11.15-11.30 P.M. one Tiwari came to his shop and told him
that the tyre of car of one Madam has punctured and that he
should repair the same upon which he accompanied Tiwari to
Jai Mata Di farmhouse. He was not able to repair the punctured
tyre as he was not having the required tools. He has no
knowledge about the murder of the deceased.
74. Pandit Deepak Sharma PW-18, deposed that he used to
perform pujas at the properties owned by Romesh Sharma
since last 10-12 years. The statement Ex.PW-18/A was not
made by him to the police. He regularly used to perform puja
at Jai Mata Di farmhouse and that the deceased used to be
present with Romesh Sharma in every puja performed by him
at Jai Mata Di farmhouse.
75. HC Prakash Singh PW-7, deposed that he registered the
FIR Ex.PW-7/1 on 06.02.1999. The said FIR records that on
06.02.1999 some musclemen forcibly tried to take possession
of Jai Mata Di farmhouse at the instance of one Subba Rao, a
Member of Parliament.
76. In the backdrop of the aforesaid evidence led by the
prosecution, the accused persons were examined under
Section 313 Cr.P.C.
77. Accused Surinder Mishra in his statement under Section
313 Cr.P.C. denied all the incriminating circumstances
appearing against him and stated that he is falsely implicated
in the present case as he is the nephew of Romesh Sharma. He
admitted having filed the applications in the court for meeting
Romesh Sharma but denied having met Romesh Sharma in the
court. He stated that he had met Romesh Sharma in Tihar jail.
He denied having known the deceased or Tejinder and Jaspreet
Virdi. He stated that he has never visited Jai Mata Di
farmhouse in his lifetime. With respect to his arrest in the
present case, Surinder Mishra stated that Delhi police forcibly
lifted him from Delhi, took him to Ahmedabad and falsely
showed his arrest at Ahmedabad.
78. Accused Tejinder Virdi @ Dolly and Jaspreet Virdi @ Sonu
in their statements under Section 313 Cr.P.C. denied all the
incriminating circumstances appearing against them and
stated that they have been falsely implicated in the present
case. They stated that they were the parokars of the cases
registered against Romesh Sharma and that they used to meet
him in jail in order to take instructions from him regarding his
case. They denied that Tejinder Virdi @ Dolly wanted to marry
Romesh Sharma.
79. Accused Romesh Sharma in his statement under Section
313 Cr.P.C. denied all the incriminating circumstances
appearing against him. He stated that he has no knowledge
about the fact that Surinder Mishra is his nephew. He stated
that the family members of the deceased were his parokars.
He denied that Tejinder and Jaspreet Virdi were his parokars
and that he used to meet them and Surinder Mishra in the jail
or in the court. He stated that the deceased was her fiancé. He
stated that the deceased and his father were having the keys
of his properties including Jai Mata Di farmhouse. With respect
to the agreement entered into between him and Vikram Singh
Romesh Sharma stated that he does not remember whether
he executed any such agreement. He stated that he knows
Vikram Singh but that no security guards were deployed by
Vikram at Jai Mata Di farmhouse at his instance.
80. Accused Hemchand @ Nani, Sant Ram @ Pramod @
Prahlad and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju in their
statements under Section 313 Cr.P.C. pleaded innocence and
denied everything.
81. In defence, accused Romesh Sharma examined Naveen
Budhiraja DW-1, the brother of the deceased. Naveen
Budhiraja DW-1, deposed that the deceased was in love with
Romesh Sharma and wanted to marry him. That writing Ex.DX
and Ex.DZ and Ex.DW-1/1 to Ex.DW-1/58 are written in the
handwriting of the deceased.
82. A perusal of the writing Ex.DX, Ex.DZ and Ex.DW-1/1 to
Ex.DW-1/58 goes to show that the Ex.DX is an incomplete
letter; Ex.DZ is a complete letter written on 08.01.1999;
Ex.DW-1/1 to Ex.DW-1/2 form a complete letter written on
25.01.1999; Ex.DW-1/3 to Ex.DW-1/4 form a complete letter
written on 01.02.1999; Ex.DW-1/5 to Ex.DW-1/6 form a
complete letter written on 12.02.1999; Ex.DW-1/7 to Ex.DW-
1/8 form an incomplete letter written on 13.02.1999; Ex.DW-
1/9 to Ex.DW-1/10 form a complete letter written on
15.02.1999; Ex.DW-1/11 is an incomplete letter; Ex.DW-1/12 is
an incomplete letter; Ex.DW-1/13 to Ex.DW-1/14 form a
complete letter written on 05.03.1999; Ex.DW-1/15 to Ex.DW-
1/16 form a complete letter; Ex.DW-1/17 to Ex.DW-1/18 form
an incomplete letter; Ex.DW-1/19 to Ex.DW-1/20 form an
incomplete letter written on 29.01.1999; Ex.DW-1/21 to
Ex.DW-1/22 form an incomplete letter; Ex.DW-1/23 to Ex.DW-
1/24 form an incomplete letter written on 21.02.1999; Ex.DW-
1/25 to Ex.DW-1/26 form a complete letter; Ex.DW-1/27 is an
incomplete letter; Ex.DW-1/28 is an incomplete letter; Ex.DW-
1/28 is an incomplete letter; Ex.DW-1/29 is an incomplete
letter; Ex.DW-1/30 is an incomplete letter; Ex.DW-1/31 to
Ex.DW-1/32 form a complete letter written on 01.01.1999;
Ex.DW-1/33 to Ex.DW-1/34 form an incomplete letter; Ex.DW-
1/35 form one complete letter and one incomplete letter
written on 18.02.1999 and 19.02.1999 respectively; Ex.DW-
1/36 form two complete letters and one incomplete letter
written on 14.02.1999, 16.02.1999 and 17.02.1999
respectively; Ex.DW-1/37 to Ex.DW-1/40 form an incomplete
letter written on 07.12.1998; Ex.DW-1/41 to Ex.DW-1/44 form
a complete letter; Ex.DW-1/45 to Ex.DW-1/46 form a complete
letter written on 04.01.1999; Ex.DW-1/47 to Ex.DW-1/48 form
a complete letter written on 09.01.1999; Ex.DW-1/49 to
Ex.DW-1/50 form a complete letter written on 09.01.1998;
Ex.DW-1/51 to Ex.DW-1/52 form a complete letter written on
05.01.1999; Ex.DW-1/53 to Ex.DW-1/54 form a complete letter
written on 06.01.1999; Ex.DW-1/55 to Ex.DW-1/56 form a
complete letter 07.01.1999; Ex.DW-1/57 to Ex.DW-1/58 form a
complete letter 08.01.1999;
83. A common feature in all the afore-noted letters is that
they are addressed to Romesh Sharma. The letters bring out
that the deceased was greatly concerned about the well-being
of Romesh Sharma; that the deceased was performing pujas
and observing fasts for well-being of Romesh Sharma and that
the deceased and Romesh Sharma are religious minded
persons.
84. The relevant portion of the letter Ex.DW-1/1 to Ex.DW-1/2
dated 25.01.1999 reads as under:-
"......I don‟t want anything in my life except just
want to see you out of all this mess and then happy
forever. Sweetheart you don‟t at all take any
immaterial thing to your heart these material things
don‟t mean a thing when you will come....you must
be aware Sonu called up I don‟t wanted to give the
letter in her hand so now I am sending pawan with
it.....Sweetheart I want to meet you myself now
please tell me when should I come you can tell
Pawan or then you can write me......"
85. The relevant portion of the letter Ex.DW-1/3 to Ex.DW-1/4
dated 01.02.1999 reads as under:-
"....I am all right and not at all in need of
anything.....Please can I come to see you and is
there anything for me sweetheart.....I just need
nothing I can‟t even think of anything as long as you
don‟t come home...."
86. The relevant portion of the letter Ex.DW-1/5 to Ex.DW-1/6
dated 12.02.1999 reads as under:-
".....Sweetheart when I saw you in the court today
for a couple of minutes I was trying hard to resist
myself I wanted to hide you in my arms and wanted
to take you far far away from all these people......"
87. The relevant portion of the letter Ex.DW-1/12 reads as
under:-
"....Sweetheart can I come to see you. Sweetheart
from two weeks I am sending the Hauz Khas papers
but every time some or the other reason happens.
Now I am sending them today again...."
88. The relevant portion of the letter Ex.DW-1/13 to Ex.DW-
1/14 dated 05.03.1999 reads as under:-
"....Sweetheart will inform you about hauz khas
getting some work done there not me I don‟t feel
like doing anything except want to spend all my
time in god‟s feet...."
89. The relevant portion of the letter Ex.DW-1/15 to Ex.DW-
1/16 reads as under:-
"....Rest tell me is there any thing for me, at the
moment I can think of nothing else except for how
and what should we do to bring you back home at
earliest.....pawan has organised each and every
thing for health club but he could not start it, all this
while as he don‟t had the authority letter with him
as he had already left the job thinking that he would
get orders by computer but then computer was also
not available somehow......"
90. The relevant portion of the letter Ex.DW-1/17 to Ex.DW-
1/18 reads as under:-
"....Listen Pawan has started working at a very good
place. He is doing the work of export since a long
time and he wants to purchase a computer from his
salary and cash. He says he would contact buyers
through email. If you have any computer tell Babbu
to give it to Pawan. Pawan would use it and it would
give him lot of support. On the new year‟s eve I
would go to farmhouse a light a lamp in front of
God. I would also light a lamp in temple at Mayfair if
the same is open...." (Translated Version)
91. The relevant portion of the letter Ex.DW-1/19 to Ex.DW-
1/20 dated 29.01.1999 reads as under:-
".......now yours sisters and (illegible) do a lot of
mischief as Babbu is also not there at this point we
have to take all this in a hope that very soon you
will be free to do whatever you want. Listen you just
forget about all this although I cannot explain how
painful it is but don‟t at all say anything to anyone
as they might get annoyed you understand what I
mean that at the moment they are really needed so
overlook all this with a heavy heart....you allow me
to see you as 3 people can meet you then probably
you can ask me to so do some work. I don‟t come as
you always wanted me to keep out of everything as
you even asked me not to talk to the adv....."
