Delhi High Court

Sapna Talwar & Anr. vs State on 12 October, 2011

Author: Manmohan Singh

*           THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on: 20.05.2011
                                Judgment delivered on: 12.10.2011

1.          CRL.A. 357/2009

SAPNA TALWAR & ANR.                                         ..... Appellants

                                        versus

STATE                                                       ..... Respondent
Advocates who appeared in this case:
For the Appellant       : Mr K.B. Andley, Sr. Adv. with Mr. M.L. Yadav, Adv.
For the Respondent      : Mr Sanjay Lao, Addl. Standing Counsel.

                                     AND

2.          CRL.A. 421/2009

YUNUS                                                          ..... Appellant

                                        versus

STATE                                                        ..... Respondent
Advocates who appeared in this case:
For the Appellant       : Mr Arun Sharma, Adv.
For the Respondent      : Mr Sanjay Lao, Addl. Standing Counsel.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

     1.   Whether Reporters of local papers may be allowed to
          see the judgment?                                                    Yes

     2.   To be referred to the Reporter or not?                               Yes

     3.   Whether the judgment should be reported in Digest?                   Yes


CRL. A. 357/2009 & 421/2009                                         Page 1 of 51
 MANMOHAN SINGH, J.

1. These two appeals are directed against impugned

judgment dated 08.04.2009 and subsequent order on sentence date

20.04.2009 delivered by Additional Sessions Judge, North East

District, Delhi in case No. 50/2006, FIR No. 191/2002, P.S. Vivek

Vihar, whereby the appellants Sapna Talwar and Satyajeet were

convicted under Section 302 IPC and were sentenced to rigorous

imprisonment for life, they were also convicted under Section 365

IPC and were sentenced to undergo simple imprisonment for five

years and pay a fine of Rs. 1000/- in default of which to undergo

simple imprisonment for three months. Further, appellants Sapna

Talwar and Satyajeet were also convicted under Section 201 IPC and

were to undergo simple imprisonment for two years and pay a fine of

Rs. 500/- in default of which to undergo simple imprisonment for one

and a half months. Appellant Yunus was only convicted for an

offence under Section 120 B IPC. In addition, Sapna Talwar and

Satyajeet have also been sentenced under Section 120 B IPC and all

three of them were to undergo rigorous imprisonment for life for

offence under the abovementioned provision.

2. All the aforesaid sentences were to run concurrently and

all the three were given benefit of Section 428.

3. The facts as per the prosecution‟s case are that on

13.07.2002 one Laxman Dass informed the police that his younger

brother Vijay Kumar (hereinafter referred to as the deceased) was

missing, he said that 12.07.2002 at about 1:00 pm, his brother was to

meet one person from Haridwar in the Meridian Hotel, Delhi but that

meeting was not held and since then his brother was missing. During

the investigation police interrogated Yunus the appellant herein, who

stated that appellants Sapna and Satya Jeet had departed to Lucknow.

The police contacted the Lucknow Railway police and both the

accused persons were arrested at the Lucknow Police Station by the

local Railway police at Lucknow.

4. Thereafter, on 22.07.2002, both the accused persons were

brought to Delhi by the Delhi Police officials. They made disclosure

statements. Thereafter, it was discovered that the appellant Sapna

was an employee of the deceased and had got the job on the

recommendation of Satyajeet. It is alleged that the deceased used to

sexually exploit appellant Sapna. Therefore, to take revenge, Sapna

married Satyajeet with an under taking that both of them would kill

the deceased Vijay kumar, therefore, both of appellants hatched a

conspiracy and were joined by their co-accused Yunus, a friend of

Satyajeet in their plan. It is alleged that appellant Yunus gave the

other appellants his mobile phone to be used with other SIM card and

also provided them with a country made pistol (katta) which was

used by them to kill the deceased.

5. As per the prosecution story, on 12.07.2002 accused

Sapna enticed the deceased to come to meet her near the C.B.S.E.

building at about 6:30 pm where they kept having fun for some time.

Thereafter, both the accused persons, Satyajeet and Sapna

accompanied the deceased in his car to Ghaziabad border where they

purchased liquor and all of them started having it. Then Sapna

administered sleeping pills in the liquor of the deceased and when he

became unconscious they went to Dadri through Bulandshahar

highway and on reaching a small canal, they tied him, then took him

out and repeatedly hit him on his head with their country made pistol

and then strangulated him to death with a string. They threw his body

in that same canal with the help of one unknown passerby and left for

Haridwar. For the next few days the accused persons kept fleeing

from one place to another and during this time they were duly

assisted and supported by the accused Yunus who at last after giving

a sum of Rs. 1000/- made them board the train to Lucknow.

6. On being arrested by the police, the accused Sapna and

Satyajeet made their disclosure statements, Ex.PW 20/A and Ex.Pw

20/B respectively, pursuant to that on 23.07.2002 the police took

them to the spot and they pointed out the place vide memo Ex. PW

4/B. A site plan Ex. PW 4/C was also prepared of the place where

they had thrown the body of the deceased. The said place was under

the jurisdiction of Jarchha Police, whose officials had already

recovered the dead body of the deceased on 16.07.2002, its

panchnama Ex. PW 26/A was prepared and the body was sent for

postmortem examination which was conducted on 17.07.2002.

7. As per the postmortem report of PW-1 Dr. P.C. Aggarwal,

death was due to coma as a result of ante mortem injuries 3-4 days

prior to the date of postmortem examination.

8. Thereafter, a chargesheet under sections 365/364/302/201/

120-B/34 IPC read with section 25 of the Arms Act against all the

three accused persons was filed.

9. The learned ASJ after examining the testimonies of 48

witnesses held the three accused, namely Sapna Talwar, Satyajeet @

Lovely and Yunus guilty of hatching a conspiracy to cause death of

the deceased, and has delivered the impugned judgment on

08.04.2009 and subsequent order on sentence dated 20.04.2009. The

details of the offences are mentioned in para No.1 of this judgment.

10. Being aggrieved by the said judgment of conviction and

order on sentence, the appellants filed the present appeal, inter-alia,

on the grounds which can be summarized as follows:

11. In Criminal Appeal No.357/2009 filed by the appellants,

namely, Sapna Talwar, Satyajeet @ Lovely, the following are the

main grounds for appeal which have been raised:-

(i) The case of the prosecution is based upon circumstantial

evidence, but the chain is not complete.

(ii) The trial Court has considered the alleged disclosure

statements of the appellants as their legal confessions,

which is against the basic concept of criminal

jurisprudence.

(iii) Admittedly, there was nothing to recover in pursuance of

the disclosure statements of the appellants, therefore, the

so-called disclosure statements of the appellants became

inadmissible in law.

(iv) Since the dead body of the deceased Vijay Kumar was not

seen by any of his relatives and was cremated in their

absence and the identity of the dead body was established

by clothes found on the dead body, therefore, the possibility

of Vijay Kumar‟s clothes being planted cannot be ruled out.

(v) The medical evidence like post-mortem etc. pertaining to

the deceased has not been fully proved.

(vi) There is no clear evidence on record to prove the motive on

the part of any of the appellants for committing the said

crime and there is also no evidence to show as to how the

appellant Yunus is connected with the other two appellants

and as to why he helped them in running away from justice.

12. In Criminal Appeal No.421 of 2009 filed by the appellant

Yunus, the following are the main grounds:-

(a) No public witness was joined at any point of time, like at

the time of recovery or at the time of the arrest of the

appellants or subsequent thereof, though the members of

the public were, admittedly, present at that time.

(b) The impugned order is totally based on inadmissible

evidence.

(c) There is no legal evidence on record to hold that the

appellant Yunus is responsible for the offence punishable

under Section 120B IPC.

(d) The appellant Yunus had denied the suggestion for

providing the country-made pistol to the other two accused,

as there was no reason to do so. Admittedly, as per the

report of the ballistics expert, the said pistol was not in a

working condition. Therefore, it makes no sense to hold

that the present appellant provided the weapon of offence.

