Delhi High Court
Mohd. Shakil @ Bhola vs State on 14 September, 2012
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 04.05.2012
PRONOUNCED ON: 14.09.2012
+ CRL.A.98/2012 & CRL.M. (Bail) 160/2012
Mohd. Shakil @ Bhola ... Appellant
Through: Mr. Anurag Jain with
Mr. Parveen Malik, Advocates.
CRL.A.117/2012 & CRL.M. (Bail) 190/2012
DEVRAJ @ DEVOO ... Appellant
Through: Mr. Anurag Ahluwalia with
Mr. Rahul Dhankher, Advocates.
CRL.A.212/2012
KAMAL TYAGI @ TINU ... Appellant
Through: Mr. Sunil Upadhyay, Advocate.
CRL.A.264/2012 & CRL.M. (Bail) 459/2012
SUNIL ... Appellant
Through: Mr. Sunil Upadhyay, Advocate.
versus
STATE ..... Respondent
Through: Mr. Sanjay Lao, APP for the State.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P. GARG
MR. JUSTICE S.RAVINDRA BHAT
% 1. The appellants (hereafter referred to by their names, i.e.
Mohd. Shakeel, Kamal Tyagi, Sunil and Devraj) are aggrieved by the
Crl.A-98, 117, 212 & 264/12 Page 1
judgment dated 15-11-2011, of the learned Additional Sessions Judge,
in SC No. 106/2011 whereby they were found guilty of the murder of
Deepak Parashar ("the deceased") and convicted for the offences
punishable under Sections 302/201/120B, IPC. The deceased, a lawyer
was engaged by the appellants Mohd. Shakeel, Kamal Tyagi and
Devraj to defend them in several cases. The prosecution had alleged
that the deceased used to demand payment towards his fees from the
appellants, which was the motive for murder; further, they suspected
him of having divulged some information to one Kishan Solanki. The
appellants, except Sunil, were sentenced to undergo life imprisonment,
and pay fine; Sunil was sentenced to undergo RI for seven years and
pay fine.
2. The prosecution alleged that on 17.03.2005 the deceased called
Kamal Tyagi, demanding payment of fees. At that time, three accused
i.e., Kamal Tyagi, Devraj and Mohd. Shakil were in Kamal Tyagi's
car (DL7CD-1466). They asked the deceased to reach Main Road near
Mahavir Enclave where they picked him up. The car was driven by
Mohd. Shakeel. In the running car, Devraj shot the deceased on the
chest; Shakeel also shot and stabbed him and Kamal Tyagi
strangulated the deceased. In the process of strangulating him, Kamal
Tyagi himself sustained knife injuries on his hand. The deceased died
inside the vehicle. The three accused then threw his body near the
flyover near the railway line in Shahabad, Mohd. Pur. The
prosecution alleged that since there were blood stains in the car, it was
taken by the accused Sunil to Mahmudabad Village in Ghaziabad and
Crl.A-98, 117, 212 & 264/12 Page 2
burnt there to destroy evidence. It was alleged that while doing so, he
too suffered burn injuries.
3. Following the lodging of a missing person report and the
discovery of the body of the deceased, the accused were arrested.
Charges under Section 302/120 B, 201/120B IPC were framed against
them. They denied the charges and claimed trial.
4. During the course of the trial, 48 witnesses were examined,
medical and forensic evidence was brought on the record, and all of
this was put to the accused under Section 313, CrPC. They denied
their involvement in the crime. The accused led their own evidence
through deposition of two witnesses, DW-1 and DW-2. On the basis
of this evidence, the trial court found Mohd Shakil, Devraj and Kamal
Tyagi guilty of the offences under Section 302/120B IPC and 201
IPC. Sunil was convicted under Sections 201/120B IPC. It is against
this judgment and sentence that this appeal has been preferred.
5. The principal witnesses relied upon by the Trial Court in this
case were PW-1, who reported that the deceased was missing; PW-5,
the STD booth operator who deposed to witnessing the deceased
leaving with the accused in a Wagon-R car; PW-24, the representative
of the mobile service provider, in respect of the mobile phones of
Kamal Tyagi and the deceased; and the IO, PW-48. Depositions of
witnesses saying that a car was found in a burnt condition were also
relied on. The prosecution story about the deceased having been
whisked away in a Wagon-R car, by three accused, his being killed
Crl.A-98, 117, 212 & 264/12 Page 3
and the body thrown en route their escape to UP, and the discovery of
the car (used for abduction) after it was burnt, was held to have been
proved by the Trial Court.