92. The relevant portion of the letter Ex.DW-1/21 to Ex.DW-
1/22 reads as under:-
"...even today you have fulfilled all your duties
towards me I need nothing in my life for except
want you out of all this mess....."
93. The relevant portion of the letter Ex.DW-1/23 to Ex.DW-
24 dated 21.02.1999 reads as under:-
"....you have done enough for me before and even
being in this situation you have done so much that I
can look after all my affairs and live respectfully and
spent all my time in praying and without the tension
of the basic needs...."
94. The relevant portion of the letter Ex.DW-1/25 to Ex.DW-
1/26 reads as under:-
"...One feels like but still I requested surinder to
keep all the expensive things somewhere safely
whatever is the left over he said he will keep every
thing in your room and will lock it I told him surinder
"look after every thing if all this is Sharma ji‟s its
yours as well after all you are his bhatija we all are
just friends to him but you are equally the owner of
every thing you should see to every thing as its
yours as well" I told him all this as he was not happy
to see all of us there sweetheart to me I feel let all
these things go away they are not important then
you just only want to see back home. Sweetheart in
a day or maximum two hauz khas papers will be
done....."
95. The relevant portion of the letter Ex.DW-1/27 reads as
under:-
".....and pawan if in any case they don‟t manage to
pass my letter to you then Rudra will get it in the
evening as he will be going to see you as you asked
for and will also get the hauz khas papers....."
96. The relevant portion of the letter Ex.DW-1/30 reads as
under:-
"...Listen when I find that there‟s not even a single
person who is responsible or is interested to do
something so that you come out quickly except for
just passing time by talks I feel that I should go talk
to all the advocates and see you every time and
look after all your affairs by ownself I wish I had
some identity so that people were answerable to
me. Now at times rather I am questioned that who
are you...."
97. The relevant portion of the letter Ex.DW-1/31 to Ex.DW-
1/32 dated 01.01.1999 reads as under:-
"....Sweetheart you don‟t worry about me I am
keeping well I am all right and not in need of
anything.....Please tell me is there anything I can
do...."
98. The relevant portion of the letter Ex.DW-1/33 to Ex.DW-
1/34 reads as under:-
"....I don‟t have any problem I am not in need of
anything but even the thought that how are you
taking all this and going through all these sufferings
is killing me....Sweetheart we have moved to C-
31...."
99. The relevant portion of the letter Ex.DW-1/35 dated
19.02.1999 reads as under:-
"....can I come to see you and please write me
about what is happening have you decided upon the
advocates...."
100. The relevant portion of the letter Ex.DW-1/37 to Ex.DW-
1/40 dated 07.12.1998 reads as under:-
"...I have many times tried to meet you but persons
who make enquiries have troubled me a lot....Don‟t
worry about the house as I am at a decent
place....." (Translated Version)
101. The relevant portion of the letter Ex.DW-1/41 to Ex.DW-
1/44 reads as under:-
"...I am doing the pooja at C-31 as at the other
houses I din‟t want that there should be any
obstruction in performance of puja and you can‟t
even dream of the what all is going on
here....Sweetheart Pawan and my cousin went to
check for elec bills as they disconnected the elec at
hauzkhas but we managed to install it the same day
and also went for house tax they will give you all
the information on Tuesday. Sweetheart we will
finance Santro....Health centre will be starting on
Ram navmi probably sweetheart....When we came
out after meeting you on your birthday mom
requested rakhi again as her parents are adv but
she said they can‟t do anything my husband will not
like it...." (Translated Version)
102. The relevant portion of the letter Ex.DW-1/47 to Ex.DW-
1/48 reads as under:-
"....Pawan told me that I could see you today at TJ
but now that is not possible as you are coming to
the court today..."
103. The relevant portion of the letter Ex.DW-1/49 to Ex.DW-
1/50 reads as under:-
".....I want to meet you. I get upset just by hearing
about the way you are brought to the court and the
way you are allowed to meet. I wonder what would I
do when I would see you.... "(Translated Version)
104. The relevant portion of the letter Ex.DW-1/55 to Ex.DW-
1/56 reads as under:-
"....Sweetheart swear on my life that you would not
feel sad even if all material things go away. One day
God will give you everything you desire. Sweetheart
one day all of us have to leave this world and
nothing will go with us. Sweetheart everything is
there if you are there. Nothing would be there if you
are not there.....We all have to go to God one day
and therefore love God and don‟t love these
material things...."(Translated Version)
105. The other accused persons did not lead any evidence in
support of their defence.
ANALYSIS OF THE IMPUGNED JUDGMENT
106. A perusal of the impugned judgment shows that the
same has been written in a rolled over style, where after
noting a piece of evidence and the submission of the counsel,
no definite conclusion has been reached but the Judge has
proceeded to consider the next piece of evidence. By way of
an illustration, following portions of the impugned judgment
may be noted:-
"2. A-1 to A-3 regular visitor to A-4
i) Next circumstance to infer conspiracy among
accused persons is regular visits by A-1 to A-3 to
A-4 in jail and outside.
.....
xiv) There is enough evidence on record to show
that A-1 to A-3 were in constant/regular touch
with A-4. There is no substance if A-1 to A-3 were
not having no acquaintance with A-4 prior to the
incident. Their names find mention in the letters
proved on record. PW16 Ram Achal Tiwari has
also deposed about the visits of A-2 and A-3 in his
cross-examination. He, however, added that A-2
and A-3 used to come along with A-4 whenever
there was a party at farmhouse. PW16 Ram Achal
Tiwari, contrary to the stand taken by A-4 has at
least admitted that A-1 was known to him as he
was the nephew of A-4. Strange enough A-4 does
not recognize A-1 as his nephew, though, his
trusted Caretaker knows him to be his nephew.
xv) Above evidence discussed reveals that A-1 to
A-3 were in constant touch with A-4 prior to the
incident. The occurrence took place on
20.03.1999. Only on 19.03.1999, a day before the
fateful incident, A-1 and A-2 had met A-4 inside
the jail. A-4 has denied this meeting falsely. It
seems that A-4 intends to conceal as to what
conversation took place between him and A-1 and
A-2 at that time. Regular visits of A-1 to A-3 to A-4
in jail show that they were hand in glove with
each other. A-4 had no suspicion or complaint
against conduct and behaviour of A-1 to A-3 at
any time.
xvi) It has further come on record that after this
horrible incident on 20.03.99, A-1 to A-3 who used
to have frequent visits at regular interval to A-4
did not deem it fit to inform A-4 about murder of
his alleged beloved/fiancy. A-4 did not suspect
involvement of A-1 to A-3 at any time though, his
arrest in this case took place after sufficient long
time. A-4 with the permission of the court,
attended cremation of deceased Kunjum, filled
sindhoor in her mang but did not bother to
suspect involvement of any person in the
commission of the murder of Kunjum. Mere
attending cremation and filling sindhoor in the
mang of the deceased after the incident is not
sufficient to establish innocence of A-4. A-4 has
failed to justify as to what prevented him to marry
the deceased earlier during her life time. The so
called marriage with a dead body seems a device
adopted by A-4 to wriggle out of the
consequences of the offence. It remains mystery
as to what prevented A-4 to give identity to the
deceased during her life time by marrying her
before he was arrested in Octorber, 1998.
....."
107. From the afore-noted portion of the impugned
judgement, it is apparent that while discussing the
circumstance pertaining to regular meetings of accused
Romesh Sharma, Surinder Mishra, Dolly and Sonu, the learned
Trial Judge has also dealt with the circumstances pertaining to
false answers given by Romesh Sharma, the conduct of
Romesh Sharma, Surinder Mishra, Dolly and Sonu after the
murder of the deceased, the conduct of Romesh Sharma
before his arrest in connection with other cases lodged against
him and the conduct of Romesh Sharma at the time of the
cremation of the deceased.
108. No intelligible reasoning whatsoever is forthcoming from
the impugned judgment. Be that as it may, a perusal of the
impugned judgement shows that following circumstances were
pressed into service by the prosecution to bring home the guilt
of the accused: - (It may be noted here that during the course
of the arguments of the present appeals the learned counsel
for the State conceded that there are no incriminating
circumstances against the accused other than the ones noted
by us).
A Incriminating circumstances against Hemchand @ Nani,
Sant Ram @ Pramod @ Prahlad and Ramesh @ Bobby @
Rajesh @ Ajay @ Raju:- (i) Eye-witness account of Ram Achal
Tiwari; (ii) Deceased was last seen alive in the company of the
said accused persons; (iii) Accused persons absconded from
the farmhouse after the murder of the deceased and (iv)
Recovery of gold chain of the deceased at the instance of
accused Hemchand @ Nani.