(e) The disclosure statements of accused Sapna Talwar,

Satyajeet @ Lovely being inadmissible in law cannot be

considered, unless independent corroboration is provided

by the prosecution.

(f) The mobile phone alleged to have been provided by the

present appellant also has no concern with the crime, as the

same has not been proved to have been used by the co-

accused.

13. The statements of all the three accused persons were

recorded under Section 313 Cr.P.C. All of them stated that they were

innocent.

14. Two defence witnesses were examined, namely, DW-1

Mohd. Mehmood son of Salim Mohd., and DW-2 Rashid son of

Abdul Wahid, on behalf of the accused Yunus in support of his

defence.

15. The prosecution in order to prove the charges against the

appellant examined following 48 witnesses :

PW -1 Dr. P.C. Aggarwal : He conducted autopsy on the dead body of deceased Vijay Bajaj on 17.07.2002.

PW -2 Gurpreet (hostile): Mobile shop owner to whom the accused allegedly sold the mobile phone of the deceased.

PW -3 Laxman Dass Bajaj : He is the complainant, brother of the deceased.

PW -4 Vishal Rajpal : Deceased was his uncle.

PW -5 Momim : He is allegedly known to the accused Satyajeet and on 16.07.02 latter requests him that his family members had ousted him and his wife Sapna. He allowed both to stay on the night of 16.07.2002.

PW -6 Ashok Rana : He is the friend of Vijay Bajaj and on 12.07.02 in the afternoon he allegedly saw a girl (Sapna) who sat in the car of Vijay Bajaj at petrol pump, Dilshad Garden.

PW -7 Sushil Sharma : Deceased was his class fellow. He allegedly saw the girl with deceased at 1.00 to 1.30 pm on 12.07.2002.

PW -8 Ms. Vineeta Bajaj : She is the wife of deceased Vijay Bajaj.

PW -9 Shahid (hostile): Accused Yunus allegedly made request to him to make arrangement of a room for stay of Sapna and Satyajeet on 15.07.2002.

PW -10 Gyan Singh : On 17.07.02 accused Satyajeet and Sapna allegedly stayed in his lodge.

PW -11 Anil Kumar (Manager) : On 14.07.02 Accused Satyajeet and Sapna allegedly stayed in his hotel Pelican, D-1, Patel Nagar-II, Ghaziabad.

PW -12 Manoj Kumar : In his presence Vishal and Ramesh allegedly identified the clothes of the deceased in PS Jarcha.

        PW -13 Ramesh Chand : He is            a cousin of the
       deceased.

PW -14 Ramesh Kumar : He is an employee in the company of the deceased .

PW -15 Vikrant Arora : He is the friend of deceased Vijay Bajaj and allegedly received the telephone call from the deceased at about 7.00 p.m. on 12.07.2002.

PW -16 Sanjeev Kumar : Deceased was his maternal uncle.

PW -17 R.K. Singh, Nodal Officer, Bharti Airtel.

PW -18 Ct. Satpal Tyagi : He handed over zero FIR, statement of complainant and copy of DD No.29 A to the duty officer of PS Vivek Vihar.

PW-19 Shiv Ram Giri : He is the owner of Shiv Chhaya Guest House, Haridwar where accused Satyajeet and Sapna allegedly stayed in the name of Surender Singh and Paramjeet Kaur on 13.07.02 and left the same on 14.07.02 at 7.00 am.

PW-20 HC Yogender Singh : On 21.07.02 he alongwith IO SI Yasbeer Singh, SI Anand Swaroop, Lady HC Chammo Khan went to Lucknow Jail for investigatin of this case.

PW-21 Ct. Preetam Singh : On 21.07.02 he joined the investigation and went to Hindon Mortuary, Ghaziabad alongwith IO SI Yasbeer Tyagi.

PW -22 HC Satyaver Singh : In the intervening night of 13 and 14, July 2002 he was posted as duty officer in PS Vivek Vihar and received the copy of zero FIR registered in PS Mansarowar Park through SI Anwar.

PW -23 Ct. Pushpa Singh : On 19.07.02 She was posted in PS GRP Char Bagh, Lucknow where she along with SI R.B. Singh and Ct. Neeru Shukla searched the accused persons at Charbagh railway station.

PW -24 Ct. Neeru Shukla ...Do...

PW -25 Ct. Krishan Bihari Chaubey ...do...

PW -26 SI Ranjeet Prasad Diwakar ...do...

PW -27 SI Brijpal Singh PS Khanpur, District Bullandshahar, UP : On 16.07.02 he was posted in PS Jharcha and complainant Raj Kumar came to his PS and gave a written information about dead body of an unknown person lying near a drain at Veerpura. He prepared a panchnama Ex.PW-27/A and seized the shirt and shoes of the deceased and also seized the dead body in a cloth pullanda and got the dead body photographed.

PW -28 SI Yashbir Singh : On 14.07.02 he took up the investigation of this case and on 23.07.02 the investigation of this case was transferred from him.

PW -29 Kallu (hostile): He is the father of accused Yunus.

PW -30 Sri Bhagwan Singh : He is the owner of parking slot at Har ki Paudi, Haridwar where the accused allegedly parked their vehicle i.e. Maruti Zen against a slip.

PW -31 SI Mahesh Kumar : Draftsman

PW -32 Mohd Islam : He was the compounder in Haq Medical Centre from where accused Sapna Talwar allegedly got the tablets of Diazepam.

PW -33 Tara Singh (hostile): He is the owner of medical store situated at S-2, Anupam Apartment, Shop No.4, Vrindavan Garden, Sahibabad. On 25.07.02

accused Sapna allegedly purchased 10 tablets of Diazepam and one injection (calmpose) and one syringe.

PW -34 SI Dharampal Singh : On 19.07.02 he was posted in PS GRP, Charbagh, Lucknow and searched for the accused persons there.

PW -35 Raj Kumar : On 16.07.02 he intimated in PS Jharcha about the dead body lying in the drain near an exhaust water pipe.

PW -36 Ashok : On 16.07.02 on the direction of police he brought out the dead body from the drain and signed the panchnama Ex.PW26/A.

PW-37 HC Gurnam Singh : On 24.09.02 he deposited the six sealed pullandas to MHCm.

PW -38 Akhtar : On 16.07.02 he signed the panchnama of dead body Ex.PW-26/A.

PW -39 SI Rishi Ram : On 19.07.02 he was posted as Head Moharrir in PS Kotwali, Haridwar. On that day SI N.P. Singh deposited one Maruti Zen car with him. On 24.07.02 IO came to him with the accused persons and seized the said car vide seizure memo Ex.PW28/C.

PW-40 SI R.B. Singh : He was the (thana prabhari) PS GRP, Char Bagh, Lucknow. He arrested the accused Sapna and Satyajeet there and seized one wrist watch, one sim card and cash Rs.6200/-.

PW-41 Ct. Jai Prakash : On 16.07.02 he was posted in PS Jharcha and at about 1-1.30 pm one Raj Kumar came to him and informed about one dead body lying in a culvert near village Veerpura.

PW -42 HC Chammo Khan : On 21.07.02 he alongwith SI Yashbir Singh, HC Yogender, SI Anand Swaroop went to GRP railway station, Lucknow and arrested both accused persons who were already in the Lucknow Jail.

PW-43 HC Hira Lal MHC(M), who deposed that on 21.07.2002 he made several entries with regard to depositing of pullandahs and the Maruti Car in the Malkhana.

PW-44 SI Anwar Khan : In the intervening night of 12th and 13th July, 2002 one Mr. V.K. Bajaj gave information that his brother Vijay was missing. DD 29A was recorded in this regard and handed over to him for investigation.

PW -45 ACP Ram Niwas : On 23.07.2002 investigation of this case was handed over to him.