Appellants' arguments
6. It was argued on behalf of Kamal Tyagi that the entire chain of
circumstances alleged against that accused was not proved beyond
reasonable doubt. It was submitted PW-1's deposition is doubtful as
there were many improvements in three statements given by the
witness, as between what he said on18.03.2005 and the statement
given on 19.03.2005. The missing person report DD No. 37B omitted
any suspect, as did this witness's first statement under Section 161. He
voiced his suspicion about the appellant and other two only in his third
statement. It was contended that the prosecution story was that on
18.03.2005, the name of the accused and other two accused were
within the knowledge of the police. They could have been arrested on
18.03.2005 itself. Why no efforts were made to arrest them on
18.03.2005 and why there was a need to get help of secret informer to
arrest them on 21.03.2005, remained unanswered. This showed that
the appellant has been booked in a false case and was named as an
afterthought.
7. Counsel for Kamal Tyagi submitted that PW-9, the last seen
witness, according to the prosecution version received information
regarding the deceased's death at about 12 noon on 18.03.2005. Yet,
PW-1 in his testimony deposed that he received message from P.S.
Crl.A-98, 117, 212 & 264/12 Page 4
Dabri at about 11.30-12 noon that the dead body of the description
given by him was lying at Safdarjung Hospital. PW-1 reached the
hospital at 12.30 PM. Therefore, the testimony of PW-9 was totally
unreliable as he could not get information regarding death of the
deceased from PW-1 at 12 noon as PW-1 got that information only
after 12.30 PM.
8. It was argued by counsel that PW-9 had criminal antecedents
and was produced from judicial custody as he was accused in a murder
trial. He did not inform anybody about the fact that he saw the
deceased in the company of accused persons on 17.03.2005. The
conduct of PW-9 is unnatural, suspicious and doubtful and he is not a
reliable witness. Counsel urged that the nephew of PW-9 namely
Bhupender s/o late Deewan Singh was also suspect in the present case
and he was handed over to PW-9 on 20.03.2005, apparent from DD
Entry No. 31 dated 20.03.2005 (Mark P.W.11/DX). Therefore, PW-9
deposed falsely to save his nephew. It was also urged that PW-9
deposed to having received a call from accused Mohd. Shakil on his
mobile at 6.00/6.30 PM on 17.03.2005 at which point of time he was
at Manglapuri. However, the call record details (Ex.PW-24/B) showed
that the call was made at 07.42 PM. If PW-9 was at Ram Sevak
Chowk, it was impossible for him to reach at Mahavir Enclave on foot
at 7.45 PM within three minutes. His statement that he was informed
by PW-1 (brother of the deceased) about the murder telephonically on
18.3.2005 at around 12 noon was not corroborated by that witness
(PW-1) any point of time; in fact PW-1 did not even mention PW-9's
Crl.A-98, 117, 212 & 264/12 Page 5
name in his entire Section 161 Cr.P.C. statement or examination in
court. Furthermore, PW-9 also admitted that he did not remember the
name of PW-1. PW-1 was not his friend or relative. In these
circumstances, there was no question of PW-1 calling PW-9. PW1
also never said that he informed PW-9 about the murder by making a
telephonic call to PW-9.
9. It was also argued that no prosecution witness deposed about
having met PW-9 on 18.3.2005 at any point of time, contrary to his
(PW-9) version. No prosecution witness ever deposed that PW-9
informed him about the last seen circumstance at any point of time. It
is not clear as to how police came to know that PW-9 is a last seen
witness. It was highlighted that PW-9's statement was not recorded on
18.3.2005. His testimony was without any corroboration and ran
contrary to that of other witnesses. Moreover, he did not join any
proceedings on 18.3.2005. Counsel urged that there was nothing on
record as to what PW-9 was doing at the place where he allegedly saw
the deceased in the company of accused persons on 17.3.2005 at 7.45-
8:00 PM. He did not meet anybody there; nor did he have any work
over there; he was on foot; no other person was with him and his
residence is more than 3 Kms from that place. His presence at the
spot where he allegedly saw the deceased with accused persons is
doubtful.