B Incriminating circumstances against Surinder Mishra :- (i)
Surinder Mishra employed the killers of the deceased at Jai
Mata Di farmhouse; (ii) Surinder Mishra was in regular touch
with the killers of the deceased; (iii) Surinder Mishra met the
killers of the deceased a day prior to the murder of the
deceased; (iv) Surinder Mishra visited the place of the murder
of the deceased on the day of the murder of the deceased and
met the killers of the deceased; (v) Surinder Mishra absconded
after the murder of the deceased; (vi) Surinder Mishra
concealed his identity after the murder of the deceased; (vii)
Surinder Mishra had motive to do away with the deceased;
(viii) Surinder Mishra did not offer condolence to the family of
the deceased; (ix) Surinder Mishra did not inform Romesh
Sharma about the death of the deceased and (x) Surinder
Mishra gave false answers in his statement under Section 313
Cr.P.C.
C Incriminating circumstances against Tejinder Virdi @
Dolly: - (i) Tejinder Virdi was in regular touch with Surinder
Mishra; (ii) Tejinder Virdi met Surinder Mishra a day prior to the
murder of the deceased; (iii) Tejinder Virdi visited the place of
the murder of the deceased on the day of the murder of the
deceased and met the assailants of the deceased; (iv) Tejinder
Virdi left the farmhouse on a false pretext on the day of the
murder of the deceased; (v) Tejinder Virdi had a motive to do
away with the deceased; (vi) Tejinder Virdi contacted Surinder
Mishra soon after the murder of the deceased; (vii) Suspicious
conduct of Tejinder Virdi after the murder of the deceased;
(viii) Tejinder Virdi did not offer condolence to the family of the
deceased and (ix) Tejinder Virdi did not inform Romesh
Sharma about the murder of the deceased.
D Incriminating circumstances against Romesh Sharma: -
(i) Romesh Sharma was in regular touch with Surinder Mishra
and Tejinder Virdi; (ii) Romesh Sharma met Surinder Mishra
and Tejinder Virdi a day prior to the murder of the deceased;
(iii) Romesh Sharma led the deceased to the place of her
murder; (iv) Romesh Sharma had a motive to do away with the
deceased; (v) Deceased shifted in the property of Romesh
Sharma few days before her murder; (vi) Romesh Sharma did
not suspect the involvement of Surinder Mishra, Dolly and
Sonu in the crime of the murder of the deceased; (vii) Romesh
Sharma did not marry the deceased in her lifetime; (viii)
Romesh Sharma created a scene at the time of the cremation
of the deceased; (ix) Romesh Sharma did not meet the
deceased in jail despite various requests of the deceased and
(x) Romesh Sharma gave false answers in his statement under
Section 313 Cr.P.C.
E Incriminating circumstances against Jaspreet Virdi @
Sonu :- (i) Jaspreet Virdi frequently met Surinder Mishra and
Romesh Sharma; (ii) Jaspreet Virdi went to the place of the
murder of the deceased on the day of the murder of the
deceased and met the assailants of the deceased; (iii) Jaspreet
Virdi left the farmhouse on a false pretext on the day of the
murder of the deceased; (iv) Jaspreet Virdi had a motive to do
away with the deceased; (v) Jaspreet Virdi did not offer
condolence to the family of the deceased and (vi) Jaspreet
Virdi did not inform Romesh Sharma about the death of the
deceased.
109. As already noted in the foregoing paras, save and except
accused Jaspreet Virdi @ Sonu learned Trial Judge has
convicted all the accused persons. The reasons which led the
learned Trial Judge to acquit accused Jaspreet Virdi @ Sonu are
that: - (i) The prosecution has not been able to prove that Sonu
had a motive to murder the deceased; (ii) The deceased did
not have a grievance against Sonu; (iii) Sonu did not meet
Romesh Sharma in jail as frequently as Surinder Mishra and
Dolly; (iv) Sonu was not present with Surinder Mishra and Dolly
when they went to the jail to meet Romesh Sharma on the
penultimate day i.e. 19.03.1999 (a day prior to the murder of
the deceased) and (v) There is no evidence to show that Sonu
was in touch with Surinder Mishra and Dolly after the day of
the murder of the deceased.
LAW OF CONSPIRACY
110. As conspiracy is the primary charge against the accused,
we first advert to the law of conspiracy - its definition,
essential features and proof.
Section 120-A defines „criminal conspiracy‟ as under:-
"Definition of criminal conspiracy - When two or
more person agree to do, or cause to be done, (1) An
illegal act, or (2) An act which is not illegal by illegal
means, such an agreement is designated a criminal
conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in
pursuance thereof Explanation: - It is immaterial
whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object."
111. Proof of a criminal conspiracy by direct evidence is not
easy to get and probably for this reason Section 10 of the
Indian Evidence Act was enacted. It reads as under:-
"10. Things said or done by conspirator in
reference to common design:-Where there is
reasonable ground to believe that two or more
persons have conspired together to commit an
offence or an actionable wrong, anything said, done
or written by any one of such persons in reference
to their common intention, after the time when
such intention was first entertained by any one of
them, is a relevant fact as against each of the
persons believed to so conspiring, as well for the
purpose of proving the existence of the conspiracy
as for the purpose of showing that any such person
was a party to it."
112. Thus, the substantive section of the IPC i.e. Section 120-A
adumbrated thereon Section 10 of the Indian Evidence Act
give us the legislative provisions applicable to conspiracy and
its proof.
113. A conspiracy is a march under a banner. The very
agreement, concert or league is the ingredient, of the offence.
Like most crimes, conspiracy requires an act (actus reuse) and
an accompanying mental State (mens rea). From the definition
of conspiracy in Section 120-A, it is evident that the agreement
constitutes the act and the intention to achieve unlawful object
constitutes the mental state. All conspirators are liable for the
crimes committed in furtherance of the conspiracy besides
being liable for committing an offence of conspiracy itself.
Pertaining to conspiracy, law punishes conduct that threats to
produce the harm as well as the conduct that actually
produces the harm. In this, lies the difference between the
offence of conspiracy and general penal offences. In case of
general offences, attempt to commit a crime merges when the
crime is completed but in case of conspiracy, punishment is for
both, the conspiracy and the completed crime. This
distinctiveness of the offence of conspiracy makes all
conspirators as agents of each other. Conspiracy, therefore,
criminalizes the agreement to commit a crime. Inherently,
conspiracy is a clandestine activity. Its covenants are not
formed openly. It has to be inferred from circumstantial
evidence of co-operation.
114. If conspiracies are hatched in the darkness of secrecy
and direct evidence is seldom forthcoming and if the offence is
to be proved in relation to the acts, deeds or things done by
the co-conspirators, the question would arise as to what is the
nature of these acts, deeds or things. Is merely moving around
together or seen in each other's company sufficient? If not,
what more should be there from which it could be inferred that
the conspirators were acting to achieve the desired offence in
furtherance of a crime.
115. In the decision reported as State of Maharashtra and Ors.
v. Som Nath Thapa and Ors. (1996) 4 SCC 659 illuminating on
this grey area, the Supreme Court observed that for a person
to conspire with another, he must have knowledge of what the
co-conspirators were wanting to achieve and thereafter having
the intent to further the illegal act takes recourse to a course
of conduct to achieve the illegal end or facilitate its
accomplishment. Except for extreme cases, intent could be
inferred from knowledge for example whether a person was
found in possession of an offending article, no legitimate use
of which could be done by the offender. To illustrate, a person
is found in possession of 100 Kg. of RDX, is proved to be
visiting or visited by "A" against whom there is a charge of
conspiring to blow up a public place. Here, the recovery of the
offending article would be enough to infer a charge of
conspiracy. However, such instances apart, it was held that
law would require something more. This something more
would be a step from knowledge to intent. This was to be
evidenced from informed and interested cooperation,
simulation and instigation. The following passage from People
v. Lauria 251, California APP 2 (d) 471 was cited.
"All articles of commerce may be put to illegal
ends,.... but all do not have inherently the same
susceptibility to harmful and illegal use....This
different is important for two purposes. One is for
making certain that the seller knows the buyer's
intended illegal use. The other is to show that by
the same he intends to further promote and
cooperate in it. This intent, when given effect by
overt act, is the gist of conspiracy. While it is not
identical with mere knowledge that another
proposes unlawful action, it is not unrelated to such
knowledge........ The step from knowledge to intent
and agreement may be taken. There is more than
suspicion, more than knowledge, acquiescence,
carelessness, indifferent, lack of concern. There is
informed and interested cooperation, simulation,
instigation."
116. To elucidate further, it is most apposite to quote
following observations of Supreme Court in the decision
reported as Kehar Singh v State (Delhi Administration) AIR
1988 SC 1883:-
"Generally, a conspiracy is hatched in secrecy and
it may be difficult to adduce direct evidence of the
same. The prosecution will often rely on evidence of
acts of various parties to infer that they were done
in reference to their common intention. The
prosecution will also more often rely upon
circumstantial evidence. The conspiracy can be
undoubtedly proved by such evidence direct or
circumstantial. But the Court must enquire whether
the two persons are independently pursuing the
same and or they have come together to the
pursuit of the unlawful object. The former does not
render them conspirators, but the latter is. It is,
however, essential that the offence of conspiracy
requires some kind of physical manifestation of
agreement. The express agreement, however, need
not be proved. Nor actual meeting of two persons is
necessary. Nor it is necessary to prove the actual
words of communication. The evidence as to
transmission of thoughts sharing the unlawful
design may be sufficient. Gerald Orchard of
University of Canterbury, New Zealand 1974 C L R
297 explains the limited nature of this proposition:
Although it is not in doubt that the
offence requires some physical
manifestation of agreement, it is
important to note the limited nature of
this proposition. The law does not
require that the act of agreement take
any particular form and the fact of
agreement may be communicated by
words or conduct. Thus, it has been said
that it is unnecessary to prove that the
parties "actually came together' and
agreed in terms" to pursue the unlawful
object; there need ever have been an
express verbal agreement, it being
sufficient that there was "a tacit
understanding between conspirators as
to what should be done.