PW -46 Retired HC Chattar Singh : On 16.07.2002 he was posted in PS Jharcha and one Ram Kumar gave him information about a dead body lying in a drain near Village Veerpura. He was also witness to the identification of wearing clothes of the deceased by the relatives.

PW-47 SI Raja Ram Singh Yadav : He was the Moharrir in PS GRP, Charbagh, Lucknow.

PW-48 Ct. Om Pal Singh : On 16.07.02 he was posted in PS Jharcha and an information was received in said PS that one dead body was lying in a drain. Thereafter, he along with HC Brijpal, Ct. Jai Prakash went to that place. The dead body was taken out and got photographed.

16. Since there is no eye-witness to the murder, the case

revolves around the circumstantial evidence of last seen and the

recovery of the material as per the story of the prosecution.

17. The sequence of events date-wise as per the case of the

prosecution are as under:-

(a) PW-18 Const. Satpal Tyagi who was posted in Police Station MS Park, registered the Zero FIR and also recorded the statement of the complainant, i.e. PW-3 the elder brother of the deceased. DD No.29A was also registered.

(b) In his statement recorded before the Court, PW-3 deposed that on 12.07.2002 his younger brother Vijay Bajaj had gone to market for business. He was also supposed to accompany him, but he could not accompany him as he had to attend the Kirya of the mother of his friend. His brother had gone to collect money from 5-6 persons. The last person was Manoj Jain of Shivalik Pharmaceuticals, Haridwar who was to meet his brother at Hotel Maridian, Delhi. At about 5.15 p.m. his brother rang up and informed that Manoj had not come to the hotel. During the night, the other brothers came to know that the deceased Vijay Bajaj had not returned. He lodged the report Ex.PW3/A and his statement was recorded by the police during the evening time of 13.07.2002. His apprehension was that his brother had been kidnapped. PW-6Ashok Rana deposed that he is running the business under the name and style of Rana Tours and Travels at Balbir Nagar, Shahdara. He knew Sushil Sharma who is residing near to his house. He was on friendly terms with Vijay Bajaj. He knew Vijay Bajaj for the last about 7-8 years prior to his death. On 12.07.2002 in the afternoon, while he was going to UP Border and on the way at the petrol pump, Dilshad Garden, he saw Vijay Bajaj had made one girl to sit in his car and then he left. Sushil Sharma PW-7 made a statement that he knew Vijay Bajaj being his class-fellow. On 12.07.2002 at about 1.30/2.00 p.m. he and Ashok were on the motor-cycle and following the car of Vijay Bajaj who gave lift in his car to a girl at Dilshad Garden near Petrol Pump and then they left. PW-15 Vikrant Arora who is the friend of the deceased Vijay Bajaj since college days, deposed that on 12.07.2002 at about 7.00 p.m. he received a telephone call from the mobile phone of the deceased Vijay Bajaj who requested him for his car stating that his (Vijay Bajaj) car had broken up being heated up and he was present at Vivek Vihar itself. At this, he told Vijay Bajaj to go to his house and pick up his car. However, on his return, he found that the deceased did not come to his house to pick up his car. PW-14

Ramesh Kumar Sharma who is the last seen witness before the death of the deceased as per the case of the prosecution has deposed that he has been working as an Accountant for the last about 8-9 years with Sheetal Bottle Glass Company. On 12.07.2002 at about 8.00/8.15 p.m. when the bus by which he was travelling, was stopped at the red light of Surya Nagar, he was standing on the footrest of the bus, he noticed that vehicle of the deceased Vijay Bajaj was also standing on the red light of Surya Nagar. Vijay Bajaj was having his Zen Maruti Car bearing No.DL-3C-N-1042. In that car, Vijay was sitting on the driver seat and on the back seat, one lady was sitting and near the driver seat one boy was also sitting in that car. He asked from Vijay as to whether he was going to his house, then he replied that he was going to somewhere else.

(c) PW-30 Sri Bhagwan Singh who was managing Pantdeep Parking Slot situated at Har ki Paudi at Haridwar, has deposed that on 13.07.2002 at about 7.00 a.m., a Maruti Zen blue colour Car came to in that parking slot and it was parked there against a slip issued by him. However, nobody came there to claim the said vehicle back for 5-6 days. One man and a lady had parked the said car there. After about 15 days, the police came to him for investigation and both the above said persons who had parked that vehicle were also with the police. The police recorded his statement after interrogation. PW-19 Shivram Giri who is the owner of the Guest House at Haridwar deposed that on 13.07.2002 one Surender Singh son of Amarjeet Singh came to his Guest House along with his wife Paramjeet Kaur and stayed there upto 14.07.2002. They left at 7.00 a.m. on 14.07.2002. PW-11 Anil Kumar deposed that he was the Manager of Hotel Pelican. On 14.07.2002 one Rahul along with one lady had come to his hotel and stayed there. They disclosed their address as D-603, Ashok Nagar, Delhi. They were allotted room No.106. They left the hotel on 15.07.2002 at about 8.00 a.m. PW-5 Momim deposed that on 16.07.2002 at about 10 p.m. accused Satyajeet disclosed to me that his family members had ousted him and his wife after beating them and they be allowed to stay at his house. Although, initially he refused him, but, at their persistent request, both were

allowed by him to stay in the house on 16.07.2002. They left in the morning. PW.10 Gyan Singh who is running a lodge situated at Railway Road, Choti Bajaria, Ghaziabad, has deposed that on 17.07.2002 at about 11.00 p.m. one boy and one girl came to his lodge. The boy had disclosed his name as Surender Singh.

(d) PW-27 SI Brijpal Singh deposed that on 16.07.2002 he was posted at P.S. Jarchar, District Gautam Budh Nagar. The complainant Raj Kumar came to the police station and gave a written information about the dead body of an unknown person lying near a drain (nala) at Veerpura. He along with the other police officials reached the spot. He prepared a Panchnama Ex.PW27/A. He seized the shirt and shoes of the deceased vide seizure memo Ex.PW27/B signed by him at point „A‟. Photographs of the dead body were taken which are Ex.PW27/C and Ex.PW27/D. The dead body was sent to dead house for postmortem through Const. Jai Parkash.

(e) The postmortem was conducted on 17.07.2002 and the cremation of the deceased was done on 19.07.2002 by the police. The eye-witnesses of the dead body at the spot were examined as PW-35, PW-36 and PW-41.

(f) PW-28 SI Yashbir Singh deposed that after having received the details of mobile phones contacted through the mobile phone of the deceased, the details are Ex.PW17/A to Ex.PW17/D, he came to know about accused Yunus. The said accused Yunus was interrogated by him on 19.07.2002 at his house. Accused Satyajeet and Sapna were known to have left Delhi on that very night. He informed all these facts to DCP East Sh. Arvind Deep who contacted DCP GRP Railways. The latter gave information about arrest of both the accused, Sapna and Satyajeet.

(g) PW-23 Const. Pushpa Singh, PW-24 Const. Neeru Shukla, PW-25 Const. Krishan Bihari Chaubey, PW-26 SI Ranjeet Prasad Diwakar, PW-34 SI Dharampal Singh and PW-40 SI R.B.Singh deposed that both the accused Sapna Talwar and Satyajeet @ Lovely were lodged in the police lock-up after

apprehending them from the Chahar Bagh Railway Station, Lucknow.

(h) PW-31 SI Mahesh Kumar prepared a scaled site plan Ex.PW31/A. PW-39 SI Rishi Ram deposed that on 19.07.2002 the Car was deposited and entry in register No.19 at Serial No.88 was made being copy thereof as Ex.PW39/A.

(i) PW-44 HC Chhamo Khan posted at LG House, Delhi deposed that on 21.07.2002 he was posted in P.S. Vivek Vihar. On that day, he along with other police officials took the custody of the accused Sapna and Satyajeet from Lucknow jail after taking permission from the Court. The disclosure statement was made by the accused Satyajeet @ Lovely and Sapna before PW-20 HC Yogender Singh being Ex.PW20/A (of accused Satyajeet) and Ex.PW20/B (of accused Sapna). They were arrested through arrest memos prepared by the I.O. being Ex.PW20/C (of accused Satyajeet) and Ex.PW20/D (of accused Sapna). Both of them were brought in Delhi on 22.07.2002 and produced in the Court of ACMM, Karkardooma Courts and were remanded by the Court in eight days police custody.