10. The appellants' counsel urged that PW-9 had not stated relevant
facts in examination-in-chief and he tried to improve his version only
in cross examination. Reliance was placed on State of U.P. v. Arun
Crl.A-98, 117, 212 & 264/12 Page 6
Kumar Gupta, (2003) 2 SCC 202 in this regard. It was also urged that
PW-9's mobile call details (Ex.DW1/B) do not suggest that he was
present at the STD booth where he allegedly saw the deceased in the
company of accused persons at 7.45-8:00 PM on 17.3.2005. His call
details suggest that his location was at Sadh Ram Sewak Chowk,
Palam Colony, Delhi at that time. The distance between these two
places is more than 2 KM and he was on foot. Lastly, submitted
counsel, the IO, PW48 admitted that he had not verified the presence
of PW9 at the spot where the deceased was lastly seen by him.
11. Counsel next urged that the deposition of PW-30, and the
alleged recovery of the key chain, attributed to Kamal Tyagi, was a
circumstance that could not have been taken into consideration. Kamal
Tyagi was arrested on 21.03.2005 and thereafter, he allegedly
disclosed about the key and the motor cycle key chain belonging to the
deceased. However, the motorcycle was never seized or part of case
property; the question of the key and key chain being proved against
him could, therefore, not have arisen. Further, Ex. PW-42/A, specified
that by letter No. 325/SHO/M.Pur dated 20.03.2005, 15 parcels were
forwarded to FSL Rohini and Parcel No. 11 contained a key and key
chain. Thus, when the key chain was already with the prosecution on
20.03.2005 the question of its recovery, alleged by it pursuant to the
disclosure statement of Kamal Tyagi, did not arise. These
demonstrated that the key and key chain are planted against the
appellant.
Crl.A-98, 117, 212 & 264/12 Page 7
12. Counsel for Kamal Tyagi urged that the call records pertaining
to that appellant for 17-03-2005 (PW-24/A) and those of the deceased
(Ex. PW-24/B) clearly revealed that the former (Kamal Tyagi) was at
different locations at material times. It was argued that this aspect was
completely overlooked by the Trial Court - which, in the impugned
judgment assumed that the said appellant was present at the places
where the deceased was, at all the material times, during the evening.
It was submitted that the call records (Ex. PW-24/B) of
deceased showed five telephone numbers, i.e. 01155733269,
9899522728, 9312052047, 9412627773 & 01125057051 with which
the deceased had spoken for a considerable time. Yet, the prosecution
did not make any effort to investigate about those five calls which
were crucial in the case of circumstantial evidence. The possibility of
someone else committing the crime could not have been ruled out.
13. Learned counsel argued further that the call records of PW-9
Rajesh Kumar (Mobile No. 9212041477 Ex.DW-1/A), show that he
received a call from Kamal Tyagi (Mobile No. 9871226307) on
18.03.2005 which was not reflected in Ex.PW-24/A (i.e. call records
of Kamal Tyagi produced by the prosecution). This, he contended,
clearly shows that Ex.PW-24/A is a manipulated record, and thus,
could not have been relied upon.
14. It was also submitted that the Wagon R car was not sent to
CFSL as admitted by PW-48 in his testimony. There were no traces of
oil as is clear from exhibit, PX-1. Further, the crime team report was
never placed on record. The recovery of the Wagon R car itself posed
Crl.A-98, 117, 212 & 264/12 Page 8
a question mark as the accused Sunil was arrested around 5-6 PM on
21.03.2005 (as per the testimony of PW-48 and PW-43A). However,
PW-15 testified to getting information regarding location of the
Wagon-R car at Mohamadabad, Muradnagar from Control Room at
3.30 PM on 21.03.2005 which clearly shows that there was prior
knowledge of the location of the car.
15. Counsel for Mohammed Shakil argued that recovery of the
purse cannot be relied since no public witness was associated with the
alleged recovery. Further, the purse was not subjected to identification
in the TIP proceedings. The alleged recovery was from an open place,
accessible to all and as such recovery had no value. It was highlighted
that in response to a court question, PW-30 stated that the purse was
of dull grey colour, but in fact, the purse was of dark brown colour.