I share this opinion, but hasten to add that the
relative acts or conduct of the parties must be
conscientious and clear to mark their concurrence
as to what should be done. The concurrence cannot
be inferred by a group of irrelevant facts artfully
arranged so as to give an appearance of coherence.
The innocuous, innocent or inadvertent events and
incidents should not enter the judicial verdict. We
must thus be strictly on our guard. (Emphasis
Supplied)
117. Since more often than not, conspiracy would be proved
on circumstantial evidence, four fundamental requirements as
laid down as far back as in 1881 in the judgment reported 60
years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur
Sapru i.e. 1941 All ALJR 416, Queen Empress v. Hoshhak may
be re-emphasized:-
I. That the circumstances from which the conclusion is
drawn be fully established;
II. That all the facts should be consistent with the
hypothesis of guilt;
III. That the circumstances should be of a conclusive nature
and tendency;
IV. That the circumstances should, by a moral certainty,
actually exclude every hypothesis but the one proposed to be
proved;
118. The discussion pertaining to standard of proof required
for proving the offence of conspiracy can be summarized by
the following observations of Supreme Court in the decision
reported as State (NCT of Delhi) v Navjot Sandhu AIR 2005 SC
3820:-
"A few bits here and a few bits there on which the
prosecution relies cannot be held to be adequate for
connecting the accused in the offence of criminal
conspiracy. (Emphasis Supplied)
119. From the afore-noted narrative of the investigation and
evidence relating to the same or gathered during
investigation, it is apparent that the prosecution has sought to
infer guilt of Surinder Mishra, Tejinder Virdi and Jaspreet Virdi
mainly from the fact that they were in regular touch with the
killers of the deceased and that of Romesh Sharma from the
fact that he was in regular touch with the persons who, in turn,
were in contact with the killers of the deceased. Motive has
been attributed to Romesh Sharma of being fed up with the
deceased who allegedly became over bearing and over
demanding. Thus, the success of the case set up by the
prosecution against Romesh Sharma, Surinder Mishra, Tejinder
Virdi and Jaspreet Virdi is heavily hinged upon the fact whether
the prosecution has been able to establish that Hemchand @
Nani, Sant Ram @ Pramod @ Prahlad and Ramesh @ Bobby @
Rajesh @ Ajay @ Raju were the killers of the deceased. We
clarify here that we should not be understood to mean that the
case of the prosecution would fail if said fact is not
established. What we intend of convey is that said evidence
has been used as a vital chain to infer conspiracy.
120. In that view of the matter, we proceed to first deal with
the evidence against Hemchand @ Nani, Sant Ram @ Pramod
@ Prahlad and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju
followed by the evidence martialled against Surinder Mishra,
Tejinder Virdi and Romesh Sharma, noting that Jaspreet Virdi
has been acquitted and the State has not challenged her
acquittal.
DISCUSSION PERTAINING TO HEM CHAND @ NANI, SANT RAM
AND RAMESH @ BOBBY @ RAJESH @ AJAY @ RAJU
121. The first incriminating circumstance enumerated by the
prosecution against the aforesaid accused is that Ram Achal
Tiwari PW-16, stated in his statement Ex.PW-6/1 that he
witnessed the aforesaid accused murdering the deceased. It is
settled law that a first information report stands on a footing
different than statements recorded by the police under Section
161 Cr.P.C.
122. As already noted hereinabove in paras 49 to 51, Ram
Achal Tiwari resiled from his statement Ex.PW-6/1 while
deposing in Court.
123. In this regard, counsel for the State argued that
notwithstanding that Ram Achal Tiwari resiled from his
statement Ex.PW-6/1, the same can be relied upon to bring
home the guilt of the aforesaid accused, for the reason that
the facts and circumstances surrounding the recording of the
statement Ex.PW-6/1 as also the deposition of Ram Achal
Tiwari in Court establishes that the statement Ex.PW-6/1 is a
truthful account of the incident in question stated
contemporaneously soon after the incident by Ram Achal
Tiwari.
124. The first circumstance pointed out by the learned counsel
for the State is that Ram Achal Tiwari admitted that he gave
the information to the police about the murder of the deceased
pursuant to which Inspector Jagdish Meena recorded his
statement. The second circumstance pointed out by the
learned counsel for the State is that a perusal of the
endorsement Ex.PW-6/1A which was penned beneath the
statement Ex.PW-6/1 of Ram Achal Tiwari shows that the
statement Ex.PW-6/1 was recorded by Inspector Jagdish Meena
soon after the murder of the deceased which implies that the
police had no time to fabricate the statement of Ram Achal
Tiwari. The third circumstance pointed out by the learned
counsel for the State is that Ram Achal Tiwari admitted that
the statement Ex.PW-6/1 bears his signatures. The fourth
circumstance pointed out by the learned counsel for the State
is that Ram Achal Tiwari admitted that the portions of the
statement Ex.PW-6/1 which do not relate to the complicity of
accused persons in the crime of the murder of the deceased
were stated by him to the police. The fifth circumstance
pointed out by the learned counsel for the State is that Ram
Achal Tiwari did not make any complaint to the senior police
officers or the court that his statement was wrongly recorded
by the police.
125. From the testimony of Ram Achal Tiwari, it is apparent
that he has been brought over by the accused, evidenced by
the fact that after admitting having made a statement to
Insp.Jagdish Meena and also admitting that the said statement
was Ex.PW-6/1 he went on to admit that he signed the
statement after it was written. Thus, at the first instance he
admitted the entire contents of the statement Ex.PW-6/1. He
also admitted various statements made by him in the said
statement which were not directly relating to the accused. He
resiled from those sentences in his statement which inculpated
the accused. He also admitted that his shirt Ex.P-2 was seized
vide memo Ex.PW-16/1. Surprisingly, he denied that the same
was stained with blood. We see no reason why the police
would seize his shirt if it had no evidentiary value. Obviously,
the shirt was seized because it was stained with blood and that
this would be good evidence to show the presence of Ram
Achal Tiwari near the deceased when she was murdered and
hence would make him a credible eye witness.
126. We have on record the testimony of Sunil Kumar PW-15
and Hari Chand PW-17 which throw light on the
contemporaneous utterances of Ram Achal Tiwari. Needless to
state on proper proof thereof, these utterances of Ram Achal
Tiwari would be admissible under Section 6 of the Evidence Act
as res gestae.
127. What is the law of res gestae?
128. Section 6 of Evidence Act embodies the principle of law
usually known as the rule of res gestae recognized in English
law. The essence of the doctrine is that facts, though not in
issue, but so connected with the fact in issue as to form part of
the same transaction, become relevant and hence admissible.
The reason is that the circumstances, facts and declarations
which grow out of the main facts are contemporaneous with it
and serve to illustrate the fact in issue. In that sense, they can
safely be said to be an incident of the event under
circumstances, and being made or done under the immediate
influence of the principal transaction, characterize or explain
the principal transaction.
129. Thus, spontaneity and immediacy of the statements or
facts in relation to the fact in issue which are made without
premeditation or artifice and without a view to the
consequences are admissible, because they are the natural
result of the act they characterize or elucidate. To form a
particular statement as a part of the same transaction,
utterances must be simultaneous with the incident or soon
after it so as to make it reasonably certain that the speaker is
still under stress of excitement in respect of the transaction in
question. To put it simply: Everything that may be fairly
considered an incident of the event under consideration would
be admissible. However, it has to be guarded that there should
be no time interval to allow fabrication or to reduce the
statements to the mere narrative of a past event. If there is an
interval, however slight it may be, which was sufficient for
fabrication then the statement is not part of res gestae.
130. The principles relatable to the rule of res gestae are four
in number:-
I The declarations (oral or written) must relate to the act
which is in issue or relevant thereto; they are not admissible
merely because they accompany an act. Moreover the
declarations must relate to and explain the fact they
accompany, and not independent facts previous or subsequent
thereto.
II The declarations must be substantially contemporaneous
with the fact and not merely the narrative of a past.
III The declaration and the act may be by the same person,
or they may be by different persons, eg, the declarations of
the victim, assailant and by-standers.
IV Though admissible to explain or corroborate, or to
understand the significance of the act, declarations are not
evidence of the truth of the matters stated.
131. To appreciate as to what would be admissible as res
gestae we may note two decisions taking the extreme view
points and thereafter, with reference to the principles
applicable to res gestae, determine what evidence is
admissible as res gestae.
132. In the decision reported as R Vs. Bedingfield, 1879, 14
Cox CC 341, in a charge of murder, the exclamation of the
deceased while rushing with the throat cut, out of his house a
minute or two before, shouting „oh aunt see what Bedingfield
has done to me' was rejected as admissible evidence on the
premise that the transaction was over. This is the narrowest
view ever taken by any Court in the field of admissibility of res
gestae evidence. The swing in the other extreme is in the
decision of Lord Denham C.J. in Rough Vs. Gw Rly. Co., 1841
(1) QB 51 wherein it was held that concurrence of time when
something was spoken or done, though material, is not
essential. As per this view, anything said much after the
incident was admissible, as long as it related to the incident in
question.
133. The correct view is the middle view extracted by us in
paras 128 to 130 above.
134. Before we use the testimony of the said two witnesses,
we must consider the challenge to the veracity of the
testimony of the said two persons, for only if we hold that the
said two persons have deposed truthfully, can we use their
testimony with reference to the contemporaneous utterances
of Ram Achal Tiwari.