(j) On 23.07.2002 investigation of this case was taken by PW-

45 ACP Ram Niwas Vashisht and he interrogated both the accused, namely Sapna Talwar and Satyajeet @ Lovely. According to him, they led the police to a place near Dadri, UP and pointing out memo in this regard is Ex.PW4/A signed by him at point „C‟. He prepared the site plan Ex.PW4/C.

(k) The accused again took the investigator and his team to another place near a canal which was at a distance of about 2-2½ km from that place. Pointing out memo in this respect is Ex.PW4/B. He prepared the site plan of that spot which is Ex.PW4/D. Thereafter, they went to police station Jharcha. He inspected the record of the Malkhana Moharrar. One Vishal and another Kishan met them there in the police station. They identified the deceased from his photo, shoes and wearing clothes. The clothes of the deceased were sealed and were opened before them for the

purpose of identification and later on those were sealed again.

(l) On 24.07.2002, both the accused Sapna Talwar and Satyajeet @ Lovely led them to Haridwar at Har Ki Paudi. PW-45 received the Car Maruri Zen on superdari from the concerned SHO and thereafter, accused took them to a parking lot near Har Ki Paudi and pointed out a place. Pointing out memo Ex.PW28/B was prepared. The said accused then led them to a hotel Shivchhaya at Haridwar and pointed out the same. The Owner/Manager of the said hotel identified both the accused and handed over the photocopy of relevant entry in his guest register which is Ex.PW19/A. PW-45 prepared memo about seizing of the said Car which is Ex.PW28/C.

(m) On the way to Delhi, he received the information about co-

accused Yunus about his presence in his house in Delhi. The accused took the team to the house of Yunus who was interrogated by PW-45. He made the disclosure statement Ex.PW21/A and brought out one country-made pistol .315 Bore and five cartridges two of which were live, after bringing the same from an almirah in his house. He seized the same. Sketech of these weapons were prepared by him which are Ex.PW4/J (of the country-made pistol) and Ex.PW4/K (cartridges). He filled up the CFSL form and the case property was deposited in the Malkhana. All the three accused were lodged in lockup. On 25.07.2002 Yunus was produced in the Court from where he was remanded in judicial custody.

(n) Thereafter, the accused Sapna Talwar and Satyajeet @ Lovely took them to Anupam Apartment, Vranda Garden and point out a chemists shop.

(o) On 26.07.2002 both the accused were again interrogated by him. They led the police party to shop No.S4, BS Complex, GT Road, Ghaziabad. Accused Satyajeet pointed out that shop. One Gurpreet met there who had purchased the mobile phone of the deceased and he identified both the accused.

(p) On 27.07.2002 and 28.07.2002 after interrogation both the accused took the police to Hotel Pelican, Ghaziabad where the Manager Anil Kumar produced the photocopy of the guest register which is Ex.PW4/L and its seizure memo is Ex.PW4/M. His statement was also recorded in this regard.

(q) Thereafter, both the accused led the police party to shop No.1 in the name of R.K.Batteries where one Shahid met them. He identified both the accused and his statement was recorded.

(r) On 28.07.2002 accused Sapna had handed over her wearing top (shirt) which was seized vide seizure memo Ex.PW4/O signed by PW-45 at point „C‟.

(s) On the same day, he picked up blood from the back door of the car from its inside by scrapping the same with blade. The seizure memo in this regard is Ex.PW4/P. After completion of the investigation, he prepared the challan of this case. The result from the FSL was received which is Ex.PW45/B.

Medical Evidence

18. Let us now consider the medical evidence. The dead

body of the deceased, when sent for postmortem examination by the

Jarcha police was examined by PW-1 Dr. P.C. Aggarwal. During the

course of postmortem examination, this witness found:-

(i) A lacerated wound of 4 cm x 2 cm bone deep on the back

side of the head, 10 cm behind left ear.

(ii) Occipital bone was found fractured.

(iii) A defused tranatic swelling 10 cm x 6 cm in area on the

right side head just above ear was also found and the bone

was also fractured from this point.

On internal examination this doctor found:-

(iv) The brain was liquefied and a blood clot was present.

(v) Death was due to coma as a result of ante mortem injuries

3-4 days prior to the date of autopsy. And this autopsy was

conducted on 17.07.02.

19. So, as per medical evidence, the death of Vijay Bajaj was

due to coma as a result of antemortem injury.

FSL REPORT

20. The FSL report Ex.PW45/B dated 21.02.2003 on the

Parcel 5 and Parcel 6 reads as under:

"Parcel No.5: One country made pistol .315" bore marked exhibit „F1‟.

Parcel No.6: One 8 mm/.315" cartridge marked exhibit „A1‟ and four improvised cartridges marked exhibits „A2 to A5‟."

21. Similarly, another FSL report dated 29.01.2003 was

received. As far as exhibit „3‟ gauze cloth piece, the species of

original is „Human‟, but no reaction/remark is shown for ABO

Group. The description of the articles contained in the parcel is

given along with the result of analysis. The same reads as under:

DESCRIPTION OF ARTICLES CONTAINED IN PARCEL

Parcel „1‟ : One sealed cloth parcel sealed with the seal of "D.Singh U.P.P." containing exhibits „1a‟ and „1b‟.

Exhibit „1a‟ : One dirty shirt

Exhibit „1b‟ : One pair of shoes

Parcel „2‟ : One sealed cloth parcel sealed with the seal of "D.

Singh U.P.P. containing exhibits „2a‟ and „2b‟.

Exhibit „2a‟ : One dirty foul smelling pants with belt.

Exhibit „2b‟ : One dirty foul smelling underwear

Parcel „3‟ : One sealed cloth parcel sealed with the seal of "RNV" containing exhibit „3‟, kept in a plastic container.

Exhibit „3‟ : Gauze cloth piece having brown stains described as "blood lifted car"

Parcel „4‟ : One sealed cloth parcel sealed with the seal of "RNV" containing exhibit „4‟.

Exhibit „4‟     : One shirt described as "TOP"

Parcel „5‟      : One sealed cloth parcel sealed with the seal of

"RNV" said to contain „Desi Katta‟ sent in original to Ballistics Division

Parcel „6‟ : One sealed cloth parcel sealed with the seal of "RNV" containing exhibit „6‟

Exhibit „6‟ : Five bullets

RESULT OF ANALYSIS

1. Blood was detected on exhibit „3‟

2. Blood could not be detected on exhibits „1a‟, „1b‟, „2a‟, „2b‟, „4‟ and „6‟.

3. Report of serological analysis, in original, is attached herewith.

22. As per impugned judgment, the prosecution has proved

following circumstances against the accused persons :

(i) They were seen together with the deceased at the night of

12.07.2002. In the morning both the accused persons parked

the vehicle of the deceased with blood stains of the deceased

on it in a parking lot at Haridwar and stayed in a hotel under

fictitious identity.

(ii) Their disclosures led to the discovery of dead body of deceased

Vijay and it was found to have the same injuries as were

disclosed by the accused persons to have been inflicted on his

head.

(iii) The dead body was found at the same place where the accused

disclosed to have thrown it in the jurisdiction of PS Jarcha.

(iv) With the help of the wearing apparels and other articles the

dead body was a uniquely and unambiguously identified as that

of the deceased Vijay Bajaj, particularly consequent to the

identification by PW-4 Vishal Rajpal.

(v) In the ensuing morning the accused Sapna and Satyajeet were

found present in the town of Haridwar with the car of the

deceased Vijay Bajaj in which they were seen accompanying

the deceased just prior to the incident.