16. It was argued that to use call details of mobile no.20049846
against Mohd. Shakil @ Bhola, the prosecution had to prove three
things, viz (i) that the call details of mobile no.20049846 are
admissible in evidence; (ii) that the mobile number 20049846
belonged to Mohd. Shakeel @ Bhola; and (iii) that mobile location
details of this mobile number matched with the locations of the
mobiles of other accused persons and the deceased at the relevant time
on 17.3.2005 and 18.3.2005.
17. It was argued that there was no certificate under section 65 (B)
of the Indian Evidence Act to prove the call details of Mohd. Shakeel
@ Bhola. Similarly, there was no evidence to show that the mobile no.
Crl.A-98, 117, 212 & 264/12 Page 9
20049846 belonged to Mohd. Shakeel @ Bhola. The alleged call
details of mobile no. 20049846 was not proved, verified or
authenticated by any prosecution witness in accordance with law. In
this context, it was submitted that PW-37 deposed in his examination
that call details record of mobile no. 20049846 were not available. The
certificate issued by MTNL in this regard was Ex.PW-37/A. It was
also submitted that the Trial Court did not put to Mohd. Shakeel @
Bhola, under Section 313, Cr.PC the circumstance that the mobile no.
20049846 belonged to him. Call details of mobile no. 20049846 were
also not put to the appellant. The prosecution failed to connect the
mobile no. 20049846 with the appellant Mohd. Shakeel @ Bhola.
Moreover, in any event, the mobile location of mobile no. 20049846
did not match with the mobile phones movement of other co-accused
persons and deceased also on 17.03.2005 during the relevant time of
07:45 PM onwards, and even on 18.03.2005.
18. Counsel highlighted that no motive was proved by the
prosecution; that in cases based on circumstantial evidence, motive is
of great importance. The motive alleged to have been in play by the
prosecution that the deceased was killed because he had been
demanding his professional fees from the accused, is a very weak
motive. In cases based on circumstantial evidence, strong motive is of
great importance to complete the chain of circumstances. Reliance was
placed on Niranjan Panja v. State of West Bengal, (2010) 6 SCC 525
and Sheo Shankar Singh v. State of Jharkhand & Ors., (2011) 3 SCC
654.
Crl.A-98, 117, 212 & 264/12 Page 10
19. Counsel for the appellant Sunil argued that there was absolutely
no evidence to connect him with the crime. No one saw him with the
accused; he was alleged to have assisted in the recovery of the burnt
vehicle. No public witness was involved, and there were discrepancies
between the evidence of PW-15, on one hand, and police witnesses, on
the other, about the time at which and the place from where the car
was actually recovered. It was submitted that even the village
Pradhan, whose testimony was sought to be relied on by the
prosecution, did not support its case. Consequently, this accused was
falsely implicated in the case, and deserved to be acquitted.
20. The learned Additional Public Prosecutor submitted that the
findings of the Trial Court did not call for any interference. All the
circumstances, as well as each link in the entire chain of
circumstances, had been conclusively proved. All the accused had or
were being represented by the deceased, in the cases they were
involved in. They had a common motive to do away with him, since
they felt that he was charging excessive fees. On the day of the
occurrence, PW-5, the STD booth operator had seen the deceased
keeping his motorcycle at around 7-45 PM; he vanished after that. His
brother came back for the bike two days later. It was submitted that
the first intimation about the deceased going missing was given by his
brother, PW-1. Though at that time, he did not voice any suspicion,
the fact remained that in his later statement, he did suspect the accused
to have played a role in his brother going missing. Merely because he
recorded it later, after it had been confirmed that his brother had died,
Crl.A-98, 117, 212 & 264/12 Page 11
did not mean that it was unbelievable. The APP argued that there was
no reason for PW-1 to falsely implicate any of the accused; the latter
did not concededly suggest that he had any enmity, or bore any ill will
against them.
21. It was submitted that PW-9's testimony cannot be discarded
merely because he was brought to depose in the court, from custody.
He was accused in some other case, and he knew the deceased, at the
time he went missing. He clearly deposed having seen the accused and
the deceased in the car, on the day the deceased went missing. The
mobile call records of Kamal Tyagi proved that both were in the
vicinity. The appellant's argument that the call details furnished by the
service provider did not pertain to Kamal Tyagi or his conversation
with the deceased, was not borne out by the record.