135. What has been deposed to by Sunil Kumar and Hari
Chand has been noted by us in paras 52 to 55 above. Only
two improvements vis-à-vis what they stated as per their
statements recorded under Section 161 Cr.P.C. and their
testimony in Court stand highlighted. The first is the two not
stating in their statement recorded under Section 161 Cr.P.C.
that Sonu @ Jaspreet Virdi and Dolly @ Tejinder Virdi have
come in the morning to the farmhouse and the second is that
they have not stated in their statement recorded under
Section 161 Cr.P.C. that the two ladies used to visit the
farmhouse and speak to the accused who were staying in the
farmhouse. But for the two aforesaid improvements, both of
them have deposed facts which they contemporaneously
disclosed to the police. Apart from the aforesaid two
improvements, we find nothing else to discredit the two
witnesses.
136. The first so called improvement made by these two
witnesses pertaining to Sonu and Dolly coming to the
farmhouse in the morning with a Pandit are not improvements
on their previous statements, for the reason, in their
statements recorded under Section 161 Cr.P.C. both of them
have clearly stated that two Madams along with a Pandit had
visited the farmhouse in the morning. The only difference is,
that while deposing in Court, they named the two Madams
being Sonu and Dolly. The only material improvement of
consequence is they stating for the first time that even on
previous occasions they had seen Sonu and Dolly visiting the
farmhouse and speaking with the persons who had committed
the murder of the deceased.
137. We shall be discussing the effect of this material
improvement in the statement of the two witnesses while
discussing the evidence against Tejinder Virdi @ Dolly, but
with respect to the testimony of these two witnesses as to
what they saw and heard at the farmhouse on the day of the
incident, we find the two to be credible witnesses.
138. We note that the extensive cross examination of these
two witnesses has yielded nothing adverse.
139. It was urged that both witnesses were planted by the
police because there was no proof that they were employed as
security guards by Vikram Singh PW-30. It was urged that
Vikram Singh PW-30 led no evidence of paying any salary to
Sunil Kumar and Hari Chand.
140. With reference to the testimony of Sunil Kumar, as noted
in para 53 above, he admitted that no letter of appointment
was issued to him. We also note that Vikram Singh PW-30 has
proved the attendance sheet Ex.PW-30/1 as also the
agreement Ex.PW-30/2 which he had entered into with Romesh
Sharma to provide security at the farmhouse. There is thus
evidence that through Vikram Singh, security guards were
provided at the farmhouse. It is no doubt true that the
attendance sheet as also the agreement in question are fairly
unofficous documents and Vikram Singh has not maintained
any record pertaining to the persons engaged by him. But, we
cannot be oblivious to the ground realities prevailing in this
country of small scale businesses being run in a most shoddy
manner and record being maintained in most unofficious
manner.
141. Though he has turned hostile, Dilbagh Singh PW-19 has
deposed that there were security guards deployed at the
farmhouse. His testimony also proves the fact that security
guards were deployed at the farmhouse. It is settled law that
testimony of a hostile witness is not to be thrown out lock,
stock and barrel and can be used if corroborated by other
evidence.
142. Sunil Kumar and Hari Chand have no axe to grind against
the accused. Even Vikram has no axe to grind against the
accused. We see no reason why the three would depose
falsely. Thus, we hold that there is sufficient evidence on
record to establish that Sunil and Hari Chand were deployed as
security guards at the farmhouse and were present at the
security gate of the farmhouse in the morning and remained
there till late afternoon.
143. The testimony of Sunil Kumar and Hari Chand, contents
whereof have been noted by us in paras 52 to 55 above prove
that accused Hem Chand, Sant Ram and Ramesh were present
in the farmhouse when the murder took place and that after
the deceased went inside the building the three came out of
the farmhouse and were followed soon by Ram Achal Tiwari
who was perplexed and saying that the deceased had been
murdered by the said accused, left the farmhouse saying that
he was going to inform the police.
144. The said utterances of Ram Achal Tiwari pertaining to the
three being the murderers of the deceased as deposed to by
Sunil Kumar and Hari Chand are admissible in evidence and
thus the same prove the complicity of Hem Chand, Sant Ram
and Romesh in the crime.
145. Through the testimony of Sunil Kumar and Hari Chand we
also have evidence of the close proximity in terms of time and
place when the deceased and the said three accused were
seen together vis-à-vis the time the deceased was found dead
and the three left the place. Sunil Kumar has categorically
deposed and so has Hari Chand that after Kunjum entered the
kothi, after 5-7 minutes the three accused along with Rakesh
(absconder) were seen by them going inside the kothi and the
four came out of the kothi after about 15-20 minutes and
along with their other associates left the farmhouse and never
came back.
146. There is no evidence that any other person entered the
farmhouse.
147. The testimony of Sunil Kumar as also Hari Chand
establishes that the said three accused along with their four
other associates were residing in the farmhouse, in the servant
quarter, and fled soon after Kunjum was murdered and never
came back. There is evidence that the said three accused
abscond. Their four other associates are proclaimed offenders.
148. Much was sought to be made out with reference to the
statement Ex.PW-6/1 of Ram Achal Tiwari where he named
Pramod as one of the persons who participated in the assault
on Kunjum. We note that in his supplementary statement
Ex.PW-16/DA, Ram Achal had clarified that the reference by
him in his earlier statement to Pramod was actually a
reference to Sant Ram.
149. We conclude by holding that against Hem Chand @ Nani,
Sant Ram and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju the
prosecution has successfully established that the three were a
part of the group of seven persons staying in the servant
quarters of the farmhouse and the three were seen entering
the farmhouse after Kunjum and Ram Achal Tiwari entered the
farmhouse. No other person entered the farmhouse. After 15-
20 minutes of the said accused entering the farmhouse, they
left and Kunjum was found murdered soon thereafter inside
the farmhouse. The said accused absconded till they were
apprehended. Contemporaneous utterances of Ram Achal
Tiwari inculpate the three accused. Ignoring the recovery of
the gold chain stated to be belonging to the deceased
pursuant to the disclosure statement of Hem Chand, we
conclude by recording our concurrence with the findings
returned by the learned Trial Judge pertaining to the guilt of
Hem Chand @ Nani, Sant Ram and Ramesh @ Bobby @ Rajesh
@ Ajay @ Raju.
150. We now deal with the evidence martialled against
Surinder Mishra. As noted in para 108 (B) above, the
prosecution has sought to establish against Surinder Mishra
that he employed the killers of the deceased at Jai Mata Di
farmhouse; (ii) Surinder Mishra was in regular touch with the
killers of the deceased; (iii) Surinder Mishra met the killers of
the deceased a day prior to the murder of the deceased; (iv)
Surinder Mishra visited the place of the murder of the
deceased on the day of the murder of the deceased and met
the killers of the deceased; (v) Surinder Mishra absconded
after the murder of the deceased; (vi) Surinder Mishra
concealed his identity after the murder of the deceased; (vii)
Surinder Mishra had motive to do away with the deceased;
(viii) Surinder Mishra did not offer condolence to the family of
the deceased; and (ix) Surinder Mishra did not inform Romesh
Sharma about the death of the deceased.
151. The learned Trial Judge has additionally used as a piece
of incriminating evidence, the fact that Surinder Mishra has
given false answers when he was examined under Section 313
Cr.P.C.
152. From the testimony of the various witnesses noted
hereinabove it is apparent that Ram Achal Tiwari PW-16 resiled
from his earlier statement and disclaimed having told the
police that Surinder Mishra had brought 7 persons to the
farmhouse i.e. the persons who were involved in the actual
murder of Kunjum. Though Sunil Kumar PW-15 and Hari Chand
PW-17 stated before the police that Surinder Mishra had
deployed Hem Chand @ Nani, Sant Ram and Ramesh as also
their associates, but while being examined in Court, the
learned Public Prosecutor did not put any question to them on
said aspect and thus neither of the two has stated that
Surinder Mishra had deployed the said three persons and their
associates at the farmhouse. Under the circumstances it has
to be held that there is no legally admissible evidence of
Surinder Mishra having deployed Hem Chand, Sant Ram and
Ramesh and their four other associates at the farmhouse. But,
the said fact not being proved is immaterial for the reason that
Sunil Kumar PW-15 and Hari Chand PW-17 have categorically
deposed that Surinder Mishra used to regularly come and meet
the said 7 persons and on the day of the murder i.e. 20 th March
1999 he had come to the farmhouse in the morning at around
8:00 AM and had spent about half an hour with Nani, Sant
Ram, Ramesh etc. It is thus proved on record that Surinder
Mishra was regularly meeting the assassins of Kunjum and had
even met them in the morning. Rani Budhiraja PW-27, the
mother of the deceased has deposed that Surinder Mishra had
provided the keys of the kothi to her daughter in the morning
of 20.3.1999. Through the testimony of Pawan Budhiraja PW-
28 and the testimony of Rani Budhiraja PW-27 as also the
three letters Ex.PW-27/B, Ex.PW-28/B and Ex.PW-28/C it is
apparent that Surinder Mishra knew that the deceased was to
perform puja at the farmhouse. He gave the key of the
farmhouse to the deceased in the morning of 20.3.1999 and
met the hired killers the same morning with whom he spoke
for about half an hour.