(vi) This car was found to be having blood on its rear right door.

The possession of the car of the deceased Vijay and that too

with the presence of blood stains, found from the constructive

possession of the accused Satyajeet and Sapna, transmit a

burden on the accused persons to show the circumstances in

which that car and those blood stains on the door of the car

appeared. But that burden was never discharged by the

accused persons.

(vii) Accused persons Sapna and Satyajeet have been shown by the

prosecution to be running from one place to the other after

causing death of the deceased Vijay Bajaj. And that too under

varying fictitious identities. U/s 10 Evidence Act this is a

relevant fact and the accused persons could never discharge

the burden so cast upon them to show the necessity of

assuming fictitious identifies and being in a state of restless

running from here to there after the death of accused Vijay

Bajaj was caused.

(viii) Prior to this, the prosecution was able to prove that Sapna was

making efforts of collecting Diazepam sleeping pills. It was

shown that such pills were procured also. Some of such pills

were found from the possession of Sapna and Satyajeet at

Lucknow which were seized by that police vide document

Ex.PW 23/A. Here the accused Sapna was found in possession

of „Calmpose‟ pills which are used to induce sleep.

„Calmpose‟ is the brand name of the same generic chemical

known as Diazepam. Prosecution had shown that they were

used to impair the deceased Vijay Bajaj.

(ix) Both the accused persons were duly sheltered and assisted by

the third accused Yunus during their hightailing from one point

to the other. It showed the extent of robust association

between all these three accused persons.

(x) Subsequently also the accused persons Sapna and Satyajeet

were arrested as per the information provided by the third

accused Yunus. Right from the time when Yunus provided

Katta to the accused Sapna and Satyajeet for causing death of

Vijay Bajaj, Yunus remained in their contact until they both

left for Lucknow. This proved the scope, extent and liability

of the complicity of accused Yunus in the commission of this

offence.

(xi) The accused persons took the phone of the deceased Vijay

Bajaj and sold it for Rs.3300/- at the shop of PW 2 Gurpreet

Singh.

(xii) The disclosure statements of the accused persons Satyajeet

and Sapna were recorded at two places. Initially at Lucknow

in a document Ex.PW-23/A on 19.07.02 and thereafter in Delhi

in documents Ex.PW-20/A & B on 21.07.02.

23. The case of the prosecution against the appellants was

based on circumstantial evidence. It is settled law that in the case of

circumstantial evidence, the inference of guilt can be justified only

when all the incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of any

other person.

24. It has been held in many decided cases that when a case of

the prosecution is based on circumstantial evidence, such evidence

must satisfy three tests. Firstly, the circumstances from which an

inference of guilt is to be drawn, are to be cogently and firmly

established. Secondly, those circumstances should be of a definite

tendency of unerringly pointing towards the guilt of the accused.

Thirdly, the circumstances, taken cumulatively, should form a chain

so complete that there is no escaping the conclusion that within all

human probability the crime was committed by the accused and none

else. In other words the circumstances should be incapable of

explanation on any reasonable hypothesis save that of the accused‟s

guilt. (See Hanumanth Govind Nargundkar & Anr. v. State of

M.P., AIR 1952 SC 343; Chandmal and Anr. v. State of Rajasthan,

AIR 1976 SC 917 and Sharad Birdi Chand Sarda v. State of

Maharashtra, (1984) 4 SCC 116).

25. It is a well established legal principle that in a case based

on circumstantial evidence where an accused offers a false

explanation in his statement under Section 313 Cr.P.C. in respect of

an established fact, the said false denial could supply a missing link

in the chain of circumstances appearing against him.

The well known rules governing circumstantial evidence

are that :- (a) the circumstances from which the inference of guilt of

the accused is drawn have to be proved beyond reasonable doubt and

have to be shown to be closely connected with the principal fact

sought to be inferred from those circumstances; (b) the circumstances

should be of a determinative tendency unerringly pointing towards

the guilt of the accused; and (c) the circumstances, taken collectively,

are incapable of leading to any conclusion, on a reasonable

hypothesis, other than that of the guilt of the accused.

26. No doubt, the courts have also added two riders to the

aforesaid principle namely, (i) there should be no missing links but it

is not that every one of the links must appear on the surface of the

evidence, since some of these links can only be inferred from the

proved facts and (ii) it cannot be said that the prosecution must meet

each and every hypothesis put forward by the accused however far-

fetched and fanciful it may be.

LAST SEEN EVIDENCE

27. As per the testimony of PW-14 Ramesh Kumar Sharma,

the "last seen" witness, on 12.07.2002 at about 8:00/8:15 p.m., his

bus, plying on route No.333, stopped at red light of Surya Nagar. At

that point of time Vijay Bajaj was in his Zen Maruti Car bearing

No.DL-3C-N-1042. He was sitting on the driver seat. One lady was

sitting near the driver seat. One boy was also sitting in that car. He

asked Vijay as to whether he was going to his house, and then he

replied that he was going somewhere else. Thereafter, he caught the

bus and left the place. He correctly identified the boy and girl, who

were seen by him in the car with Vijay, in Court as Sapna and

Satyajeet. His statement was also recorded by the police as PW-

14/DA on 14.07.2002.

28. Prior to this, PW-6 Ashok Rana had also seen deceased

Vijay with the accused Sapna on 12.07.2002 at the Petrol Pump,

Dilshad Garden as he was on his motorcycle. Another witness PW-7

Sushil Sharma, friend of deceased, in his testimony deposed that at

about 1:30/2:00 p.m. when he and one Ashok Rana were on the

motorcycle, they saw the deceased along with one girl at Dilshad

Garden near Petrol Pump. Similarly, PW-15 deposed that on

12.07.2002 at about 7:00 p.m., he received a telephone call from the

mobile phone of the deceased who asked him to give his car as his

car had broken.

29. PW-8 Vineeta Bajaj, the wife of the deceased, also

deposed that on 12.07.2002, she was in touch with her husband

whole day on his mobile phone and at about 8:30 p.m. she contacted

her husband on his mobile phone No. 9810015012 and he told her

that he is coming back in 15 minutes. PW-17 R.K. Singh, Nodal

Officer, Bharti Airtell, produced the prints out/call details of mobile

phone of the deceased and others. The said details show that the last

call received by the deceased was at 20:59:23 on 12.07.2002 and

there was no response on that number of the deceased on 13.07.2002

onward.

In view of above, it is clear that PW-14 Ramesh Kumar

Sharma had seen the deceased alive at about 8:15 p.m. and the

prosecution was able to prove the same in evidence.

30. PW-32 Mohd. Islam deposed in court that accused Sapna

took a delivery of five Diazepam tablets from his shop and the said

medicine was procured by her without a valid prescription of Doctor.

PW-34 SI Dharampal Singh, posted in Police Station GRP

Shajahanpur, U.P., deposed that Sapna and Satyajeet were taken into

custody on the basis of interrogation and on being searched one SIM

card was recovered.

31. PW-30 Sri Bhagwan Singh who was managing Pantdeep

Parking Slot situated at Har ki Paudi at Haridwar, has deposed that

on 13.07.2002 at about 7.00 a.m., a Maruti Zen blue colour Car came

into that parking slot and it was parked there against a slip issued by

him. However, nobody came there to claim the said vehicle for 5-6

days. One man and a lady had parked the said car there. After about

15 days, the police came to him for investigation and both the above

said persons who had parked that vehicle were also with the police.

The police recorded his statement after interrogation.