22. It was submitted that the failure to hold a TIP for the articles did
not mean that they were not recovered in the manner proved by the
prosecution in this case.
Material Evidence
23. PW-1, Rohit Sharma, the brother of the deceased, lodged a
missing person report when he did not return home the next morning.
It was lodged at P.S Dabri as Ex. PW-1/DA: Missing Person Report
DD No. 37B (dated 18.3.2005). In this report, he stated that his
brother had gone missing, but that he did not suspect anyone. Even in
his first statement to the police, post the discovery and the
Crl.A-98, 117, 212 & 264/12 Page 12
identification of his brother's body, he did not name any suspect (Ex.
PW- 1/DB). It was in his supplementary statement to the police that
this witness first indicated that he suspected Mohd Shakeel, Devraj
and Kamal Tyagi for the murder of his brother. He stated that the
deceased had told him that these three were bad characters and
therefore he had to take up their briefs. He even stated that a few days
before his death, his brother had told him that these three appellants
had threatened the deceased when he demanded his fees.
24. The witness deposed that his brother was a criminal lawyer
practicing at Tis Hazari Court. On 17.03.2005, while returning home
from Som Bazar Wali Gali on a motorcycle, he met his brother, the
deceased who was walking on the road. He (PW-1) gave the bike to
his brother who told him that he would be back soon. The Motor cycle
no. is DL 9S N 4663. Because his brother would regularly come home
late from work, he stated that his family was not concerned when he
had not returned that night. When even by the next morning his
brother had not returned, he tried calling his phone, but his phone
(Mobile No. 9818577457) was switched off. He then, on 18.3.2005,
went to P.S. Dabri and lodged a missing person complaint at 10.45
A.M. At 11:30-12 PM, he received a message from PS Dabri that a
dead body that matched the description given by him was found lying
at Safdarjung Hospital. He identified the body at 12.30 PM. Then he
went to P.S. Mahipalpur where the Police had asked him if he
suspected anyone, and he told them that he suspected Kamal Tyagi,
Mohd Shakeel and Devraj, who were clients of his brother. He then
Crl.A-98, 117, 212 & 264/12 Page 13
identified these three in Court. He told the police that his brother who
was a lawyer, used to wear a ring of Pukhraj, had a Nokia 6600 Cell
Phone, had a locket with thread on his neck, a Maxima wrist watch
and the keys of the motor cycle.
25. On 19.03.2005, the postmortem was conducted on his brother's
body. He received his brother's body. He then made an additional
statement to the police on 19.03.2005, wherein he stated his suspicion
about the above-mentioned three appellants. He suspected that they
had killed him. He stated that he had seen the three accused near his
house a week prior to his brother's death and he heard them abusing
his brother though he could not hear their exact conversation. When he
had asked his brother why they were threatening him, he was told by
his brother that it was because he (the deceased brother) had
demanded his professional fees from them. He stated that on
16.04.2005, in a TIP Proceeding, he identified his brother's
motorcycle keys, his black maxima wrist watch, and signed the TIP
Proceedings (Ex. PW-16/B). On 20.05.2005, he gave photocopies of
three files of the accused persons' cases that his brother had been
handling by Ex. PW-1/D. The witness identified the watch, keys, the
blood stained t-shirt, jeans and underwear that his brother had been
wearing on the day of his death.
26. In his cross-examination by the counsels for the defence, it was
brought out that he did not mention the fact of his brother having told
him that he would return soon, or of him subsequently trying to
contact his brother on his cell phone. This witness readily agreed that
Crl.A-98, 117, 212 & 264/12 Page 14
he had not mentioned these facts when he lodged the missing person's
report. He was confronted with the fact that he had told the police in
his statement on 18.03.2005 that he had seen the accused persons with
his brother a few days before the incident, and that before the Court,
during his examination-in-chief, he had stated that it had been a week
before the death of the deceased. He stated that he had indeed told the
police that he had seen the accused persons with his brother a few
days back and not a week back.
27. In his cross examination, he also revealed that he handed over
his brother's files later to the Inspector Ram Pal and two/ three other
police officials. He said that he had given them three files and that
they had not been sealed. He deposed that his statement on
19.05.2005 was recorded at his house, and that he did not go to the
Police Station that day or on 20.05.2005 when the Police took the
files. He revealed that his brother had got Md. Shakeel acquitted in a
case, but that there was still some enmity between them.