153. Pertaining to Surinder Mishra being arrested at
Ahmedabad the relevant witnesses are Amara Bhai PW-5 and
Insp.Tarun Kumar PW-12. Before discussing the evidence of
the said two witnesses and the inferences which can be drawn,
we note the submissions made by learned counsel for Surinder
Mishra, arising out of the arrest memo Ex.PW-32/1 which
shows Surinder Mishra‟s arrest at Delhi on 23.3.1999. It was
urged that the arrest memo Ex.PW-32/1 is proof of the fact
that Surinder Mishra was apprehended at Delhi and thus the
claim to the contrary of his being arrested at Ahmedabad is
false; thus, it would be incorrect to say that Surinder Mishra
absconded and tried to conceal his identity. It was urged that
there is no evidence to show that Surinder Mishra was
produced before a Magistrate at Ahmedabad and no order was
produced showing that Delhi Police officials obtained the
custody of Surinder Mishra by filing any application in the
Court of any Magistrate at Ahmedabad. It was urged that it
has not been proved that the entry Ex.PW-5/1 in the Guest
House Register of Kapadia Guest House was in the handwriting
of Surinder Mishra.
154. It may be stated at the outset that the arrest memo
Ex.PW-32/1 shows the formal arrest of Surinder Mishra by the
Delhi Police in the instant FIR.
155. The testimony of Inspector Tarun Kumar PW-12 and
Amarbhai PW-5 clearly shows that Surinder Mishra was
apprehended at Kapadia Guest House at Ahmedabad and was
staying there under an assumed name of Raj Kumar Bhatia.
Amarbhai PW-5 the Manager of the Guest House has deposed
that the entry Ex.PW-5/1 in the Guest House Register was
made in his presence by Surinder Mishra. Thus, it stands
established that Surinder Mishra was apprehended at Kapadia
Guest House in Ahmedabad where he was staying under an
assumed name.
156. Thus, we have on record evidence that Surinder Mishra
had provided the key to Kunjum in the morning of 20 th March
1999 to enable her to perform puja at the farmhouse. He
knew that Kunjum would be visiting the farmhouse on said
day. Surinder Mishra had been meeting the hired assassins
and even on the morning of the day when Kunjum was
murdered had met the hired assassins and had spoken to
them. We have evidence on record that Surinder Mishra
absconded from Delhi and attempted to conceal his identity by
staying under an assumed name of Raj Kumar Bhatia at
Ahmedabad.
157. This takes us to an area of discussion which has
considerable bearing on the fate of Dolly @ Tejinder Virdi and
Romesh Sharma. It relates to the motive to murder Kunjum. It
relates to who conspired to murder Kunjum.
158. As per the prosecution the motive was of Romesh
Sharma being fed up with Kunjum and he using the services of
Dolly and Surinder Mishra who were meeting him as his
parokars to contact the hired killers and execute the plan to
murder Kunjum. But, through the testimony of Pawan
Budhiraja PW-28 and the testimony of Vikram Singh PW-30 we
have good evidence on record that Surinder Mishra was not
liking Kunjum and her family getting close to Romesh Sharma.
Both of them have proved that at the behest of Surinder
Mishra, Pawan Budhiraja brother of Kunjum was got assaulted
by musclemen because Surinder Mishra was most unhappy
with regards to the close relationship between Romesh
Sharma and Kunjum. It may be noted that Surinder Mishra is
the nephew of Romesh Sharma and was managing the affairs
of Romesh Sharma. It is obvious that if Romesh Sharma was
screened from Kunjum and her family members, Surinder
Mishra would have a field day in managing the affairs of
Romesh Sharma who had entangled himself in the clutches of
the law with respect to some dispute with a gentleman called
Suba, who is none other than a controversial politician whose
allegiance to this country and even his nationality is in doubt.
Thus, we have on record good evidence that even Surinder
Mishra had a motive to kill Kunjum.
159. Ignoring circumstance (viii) and (ix) as incriminating
evidence i.e. Surinder Mishra not offering condolence to the
family of Kunjum and not informing Romesh Sharma about the
death of the deceased, which are trivial matters, we conclude
qua Surinder Mishra by recording that an independent motive
attributable to Surinder Mishra alone, his being in constant
touch with the killers of Kunjum, he having given the key to
Kunjum to enter the farmhouse in the morning of 20.3.1999,
he having knowledge that Kunjum would be visiting the
farmhouse on 20.3.1999, he having visited the farmhouse in
the morning of 20.3.1999 and remaining in the company of the
killers of Kunjum for about half an hour, he having absconded
from Delhi and he having attempted to conceal his identity are
circumstances complete enough wherefrom any reasonable
person would draw a presumption or would act on the
supposition that its stand proved that Surinder Mishra had a
definite hand in the murder of Kunjum.
160. Proceeding further to discuss the evidence pertaining to
Tejinder Virdi @ Dolly, we note that in holding her guilty, the
first circumstance enumerated by the prosecution against her
is that she was in regular touch with Surinder Mishra as also
Romesh Sharma and that she was present when Romesh
Sharma hatched the conspiracy to kill Kunjum and used the
services of Surinder Mishra and Tejinder Virdi to get in touch
with hired killers.
161. Inextricably linked is the issue whether it stands proved
that Romesh Sharma had at all conspired as alleged.
162. Thus, before we discuss any other evidence inculpating
Tejinder Virdi, it would be advisable to discuss the evidence
pertaining to Romesh Sharma.
163. It is apparent that the prosecution sought to link Romesh
Sharma with reference to his being in regular touch with
Surinder Mishra, Tejinder Virdi and her sister Jaspreet Virdi,
who has been acquitted. As per the charge sheet the
conspiracy was hatched in the meetings held beginning from
the month of February 1999 till the last meeting which took
place on 19th March 1999.
164. It may be noted at the outset that Romesh Sharma was
in jail for the last about 1 year and needed parokars to take
necessary legal steps for a proper defence in the criminal
cases against him. He also required instructions to be given
with respect to his properties. Thus, there is nothing unusual
or incriminating in the fact that Romesh Sharma was meeting
Surinder Mishra, Tejinder Virdi, Jaspreet Virdi and the brother
of Kunjum i.e. Pawan Budhiraja.
165. The prosecution has led evidence that Romesh Sharma
had been meeting Surinder Mishra, Tejinder Virdi, Jaspreet
Virdi and Pawan Budhiraja during Court hearings when he was
produced in Court as also in jail. A perusal of the testimony of
Mahinder Prasad PW-4, noted in paras 66 and 67 above and
the applications filed by Romesh Sharma in Court to have a
meeting with various persons gist whereof have been noted in
para 37 above, shows that eleven meetings took place
between Romesh Sharma, Surinder Mishra, Dolly and Sonu
between the month of February 1999 till the day of the murder
of the deceased at Tihar Jail or in the Court.
166. The first meeting took place on 16.2.1999 when Surinder
Mishra, Sonu and Pawan Budhiraja met Romesh Sharma at the
Court. The next meeting took place on 23.02.1999 in which
Surinder Mishra, Sonu and Dolly were present at the Court. The
third meeting took place at Tihar Jail on 05.03.1999 in which
Surinder Mishra and Dolly were present. The fourth meeting
took place in jail on 09.03.1999 in which Surinder Mishra and
Dolly were present. The next meeting took place in jail on
12.03.1999 in which Sonu, Dolly and Pawan Budhiraja were
present. On 15.03.1999 two meetings took place between
Romesh Sharma, Surinder Mishra, Sonu and Dolly at Tihar Jail
and the court. On 16.03.1999 a meeting took place between
Romesh Sharma, Sonu, Dolly and Pawan Budhiraja at Tihar Jail.
On 18.03.1999 two meetings took place between Romesh
Sharma, Surinder Mishra and Sonu at Tihar Jail and the court.
On 19.03.1999 a meeting took place between Romesh
Sharma, Surinder Mishra, Dolly and Pawan Budhiraja at Tihar
Jail.
167. It is obvious that no conspiracy could have been hatched
by accused Romesh Sharma, Surinder Mishra, Sonu and Dolly
in the meetings held between them on 23.02.1999,
05.03.1999, 16.03.1999 and 19.03.1999 since Pawan
Budhiraja PW-28, the brother of the deceased, was also
present in the said meetings. Therefore, the conspiracy, if any,
could have been hatched by aforesaid persons in the meetings
held between them on 16.02.1999, 09.03.1999, 12.03.1999,
15.03.1999 and 18.03.1999 at Tihar Jail/Court.
168. The testimony of Mahinder Prashad PW-4, provides an
answer to the question whether at all a conspiracy could be
hatched in jail. As per the said witness, there is a distance of
at least 2-2½ feet between the visitors and the inmates. The
meeting between the visitor and the inmate takes place in a
crowded room. The witness further stated that the jail officials
are always patrolling in the room where the meetings take
place and keep an eye on the visitors and the inmates. In such
circumstances, the possibility that accused Romesh Sharma,
Surinder Mishra, Dolly and Sonu would have hatched the
conspiracy to murder the deceased in the meetings held
between them in the jail is too remote. Likewise, the
possibility that aforesaid accused would have hatched the
conspiracy to murder the deceased in the meetings held
between them on 16.02.1999, 15.03.1999 and 18.03.1999 at
the Court is also remote as the said meetings were held in the
presence of a police officer.
169. In this regard it assumes importance to consider the
letters Ex.PW-27/B, Ex.PW-28/B and Ex.PW-28/C for the reason
the prosecution claims that as part of the conspiracy, Romesh
Sharma facilitated the murder by requiring Kunjum to go to his
farmhouse and perform puja and as per the plan, hired killers
would murder Kunjum.
170. In paras 26 to 28 above, we have extracted the contents
of the said three letters, the three letters show that Kunjum
was getting frustrated as she was being hampered in her task
to perform puja at the farmhouse because the key to the
farmhouse was not being given to her. The incomplete letter
Ex.PW-27/B written by Kunjum on 19.3.1999 shows that till
19.3.1999 the key to the farmhouse was not being given to
her. Now, if at all a conspiracy was hatched as alleged by the
prosecution, everybody would have facilitated the entry of
Kunjum in the farmhouse and not obstructed the same. There
is thus, considerable doubt whether at all any conspiracy was
hatched till 19th March 1999. It assumes importance that
Surinder Mishra handed over the key of the farmhouse to
Kunjum as deposed to by Kunjum‟s mother, in the morning of
20th March 1999 the day Kunjum was murdered. Thus one can
infer that by 19.3.1999 it was not even certain whether
Kunjum would be visiting the farmhouse on 20.3.1999.