32. PW-19 Shivram Giri, PW-11 Anil Kumar, PW-9 Shahid,

PW-5 Momin and PW-10 Gyan Singh are the persons who provided

the accommodation to Sapna Talwar and Satyajeet @ Lovely during

13.07.2002 to 18.07.2002. Their testimonies and details are

mentioned as under:

13.07.2002 - PW-19 Shivram Giri

PW-19 Shivram Giri deposed that he along with his son

was running a guest house in the name of Shive Chhaya Guest House

situated at Upper Road, Haridwar, Uttranchal and on 13.07.2002 one

Surender Singh, s/o Amarjeet Singh, along with his wife Paramjeet

Kaur came to their guest house. An entry in this regard was made in

the register at serial No.4045 and they stayed in their guest house

upto 14.07.2002 and they left the same at 7:00 a.m. He also deposed

that some officials of U.P. police came to him on 24.07.2002 and he

identified and pointed out towards Sapna and Satyajeet, who were

present in court, as having accompanied the said police officials.

14.07.2002 - PW-11 Anil Kumar

PW-11 Anil Kumar deposed that on 14.07.2002 one Rahul

along with one lady came to their hotel and stayed there. During that

period, he was working as Manager in Hotel Pelican, D-1, Patel

Nagar-II, Ghaziabad. They made an entry in guest register at about

11:50 p.m. and room No.106 was allotted to them. They disclosed

their address as D-603, Ashok Nagar, Delhi, and left the hotel on

15.07.2002 at about 8:00 a.m. He further deposed that when the

police had brought boy and girl in the hotel on 28.07.2002, he came

to know about their names as Satyajeet and Sapna. In cross-

examination, he admitted that there was no initial/signatures on the

cutting/overwriting. He clarified that it happened due to change of

the room.

15.07.2002 - PW-9 Shahid

PW-9 Shahid was declared as hostile who gave the

testimony that he does not know anything about this case. He also

denied the suggestion of the prosecution and denied the fact that

before the police on 15.07.2002 he offered to keep Satyajeet and

Sapna in a room behind his shop. As per the prosecution case,

Yunus, who was running a shop near his shop, came to his shop with

one boy and lady and asked him to provide the accommodation. His

statement was also recorded by the police as Mark PW-9/A wherein

he confirmed that on 15.07.2002 at about 9:00 p.m. Yunus, who was

running a shop near his shop, brought one boy and girl with a request

to allow them to stay with him for night only. On their persistent

requests, he allowed them to stay for the night and they left on

16.07.2002 at 7:00 a.m.

16.07.2002 - PW-5 Momin

PW-5 Momin deposed that he has a shop of Raju

Electronics. He knew Satyajeet @ Lovely for the last 4-5 years. On

16.07.2002 at about 10:00 p.m., accused Satyajeet along with Sapna

came to his house at 387, Ashok Vatika, Loni Road Pasonda, U.P.

Satyajeet disclosed to him that his family members and ousted him

and they be allowed to stay in his house. At the first instance, he was

reluctant. However, on their persistent requests, he allowed them to

stay in the house of Iddu, his maternal uncle‟s son at Morta village.

They stayed there only for one night and left in the morning. He also

correctly identified Satyajeet and Sapna who were present in the

court. It is pertinent to mention here that despite opportunity being

being granted to the appellants, there was no cross-examination on

their behalf.

17.07.2002 - PW-10 Gyan Singh

PW-10 Gyan Singh deposed that he is running a lodge

situated at Railway Road, Choti Bajaria, Ghaziabad. On 17.07.2002

at about 11:00 p.m., one boy and one girl came to his lodge. The boy

had disclosed his name in the register as Surender Singh, resident of

B-44, Ajanta Apartment, Lucknow. He identified both of them in

court.

18.07.2002 - PW-9 Shahid

As per the case of the prosecution, till 14.07.2002 the

family members/relatives of the deceased had not expressed their

doubt upon anyone as culprit. As per the family members, there was

one telephone bearing No.9810695421 which was known to be

belonging to accused Sapna from which calls were made on that

phone of Airtel. On verification from Airtel about the ownership of

phone of Sapna, PW-28 came to know about the address of Sapna. It

was of Nand Nagri. The mother of the accused, namely, Geeta

Talwar, met PW-28 on that day. Sister of the accused, namely, Jyoti

and brother, namely, Ahsok @ Sonu, were also present in the house

at that time. He had visited the house on 14.07.2002 at about

5:00/5:30 p.m. He also made an entry about his departure in the

Police Station. Through these call details, he came to know about

accused Yunus. He was interrogated by him 19.07.2002 at his house.

On interrogation, he came to know that accused Satyajeet and Sapna

already left Delhi on that very night. He informed all these facts to

DCP East Sh. Arvind Deep who contacted DCP GRP Railways,

Lucknow and latter gave information about the arrest of the said

accused Sapna and Satyajeet.

33. PW-26 SI Ranjeet Prasad Diwakar deposed that on

19.07.2002, he was posted in GRP Charbagh. At about 8:00-8:30

a.m. SI R.B. Singh met him in the Police Station and told about an

information from Delhi about two accused, one boy and one girl, who

had absconded from Delhi. He had also disclosed their names as

Satyajeet @ Lovely and Sapna Talwar. He along with other team

members went to Railway Station Charbagh in search of said

accused. At Platform No.1 near parcel godown, they say one boy and

one girl sitting behind bags of parcels. When they inquired from

them about their whereabouts, accused Satyajeet told his name as

Vinod and Sapna told her name as Shalu. They asked them to show

their railway tickets. As the boy was bringing out his railway ticket

from his pocket, some documents fell down on the ground. One of

these was a driving licence in the name of Satyajeet. This raised

doubt about his identity. On further interrogation, both admitted

their names as Satyajeet and Sapna Talwar. On being searched,

accused Sapna was found having one grey coloured bag containing

Rs.6200/-, one SIM card Airtel, one wrist watch Titan, one vial of

some injection and one train ticket. The boy was found having one

wrist watch Titan and driving licence in the name of Satyajeet. All

these documents were seized vide document Ex.PW23/A. On the

vial a chit was affixed which bore the inscription "Calmpose" on it

and the train ticket was dated 18.07.2002 from Ghaziabad Junction to

Lucknow. The identity card contained photo of Satyajeet. Ex.PW-

23/A arrest memo-cum-disclosure statement was prepared at the time

of arrest. The police also recorded the statements of PW-23

Constable Pushpa Singh as Ex.PW23/DA, PW-24 Constable Neeru

Shukla as Ex.PW24/DA, PW-25 Constable Krishan Bihari Choubey

as Ex.PW25/DA and PW-26 Ranjeet Prasad Diwakar as Ex.PW-

26/DA.

34. After the arrest of Sapna and Satyajeet on 19.07.2002 at

lunch, they were lodged in jail. PW-28 SI Yashbir Singh applied for

permission in the court of MM, Karkardooma Court, Delhi, to bring

the said accused persons to Delhi. The copy of application is Ex.PW-

28/A. Both the accused were brought to Delhi by him and were

produced before the court in Delhi and both were remanded to police

custody for eight days.

In the disclosure statements recorded on 21.07.2002, they

informed that they could get the dead body of deceased Vijay

recovered from a small canal. On the basis of the disclosure

statements Ex.PW-20/A (Satyajeet) and Ex.PW-20/B (Sapna), they

were arrested on the same day. The arrest memos are Ex.PW-20/C

(Satyajeet) and Ex.PW-20/D (Sapna).

35. The prosecution proved that prior to their arrest on

16.07.2002, the dead body was recovered within the jurisdiction of

Police Station Jarcha. The clothes of the dead body were also

identified by the family members, particularly PW-4 Vishal Rajpal.

Before the arrival of Delhi Police at Police Station Jarcha, a dead

body had already been recovered by Jarcha police on the above

mentioned place and a Panchnama Ex.PW-26/A was prepared and the

dead body was sent for postmortem examination. PW-27 SI Brij Pal

Singh seized the shirt and shoes of the deceased vide Ex.PW-27/B,

photographs Ex.PW-27/C and Ex.PW-27/D were also taken.

Thereafter, the dead body was cremated by the Jarcha Police on

19.07.2002.