28. PW-5 Suresh Solanki was the owner of an STD Booth at D-3
Mahavir Enclave, Palam Dabri Road. He stated that on 17.03.2005,
the deceased Deepak Parashar came near his booth at 7.45 PM and
told him that he was parking his motorcycle near his booth and that he
should take care of it and that he would be back after some time. He
stated that he did not know where Deepak was going. When this
witness shut his shop and left for the day at 8.30 PM, Deepak's motor
cycle was there, and it was still there when he came back the next
morning. At around 11 A.M, the deceased's younger brother came
Crl.A-98, 117, 212 & 264/12 Page 15
inquiring about Deepak, but left to return again after sometime to take
back the motorcycle. At about 5-6 P.M. in the evening, when the
Police reached his booth, he (PW-5) found out that he (the deceased)
had been murdered.
29. In his cross examination by the counsel for the accused Kamal
Tyagi, he stated that he had told the police that the brother of the
deceased had come back with the keys of the motorcycle. Upon this,
he was shown by the counsel that that it had not been so recorded in
the statement. PW-5 further stated that his statement had been
recorded at about 6 P.M in the evening on 19.3.2005 by a person in
police uniform who had been accompanied by 2/3 other police
officials.
30. PW-6 Sunita was the Gram Pradhan of the village in which the
burnt car was found. As per her statement to the police, the witness
had been present during the recovery of the burnt car, the recovery
being at the instance of the accused Sunil. However, in her
examination-in-chief, she only stated that the police had come to her
house and asked her to arrange a vehicle to remove a burnt car. She
stated that she did not come out of her house to help but sent one
Tejvir to do the needful, and that the police obtained her signatures on
some papers. In her cross examination by the APP, when she was
confronted with her statement to the Police, she denied having seen
the accused Sunil with the police during the recovery of the car. She
also denied the fact that she had gone to the place where the burnt car
was found. PW-7 Tejvir was hired by the police, on being told by PW-
Crl.A-98, 117, 212 & 264/12 Page 16
6, the Gram Pradhan Sunita, to take the burnt car to Delhi using his
Tractor Trolley. He identified the burnt car in Court.
31. PW-9 Rajesh Kumar is crucial as he is the only "last seen"
witness who was consistent during the entire proceedings. In his
examination-in-chief, he stated that on 17.03.2005, at about 7.45/8
PM, he saw Md. Shakeel, Kamal Tyagi and Devraj, along with
Deepak Parashar in a Wagon R DL-7C-D-1466, and that Shakeel was
driving the car and that they were taking the deceased somewhere. He
stated that he knew the deceased and the accused persons.
32. In his cross examination by the counsel for the accused Devraj,
he revealed that he had been in judicial custody since December 2005,
facing trial in three criminal cases of PS Uttam Nagar, RK Puram and
Dwarka for charges under section 420, section 308/302/34 and section
307/387, IPC respectively. He stated that he was on talking terms with
the accused persons, particularly Shakeel, whose no. he stated was
200449846, as Shakeel used to hire his bus on a contract basis. He
stated that he had spoken to this accused at 6:30 P.M on the 17th itself
about a payment he had to make for the hire of this witness' bus. He
further stated that he had seen the accused persons with the deceased
for about a minute when he was standing in the market; the STD booth
was 15 feet away and he was not able to hear their conversation.
33. In his cross-examination by counsel for accused Shakeel, he
revealed that when he saw the accused with the deceased in the car,
the car had already been standing there and then they drove it away. In
Crl.A-98, 117, 212 & 264/12 Page 17
his cross examination by the counsel for the accused Kamal Tyagi and
Sunil, he revealed that he had known the father of the deceased for the
last fifteen years, and that the brother of the deceased, i.e. Rohit (PW-
1) had called him on 18.03.2005 and told him about the murder and
had also called him to the police station. He further stated that he did
not tell him (Rohit) on the telephone that he had seen the deceased
with the accused persons the previous day; but on going to the police
station, he told the Police, Rohit and others about having seen Deepak
in the company of the accused persons. He reached the police station
at about 12 noon. He also admitted that Kishan Solanki, Deepak and
Hari Kishan were co-accused with him in a murder case. He stated
that he was unaware that Kamal Tyagi had made any complaint
against these persons on 14.03.2005, and he also denied that for this
reason he falsely deposed against the accused.