171. It is true that Romesh Sharma met Surinder Mishra and
Dolly at Tihar Jail on 19.3.1999, but it is important to note that
even Pawan Budhiraja was present with them. The
circumstance used by the learned Trial Judge of Romesh
Sharma meeting Surinder Mishra and Dolly in the jail as
incriminating is in blissful ignorance of the fact that Pawan
Budhiraja, brother of Kunjum was also present and this rules
out any discussion regarding execution of the plan to murder
Kunjum.
172. It is no doubt true that Romesh Sharma had desired
Kunjum to perform puja at the farmhouse. But this was not for
the first time that a puja was to be performed. Letters Ex.DW-
1/41 to Ex.DW-1/44 as also the testimony of Pandit Deepak
Sharma PW-18 establishes that even in the past, Romesh
Sharma and Kunjum used to perform pujas at various
properties, including the farmhouse, owned by Romesh
Sharma. The letters Ex.DW-1/1 to Ex.DW-1/58, Ex.DX, Ex.DZ,
Ex.PW-27/B, Ex.PW-28/B and Ex.PW-28/C establish that both
Romesh Sharma and Kunjum used to frequently perform pujas.
173. Pertaining to the motive of Romesh Sharma i.e. that he
got fed up with Kunjum who became over bearing and
demanding, has been gullibly held proved by the learned Trial
Judge with reference to Romesh Sharma giving a house to
Kunjum and his desire of giving an imported car to her. The
learned Trial Judge has acted on the supposition that Romesh
Sharma did so because Kunjum was becoming too demanding.
174. The letters of Kunjum written to Romesh Sharma which
were proved in defence through the testimony of Kunjum‟s
brother have been discounted by the learned Trial Judge on
the reasoning that Romesh Sharma did not hand over the
letters to the police during investigation and that he has
selectively handed over the letters which were helpful for his
defence and he must have concealed letters indicative of his
guilt.
175. We just cannot fathom the logic of the reasoning of the
learned Trial Judge.
176. We have noted the dates of the various letters proved in
defence in para 82 above. Brief contents of the same have
been noted by us in paras 84 to 104 above. Far from proving
or establishing even remotely that Kunjum was getting too
demanding or over bearing, the same show that Kunjum was
desiring nothing but the company of Romesh Sharma. She
never sought anything of material value from Romesh Sharma
and that whatever Romesh Sharma gave to her was out of his
free volition.
177. Sh.Pawan Sharma learned counsel for the State
vehemently urged that the letters Ex.PW-28/B, Ex.PW-28/C and
the letters Ex.DW-1/12, Ex.DW-1/13, Ex.DW-1/14 to Ex.DW-
1/18, Ex.DW-1/25 to Ex.DW-1/27 establish that Kunjum was
demanding things of material value from Romesh Sharma.
178. We do not think so. With reference to Ex.PW-28/B and
Ex.PW-28/C, it was highlighted that Romesh Sharma told
Kunjum to buy an ordinary Indian car and expressed his
anguish in not being able to purchase a luxurious car for her.
Counsel sought to draw an inference that the same shows that
Kunjum was wanting an expensive car and Romesh Sharma
was expressing his helplessness by writing to her to purchase
a car of lesser value. The argument is without any basis for
the reason the letters show the reverse. They show that it was
Romesh Sharma who desired to give a luxurious car to
Kunjum, who was wanting nothing, and in that context Romesh
Sharma told Kunjum to buy an ordinary car. Similarly, with
reference to the other letters, brief contents whereof or
relevant extracts whereof have been noted by us in the
preceding paragraphs, it is apparent that Kunjum was
demanding nothing from Romesh Sharma.
179. The letters exchanged between the two, show the desire
of both to marry each other.
180. Thus, we hold that far from motive being established as
alleged by the prosecution, the reverse stands established i.e.
that Romesh Sharma and Kunjum were in love and desired the
company of each other. It does not establish that Romesh
Sharma had got fed up with Kunjum.
181. It is in this context it assumes importance to note once
again that till 19th March 1999 Kunjum did not have the keys of
the farmhouse and had Romesh Sharma a role in her murder,
the first thing he would have ensured would be to ensure that
she had the keys of the farmhouse, well in time.
182. Wherefrom has the learned Trial Judge drawn a
conclusion that at the funeral of Kunjum, Romesh Sharma
enacted a drama, has baffled us. A grieving lover falling over
the dead body of his mate and performing the ritual of a
marriage can well be an expression of last love and need not
necessarily be a drama.
183. It is no doubt true that Romesh Sharma denied each and
every circumstance put to him and gave false answers to his
relationship with Surinder Mishra i.e. Surinder Mishra being his
nephew and his meeting his parokars. But, therefrom nothing
adverse can be drawn for the reason, it was observed by the
Supreme Court in the decision reported as 1984 (1) SCC 116
Sharad Birdhichand Sharda Vs. State of Maharashtra:-
"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 this: where various links
in a chain are in themselves complete, then a false
plea or a false defence may be called into 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 on lacuna in the prosecution case, the same
could be cured or supplied by a false defence or a plea
which is not accepted by a Court.
.....
It may be necessary her to notice a very forceful
argument submitted by the Additional Solicitor-
General relying on a decision of this Court in
Deonandan Mishra Vs. State of Bihar 1955 Cri LJ 1647,
to supplement his argument that if the defence case is
false it would constitute an additional link so as to
fortify the prosecution case. With due respect to the
learned Additional Solicitor General we are unable to
agree with the interpretation given by him of the
aforesaid case, the relevant portion of which may be
extracted thus:
"But in a case like this where the various links as
stated above have been satisfactorily made out
and the circumstances point to the appellant as
the probable assailant, with reasonable
definiteness and in proximity to the deceased as
regards time and situation..... such absene of
explanation or false explanation would itself be
an additional link which completes the chain."
It will be seen that this Court while taking into account
the absence of explanation or a false explanation did
hold that it will amount to be an additional link to
complete the chain but these observations must be
read in the light of what this Court said earlier, viz.,
before a false explanation can be used as additional
link, the following essential conditions must be
satisfied:
(1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the
accused with reasonable definiteness, and
(3) the circumstance is in proximity to the time and
situation.
If these conditions are fulfilled only then a Court can
use a false explanation or a false defence as an
additional link to lend an assurance to the Court and
not otherwise. On the facts and circumstances of the
present case, this does not appear to be such a case.
This aspect of the matter was examined in
Shankarlal‟s 1981 Cri LJ 325 (supra) where this Court
observed thus:
"Besides, falsity of defence cannot take the place
of proof of facts which the prosecution has to
establish in order to succeed. A false plea can at
best be considered as an additional
circumstance, if other circumstances point
unfailingly to the guilt of the accused."
184. Thus, the sole incriminating evidence against Romesh
Sharma of giving false answers to some of the questions being
the only incriminating evidence is incomplete to form a
complete chain wherefrom his guilt can be inferred.
185. To conclude qua Romesh Sharma we hold that there is no
evidence to establish that he conspired through jail during his
meetings with Surinder Mishra, Tejinder Virdi and Jaspreet Virdi
to murder Kunjum. There is no evidence that Romesh Sharma
was fed up with Kunjum. There is no evidence that Kunjum
was becoming over bearing. Thus, Romesh Sharma is entitled
to be acquitted.
186. Proceeding with the evidence against Tejinder Virdi,
holding that she is entitled to the same benefit i.e. of no
conspiracy being hatched between Romesh Sharma, Tejinder
Virdi, Jaspreet Virdi and Surinder Mishra we consider the other
evidence held to be incriminating against her. We
reemphasize that evidence suggests that till late evening of
19.3.1999 there was resistance by Surinder Mishra in Kunjum
visiting the farmhouse. It was only the next day morning i.e.
on 20.3.1999 that the key to the farmhouse was given to
Kunjum by Surinder Mishra. There is no evidence that in the
morning of 20.3.1999, before Kunjum visited the farmhouse,
Tejinder Virdi and Surinder Mishra had met or spoken to each
other.
187. Her visit to the farmhouse in the morning as also that she
was in touch with the hired assassins and her conversation
with Surinder Mishra and Vikram have been used as
incriminating evidence against her, pertaining to her conduct.
188. Pertaining to Tejinder Virdi being in touch with the hired
killers as deposed to by Sunil Kumar PW-15 and Hari Chand
PW-17, we refer to the testimony of the said two witnesses as
noted by us in paragraphs 52 to 55 above and our discussion
to the testimony of the said two witnesses with reference to
the improvements made by them vis-à-vis their statements
recorded under Section 161 Cr.P.C., as discussed in paras 135
to 137 above. We remind the reader of this order that in para
137 above, we have noted that the effect thereof would be
discussed by us while discussing the evidence against Tejinder
Virdi.
189. For the facts noted in para 135 and 136 above, it is
apparent that Sunil Kumar and Hari Chand made material
improvements vis-à-vis their statements given to the police
and as deposed in Court when they, for the first time stated
that Jaspreet Virdi and Tejinder Virdi had been meeting the
hired killers in the farmhouse in the past. No such fact was
disclosed by them to the police when their statements were
recorded. We have held the said statements to be
improvements of a material kind for the reason if true, the said
statements would be highly inculpatory of the guilt of Tejinder
Virdi and her sister. Thus, the incriminating circumstance used
by the learned Trial Judge of Tejinder Virdi being in regular
touch with the hired assassin is held not established.