36. Mr Andley, the learned Senior Counsel appearing on

behalf of the appellants Sapna Talwar and Satyajeet, has argued that

the findings of the trial court are not sustainable, inter alia, on two

grounds, namely, that the learned trial judge who delivered the

judgment considered the alleged disclosure statements of the

appellants as their confessions which is against the law and secondly,

nothing was recovered in pursuance to the disclosure statements.

Thus, the disclosure statements are not admissible in law.

We must mention here that no doubt while delivering the

impugned judgment, the learned trial judge at various places has

referred to disclosure statements as confessional statements, which is

not permissible. And, it is settled law that only that part of a

disclosure statement made by an accused to a police officer is

admissible which leads to a discovery of a fact. In the present case,

although the dead body had already been found when the disclosure

statements were recorded, we must not lose sight of the fact that the

dead body was found by UP Police and that fact was not in the

knowledge of Delhi Police which came to know about the same

only when the disclosure statements of the accused were recorded.

We do not agree with the submissions of the learned Senior Counsel

for the appellants that there was no discovery of facts in this matter.

This will be apparent from what is mentioned below.

37. After disclosure statements made by the accused Sapna

Talwar and Satyajeet @ Lovely before Delhi Police on 21.07.2002,

the accused persons thereafter led PW-45 ACP Ramniwas Vashisht

and his team to a place near Dadri, U.P. on 23.07.2002 and pointed

out a place where site plan was prepared and also took them to

another place near a Canal which was at a distance of about 2-2½

kilometers from that place. Pointing out memo in this respect is

Ex.PW4/B and site plan was also prepared at the spot which is

Ex.PW-4/D.

38. Thereafter, they went to Police Station Jarcha and

inspected the record of Malkhana Moharrir. One Vishal and another

Kishan met them there in the Police Station and they identified the

deceased from his photo, shoes and wearing clothes. The clothes of

the deceased were sealed and were opened before them for the

purpose of identification and they were again sealed.

39. On 24.07.2002, both the accused led them to Haridwar at

Har Ki Podi and from local Police Station a car Maruti Zen was

received from the SHO and both pointed out the place of which

pointing out memo is Ex.PW-28/B was prepared. The accused

thereafter led the team to Hotel Shiv Chhaya and pointed out the

same. The hotel manager handed over photocopy of relevant entry in

the guest register which is Ex.PW-19/A. His statement was also

recorded. The seizure memo of the car Ex.PW-28/C was also

prepared and while returning to Delhi, both accused took them to the

house of Yunus at 1743, Gali No.1, Islam Nagar, Ghaziabad, who

was present in his house.

40. On the basis of the disclosure statement Ex.PW-21/A,

Yunus allegedly brought out a country-made pistol .315 bore and five

cartridges, two of which were live, from an almirah and the said

material was seized. The sketches of these weapons were prepared as

Ex.PW-4/J (country-made pistol) and Ex.PW-4/K (cartridges).

Seizure memo in this regard is Ex.PW-4/G. All these articles were

kept in pullandah and sealed by seal of RNV.

41. On 25.07.2002, both the accused then took the team to

Subzi Mandi, Chander Nagar. Accused Satyajeet pointed out one

shop of Chander Bhan. Thereafter, they led the team to Haq Clinic

number 7A, Dilshad Garden, Delhi, where the statement of Islam was

recorded.

42. On 26.07.2002, both the accused led the team to shop

No.S4, BS Complex, GT Road, Ghaziabad. Accused Satyajeet

pointed out that shop. One Gurpreet met them there who identified

both the accused and statement of Gurpreet was also recorded.

43. On 28.07.2002, they led the team to Hotel Pelican,

Ghaziabad and pointed out the same. The Manager-cum-

Receptionist Anil Kumar met them there. He identified both the

accused as the same who stayed there in the name of Rahul and his

wife. The photocopy of the guest register produced by the manager

is Ex.PW-4/L. The seizure memo in this regard is Ex.PW-4/M.

Thereafter, both the accused led the team to Krishna lodge, Railway

Road, Ghazibad, where Mr Gyan Prasad Yadav, Manager of the said

lodge, met them. He identified both the accused as the same persons

who stayed there in the name of Surender Singh and his wife.

44. During the course of investigation, when the vehicle

parked at Haridwar was examined, it was found to have blood stains

on the rear right door which was lifted vide seizure memo Ex.PW-4/P

and subsequently, this was confirmed to be human blood by the FSL

report.

45. It is pertinent to mention here that for the period from

13.07.2002 to 18.07.2002, there was no explanation on behalf of the

appellants Sapna Talwar and Satyajeet @ Lovely that why they were

moving from one place to another.

46. From the aforesaid incriminating material and

circumstances, it is clearly established by the prosecution that the

murder of Vijay Bajaj was committed by Sapna Talwar and Satyajeet

@ Lovely.

47. We concur with the view taken by the learned trial judge

that PW-14 is the „last seen‟ witness who had last seen Vijay Bajaj

alive in the company of the accused Sapna Talwar and Satyajeet @

Lovely.

48. The prosecution has also been able to establish that

accused Sapna Talwar and Satyajeet @ Lovely committed the

offence under Section 201 IPC because they had caused the death of

the deceased and after having the knowledge of the said fact, they

caused disappearance of evidence after offence of murder by

throwing the dead body in the water. The offence under Section 365

IPC is, however, not established.

49. In view of the testimonies of the witnesses, it is clear that

the prosecution has been able to establish on record beyond

reasonable doubt that both the accused Sapna Talwar and Satyajeet

@ Lovely have committed the offences under Section 302 r/w 120B

and 201 IPC.

CASE AGAINST YUNUS IN CRL. APPEAL NO.421/2009

50. The case of prosecution against Yunus was that in order to

kill the deceased Vijay Kumar, the accused Sapna and Satyajeet

hatched a conspiracy. They joined Satyajeet‟s friend Yunus in their

plan and received his mobile phone which could be used with other

SIM card of Sapna. They also received a country-made pistol/katta

and some cartridges also from Yunus. PW-18 SI Yashbir Singh

from the call details came to know about accused Yunus and he was

interrogated on 19.07.2002 at his house.

51. As per the case of prosecution, on 24.07.2002, both

accused Satyajeet and Sapna led the police to Haridwar for the

purpose of recovery of the articles. When PW-45 and his team along

with accused Satyajeet and Sapna were returning from Haridwar to

Delhi and they crossed Ghaziabad, PW-45 ACP Ramniwas Vashisht

received secret information about co-accused Yunus that he was

present in his house. Both accused Satyajeet and Sapna took the

team to the house of Yunus who was present in his house and after

interrogation, he made a disclosure statement Ex.PW-21/A.

52. The accused Yunus allegedly brought out one country-

made pistol .315 bore and five cartridges, two of which were live,

from an almirah in his house. Thereafter, he was arrested on

24.07.2002 and he was charged with Sections 25, 54 and 59 of Arms

Act and Section 120 B IPC.

53. The trial court, after discussing various provisions of the

Arms Act, came to the finding that the charges against the accused

persons stand not proved. However, Yunus was held guilty of

having conspired with Satyajeet and Sapna. The relevant details

given by the trial court are as under:

(i) A mobile phone was recovered from the possession of accused Yunus. Its IMEI number was 449652426331480 and it was seized vide Ex. No.PW-4/H. It was this mobile phone which Yunus provided to accused Satyajeet and Sapna and in which Sapna used her SIM card of number 9810695421. PW-17 R.K. Singh appeared in the court and produced documents Ex.PW- 17/A to Ex.PW-17/B. In these documents Ex.PW-17/A and Ex.PW-17B are the specific documents to this effect.

(ii) Accused Satyajeet and Sapna disclosed that Yunus was in contact with them. And that Yunus provided them money which was seized at Lucknow vide document Ex.PW23/A and he also provided them the railway ticket for Lucknow.

(iii) Yunus made a disclosure statement Ex.PW-21/A before the police that he had arranged a ticket for the accused Satyajeet and Sapna and had helped them in boarding a train to Lucknow. When the police worked upon this information, the accused Sapna and Styajeet were arrested by the railway police at Lucknow. According to the trial court this showed that the information furnished by the accused Yunus was correct.

These purported circumstances seen together, in the view

of the trial court, clearly established that the accused Yunus was in

contact with Sapna and Satyajeet and that he was assisting them; he

was providing all the material and instrumental help to them; he

provided a telephone and on its disruption a second one also. He also

provided them a Katta.

54. The case of Yunus before the trial court was that no public

witness was joined at the time of recovery or at the time of arrest of

Yunus. His case is that in fact, he was lifted from his house and he

was illegally confined in Police Station from 19.07.2002 till

24.07.2002 and on 19.07.2002, no public witness was allowed to

become witness at the time of recovery, if any, and no public witness

was there at the time of recovery.

55. The statement of PW-29, father of the Yunus, was also

recorded in the intervening night of 18.07.2002 and 19.07.2002 at

about 3.00 a.m. The father of the Yunus was examined as a

prosecution witness and was declared as a hostile. He deposed that

in the intervening night of 18.07.2002 and 19.07.2002, when he was

sleeping in his house, 12-13 persons entered his house from the side

of roof. All of them took away Yunus, his son, who was sleeping at

the roof of their house. He followed them. On his asking, they did

not disclose their identities but stated that they were taking away

Yunus to Delhi. He stated that the Police did not record his statement

in the case and on 20.07.2002, when he went to the Police Station

Vivek Vihar, the police took his signatures on six blank papers and

he identified his signatures on documents Ex.PW4/G and PW4/H at

point C. He was cross examined by the Special Public Prosecutor for

the State and he denied all the suggestions made by him before the

court.

56. The defence witnesses DW-1 Mohd. Mehmood and DW-2

Rashid were examined by the appellant Yunus. They deposed that

they are neighbours of the family of Mohd. Yunus and in the

intervening night of 18.07.2002 and 19.07.2002 at about 2:30-3:00

a.m., they saw police officials on the gate and they overpowered

Yunus and took him down to the street. The neighbours also

gathered there. The police officials informed that they were taking

Yunus to Delhi for some inquiry.

57. The learned trial judge in his impugned judgment

acquitted him of charges under the Arms Act against him as the same

stood not proved. However, he was held guilty of offence punishable

under Section 120 B read with Section 34 IPC and was awarded

imprisonment for life for the said offence.

58. In nutshell, the case of prosecution against the Yunus is

that he provided the katta and five cartridges to the main accused,

particularly, Satyajeet, who is his friend and also alleged to have

provided a mobile phone to Sapna. As per the story of prosecution,

Sapna used the said mobile after putting in her own SIM card and he

provided money to the accused as per Ex.PW-23/A.

59. After having gone through the testimonies of all the

witnesses and the documents on record, we do not agree with the

finding of the learned trial judge that any case against the Yunus

under Section 120 B IPC is made out as the prosecution has not

established its case under this provision against Yunus. Our findings

are as under:

a. Yunus denied the suggestion for providing country-

made pistol to the other two accused persons. As per the

FSL report, the said pistol was not in working condition.

Therefore, it creates doubt in our mind. It makes no

sense to hold that Yunus provided the weapon of

offence.

b. There is no clear evidence to prove the motive on the

part of the Yunus, how Yunus is connected with the

other two appellants, namely, Sapna and Satyajeet and

why he would help them.

c. In so far as evidence of PW-2 Gurpreet Singh, owner of

mobile shop, is concerned, he is a hostile witness and he

did not recognize him and has not supported the

prosecution case against Yunus.

d. PW-4 Vishal Rajpal, a relative of deceased, has not

deposed anything against Yunus.

e. PW-29, his father, who was produced as prosecution

witness, confirmed the case of Yunus that he was lifted

from the house on 19.07.2002. He was also declared

hostile witness.

f. PW-28 SI Yashbir Singh, who came to the house of

Yunus for interrogation on 19.07.2002, had not stated

anything against Yunus with regard to arrest, search,

seizure or recovery of any article in his chief. At the

time of interrogation on 19.07.2002, despite availability

of members of public, no public witness was involved.

g. As per call details between 03.07.2002 to 17.07.2002,

Ex.PW-17/A to Ex.PW-17/D, there is no evidence of

any call from alleged mobile phone of Yunus bearing

No. 9810810882 to the mobile phone No. 9810015012

of the deceased or the alleged mobile phone No.

9810695421 of Sapna Talwar.

h. Admittedly, PW-28 SI Yashbir Singh deposed to have

interrogated Yunus in the night of 19.07.2002 at his

house, but, there is nothing available on record in this

regard about the statement of Yunus or any other

witness. PW-28 SI Yashbir Singh deposed that he

interrogated Yunus on 19.07.2002 on the basis of the

call details from the office of Airtel on 14.07.2002.

PW-17 R.K. Singh of Airtel deposed that the police had

collected the call details Ex.PW-17/A to Ex.PW-17/D on

23.07.2002, then how on the basis of call details Yunus

was interrogated on 19.07.2002, i.e., prior to receipt of

call details on 23.07.2002.

i. PW-45 ACP Ramniwas Vashisht deposed in cross-

examination that he did not remember the date when SI

Yashbir collected call details. He did not remember the

number of telephone of which call details were taken.

j. PW-28 SI Yashbir Singh in his testimony stated that one

Mujib had given mobile phone to accused Yunus but

said Mujib was not produced as a witness nor his

statement was recorded.

k. No expert‟s opinion or doctor‟s opinion, who conducted

the postmortem, was obtained regarding the use of

alleged katta to commit the said offence.

l. PW-45 ACP Ramniwas Vashisht stated that they had

parked their vehicle at a distance of 100 yards before the

house of accused Yunus while PW-21 stated that they

had parked their vehicle at a distance of 500-600 yards

in north side from the house of the accused Yunus.

m. PW-4 Vishal Rajpal in his cross-examination deposed

that they reached there, the doors of the house of Yunus

were open while PW-45 ACP Ramniwas Vashisht stated

that the main gate was closed when they went there. The

doors were opened by Yunus from inside.

n. PW-45 ACP Ramniwas Vashisht stated that three or four

persons had entered inside the house and rest of them

remained outside. PW-21 Constable Pritam Singh stated

that they all entered into the house of the accused.

o. PW-21 Constable Pritam Singh deposed in his cross-

examination that there was one almirah of wood having

size 2`x5` in that room whereas PW-45 ACP Ramniwas

Vashisht stated in his cross-examination that the almirah

was affixed in the rear wall of the room which was made

of steel being of average size.

p. PW-21 Constable Pritam Singh stated in his cross-

examination that seizure memos were in the handwriting

of SI Yashbir Tyagi while PW-4 Vishal Rajpal stated

that seizure memo, sketch of country-made pistol and

cartridges, personal search memo of accused Yunus, site

plan and arrest memo were made by PW-45 ACP

Ramniwas Vashisht.

60. We find it difficult to believe that Yunus would have kept

the katta and cartridges with him if the same were returned by

Satyajeet and Sapna on their return to Delhi on 18.07.2002 after

committing the murder of deceased Vijay Bajaj, particularly, when he

was allegedly in close contact with the accused as per the case of the

prosecution and in all circumstances, was aware about the progress of

the investigation. Therefore, it would be highly unnatural on the part

of Yunus to have retained a weapon in his house after having

knowledge.

61. There is no direct or indirect evidence on record to

connect the accused Yunus with the alleged offence. The

prosecution version in this case is doubtful as the prosecution did not

join any independent witness as attesting witness to the alleged

disclosure statement as well as recovery. The disclosure statement

without any discovery of fact is also meaningless. Non-joining of

public witness as attesting witness smacks of malafide and makes

prosecution version more doubtful. The prosecution is not able to

establish chain of circumstances so complete to connect the accused

Yunus with the alleged offence.

62. For all these reasons, we are of the clear view that the

prosecution has not been able to bring home its case against Yunus as