190. The testimony of Sunil Kumar and Hari Chand establishes
that Tejinder Virdi and her sister along with a pundit had come
to the farmhouse in the morning and left thereafter to
purchase samagri for the pooja and did not return. It is
apparent that Tejinder Virdi learnt about Kunjum‟s intending
visit to the farmhouse on 20.3.1999, but the said knowledge
has to be attributed to her as of the morning of 20.3.1999
since the key to the farmhouse was given to Kunjum in the
morning of 20.3.1999. But from said fact alone i.e. of Tejinder
Virdi having knowledge gained in the morning of 20.3.1999 it
would be difficult to infer that she conspired with Surinder
Mishra to kill Kunjum.
191. The testimony of Vikram PW-30 also establishes that
Vikram had a talk with Tejinder Virdi @Dolly. The contents of
the talk between Vikram and Tejinder has been noted by us in
para 62 above. The call record of mobile No.9811155439 of
Vikram and mobile No.9811024145 of Tejinder Virdi shows that
one call was made by Vikram to Tejinder Virdi and one call was
made by Tejinder Virdi to Vikram. That Vikram has deposed
correctly with reference to his conversation with Tejinder Virdi
is doubtful. In para 63 above we have noted the cross-
examination of Vikram with reference to his statement Ex.PW-
30/DA recorded by the investigation officer. The comparison
of the two brings out that Vikram told the police that the
security guard told him that the girl who was murdered was
Kunjum, which fact of knowledge gained by him was sought to
be attributed by him to Tejinder Virdi. It is apparent that as
narrated in Court, the conversation between Vikram and
Tejinder Virdi would be suggestive of Tejinder Virdi knowing
that the girl murdered was Kunjum where from an inference
would be required to be drawn that Tejinder Virdi was aware
that Kunjum had to be murdered. It is in this context that we
are compelled to hold that Vikram has so changed his version
that from an innocuous conversation which he had with
Tejinder Virdi, while deposing in Court he has given a
colouration of being incriminating to the conversation.
192. There is no evidence on record, except the confessional
statement of Surinder Mishra that mobile No.9810114857, was
his mobile number. If mobile No.9810114857 is held not to be
proved as that of Surinder Mishra, we would have no record of
any evidence of conduct of Tejinder contacting Surinder Mishra
after she had spoken with Vikram.
193. To overcome this hurdle, learned counsel for the State
submitted that when Surinder Mishra made the statement
Ex.PW-12/A to Inspector Tarun Kumar PW-12, Surinder Mishra
was not an accused in the present case and hence said
statement was admissible in evidence. Second contention
urged was that till then the prosecution had no knowledge that
mobile No.9811024145 was that of Tejinder Virdi @Dolly and
this fact was discovered pursuant to the disclosure statement
of Surinder Mishra which was subsequently proved as correct
when Tejinder Virdi was apprehended and from the mobile
phone recovered from the possession the SIM card pertaining
to the mobile No.9811024145 was recovered.
194. The plea that the statement Ex.PW-12/A is admissible in
evidence because when it was made to Inspector Tarun Kumar
PW-12, Surinder Mishra was not an accused in the offence, is
belied from the testimony of Inspector Tarun Kumar PW-12
who categorically deposed that on 22.3.1999 he got
information that Surinder Mishra who had committed the
murder of Kunjum was staying at Kapadia Guest House and
pursuant to said information he reached the guest house from
where he arrested Surinder Mishra who was evading arrest by
claiming to be Rajkumar Bhatia and only thereafter he
recorded the statement Ex.PW-12/A.
195. It is thus apparent that the statement Ex.PW-12/A would
be inadmissible in evidence made by an accused to the police
officer after he was arrested, save and except such part of the
statement as would be protected by Section 27 of the
Evidence Act.
196. The tussle, whether to be admissible under Section 27 of
the Evidence Act, a physical object has to be recovered and a
fact discovered for the first time or merely the discovery of a
mental fact is sufficient to remove the bar of inadmissibility to
anything said to a police officer by an accused was the subject
matter of an intense debate before a Division Bench of this
Court in the decision reported as 2003 VII AD (Delhi) 1 State
Vs. Mohd. Afzal & Ors.
197. The Division Bench of this Court discussed the case law
on the subject. Tracking the history of how Section 27 of the
Evidence Act was interpreted with reference to the decision of
a Seven Judge Bench of the Lahore High Court reported as AIR
1929 Lahore 344 Sukhan Vs. Emperor; the locus classicus on
the subject i.e. AIR 1947 PC 67 Pulukuri Kottaya & Ors. Vs.
Emperor, the application thereof in the decisions reported as
1969 (2) SCC 872 Jaffar Hussain Dastagir Vs. State of
Maharashtra, AIR 1972 SC 975 H.P. Administration Vs. Om
Prakash, AIR 1976 SC 483 Mohd. Inayatullah Vs. State of
Maharashtra and 2000 Cri LJ 2301 State of Maharashtra Vs.
Damu, concluded as under:-
"396. We, thereforee, hold, that in order that Section
27 may be brought in aid, the prosecution must
establish:-
1. That consequent to the information given by the
accused, it led to the discovery of some fact State d by
him.
2. The fact discovered must be one which was not
within the knowledge of the police and the knowledge
of the fact was for the first time derived from the
information given by the accused.
3. Information given by the accused must lead to the
discovery of a fact which is the direct outcome of such
information.
4. The discovery of the fact must be in relation to a
material object and of course would then embrace
within its fold the mental condition i.e. the knowledge
of the accused of the place from where the object was
produced and the knowledge that it was there.
5. Only such portion of the information as is distinctly
connected with the said discovery is admissible.
6. The discovery of the fact must relate to the
commission of some offence.
397. Fact discovered, therefore, has to be a
combination of both the elements i.e. a physical object
and the mental condition."
198. The matter was taken up to the Supreme Court in the
decision reported as 2005 (11) SCC 600 State (NCT of Delhi)
vs. Navjot Sandhu @ Afsan Guru. The Supreme Court gave its
seal of approval to the view taken by the Division Bench of this
Court and in para 137 of the Report, categorically held: we do
not think that in any of these decisions discovery of fact was
held to comprehend a pure and simple mental fact or state of
mind relating to a physical object dissociated from the
recovery of the physical object.
199. Assuming that it stands established that Tejinder Virdi
spoke to Surinder Mishra as claimed by the prosecution, in the
absence of what conversation took place between the two, it
would be difficult to arrive at the conclusion which has been
reached by the learned Trial Judge. The reason is that Tejinder
Virdi and Surinder Mishra were known to each other and both
of them were acting as the Parokars of Romesh Sharma. If a
friend gains knowledge or acquires information of an untoward
incident in the property of his friend and contacts another
common friend it would be a natural conduct to share the
information pertaining to the incident and such a contact, in
the absence of what was told, would not be incriminating
evidence.
200. It is true that there is evidence on record that Tejinder
Virdi was unhappy with the growing friendship between
Romesh Sharma and the deceased, but the fact that the
deceased could not get possession of the key of the farmhouse
till the morning of 20th March 1999 mitigates Tejinder Virdi
conspiring to murder Kunjum. At least it can safely be said
that said circumstance makes it highly improbable that she
was a conspirator, for if she was, she would have facilitated
the access to the farmhouse by Kunjum.
201. That Tejinder Virdi came to the farmhouse in the morning
and after telling Ram Achal Tiwari to clean the pooja room and
leaving to get samagri but not returning is at best suspicious
conduct and no more.
202. That Tejinder Virdi did not offer condolence to the family
members of the deceased is not incriminating evidence nor is
her conduct of not informing Romesh Sharma a piece of
incriminating evidence. There is evidence that Romesh
Sharma got news of Kunjum‟s death and immediately moved
the Court to be granted permission to attend the funeral of
Kunjum.
203. Thus, the only incriminating circumstances against
Tejinder Virdi is of her coming to the farmhouse in the morning
and leaving to purchase hawan samagri and not returning
back. Assuming that she did talk to Surinder Mishra after
Kunjum was murdered and the same is used as the second
piece of incriminating evidence and the third being she being
unhappy with the growing intimacy between Kunjum and
Romesh Sharma, i.e. had a motive, but noting that Kunjum not
being facilitated entry in the farmhouse to a large extent
removes the sting of the inference of guilt to be inferred from
motive, we hold that the said circumstances are insufficient
where from the guilt of Tejinder Virdi has to be drawn and her
innocence ruled out. The trinity of the three would at best
achieve the status of a suspicious conduct and no more.
204. We conclude by allowing Crl.A.No.237/2008 filed by
Tejinder Virdi @ Dolly as also Crl.A.No.415/2008 filed by
Romesh Sharma. We set aside their conviction vide impugned
judgment and order dated 15.2.2008 and set aside the
sentence imposed by them vide order dated 18.2.2008. We
acquit them of the charges framed against them. We dismiss
Crl.A.No.459/2008, Crl.A.No.536/2008, Crl.A.No.604/2008 and
Crl.A.No.639/2008 filed by Surinder Mishra, Hem Chand @
Nani, Sant Ram and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju
respectively.
205. Since all the appellants are in jail we direct that if not
required in any other case Tejinder Virdi and Romesh Sharma
be set free forthwith.
206. We direct the Registry to transmit 6 copies of the present
decision to the Superintendent Central Jail Tihar with a
direction to him to make available 1 copy each to the
appellants whose appeals have been dismissed and retained
the others for the record.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
December 16, 2009
mm