34. PW-10 Dr. Samarjeet deposed that he had treated Kamal Tyagi
for a cut injury on his hand on 17/03/2005. He proved Ex. PW-10/A
which was the dispensary register on which a record of Kamal Tyagi's
treatment had been made (as the second last entry). In his cross
examination by the counsel for Kamal Tyagi, he stated that the
accused had told him that he received these injuries when he was
driving a vehicle at night. PW-12 Sita Ram, the Data Entry Operator at
the Transport Authority, testified that the car was registered in the
name of Kamal Tyagi. During his cross-examination by counsel for
Shakeel, he stated that as per their record, the first owner was a
Crl.A-98, 117, 212 & 264/12 Page 18
Mumtaz Ali and that they did not have the copy of the R/C in which
the registered owner was Kamal Tyagi.
35. PW-29 HC Baljeet Singh was posted in PS Mahipalpur. On
21.03.2005, he joined the investigation of the case with SI Rambir,
Inspector Ram Pal Singh, SI Satbir, SI Ranglal and HC Vinod. He
stated that they reached the house of the accused Sunil at Dukana
Mohalla, PS Sihani Gate, Ghaziabad U.P.; accused Sunil was found
there. Inspector Ram Pal made inquiries from the accused and then
arrested him. He made a disclosure statement in which he stated that
he had burnt the Wagon-R and that he could get it recovered. Then
Insp. Ram Pal, SI Rambir, this witness, the accused and a few others
went to Morad Nagar, Ghaziabad. This witness, the accused Sunil, and
SI Rambir reached the spot at Mehnoodabad, PS Morad Nagar, and
the accused showed then where the burnt, white Wagon-R, bearing the
number DL 7CD 1466 was. The accused apparently also revealed that
the car had been given to him by the accused Devraj to burn and that
he did so using petrol. This witness stated that the car was completely
burnt, that only the iron frame of the front seats was visible. The
chasis number (1919768X) was checked by SI Rambir. The Crime
Team was called. Since it was raining, the IO requested a tractor
trolley that was passing through to take the car. Photographs of the car
were taken. From the spot, burnt pieces of tyres, iron, broken pieces of
glass and one burnt blue coloured shirt, which the accused allegedly
claimed that he had been wearing at the time of the recovery, were
recovered from that spot. This witness claimed that the Pradhan of
Crl.A-98, 117, 212 & 264/12 Page 19
the village, PW-6 Sunita was also there, and all these articles were
seized in her presence. All these articles, as well as the car were seized
through Memo Ex. PW-6/A. He proved his signature on the memo,
and identified the Wagon R; broken pieces of iron, glasses and ash; a
piece of tyre and a burnt blue shirt.
36. In his cross examination, the witness said that they left the
station at about 2:00 AM in the morning, went to Sadh Nagar looking
for the accused persons and returned to the police station either at 3-4
PM or 5-6 PM. During such time, Kamal Tyagi, Shakeel and Devraj
had been arrested by the SHO. From there, they went to Ghaziabad,
reached the house of Sunil at about 6.30 PM, from there they went to
the spot where the burnt car was recovered at around 8:30-9:00 PM.
He again reiterated that Pradhan Sunita was also present at the spot,
and that the crime team arrived at the spot at about 10 PM. The
formalities were completed by around 10.30 PM, he returned to Delhi
at 11.30 P.M and the accused Sunil was admitted to Safdarjung
Hospital at around 12 midnight. He deposed that at the time of Sunil's
arrest, he (Sunil) had burn injuries on his chest, face and shoulder.
37. PW- 30 SI Ranglal Meena was a part of the team that arrested
Kamal Tyagi, Shakeel and Devraj. He stated that on 21.03.2005, when
he was posted in Mahipalpur, he joined the investigation of the case
with Inspector Rampal Singh, SI Satyavir (presumably Satvir) and SI
Rambir Singh. He stated that at about 5/6 PM, at the instance of a
secret informer, who met them in Sad Nagar, Mangla Puri, they
reached the bus stand at Mangla Puri from where the accused Kamal
Crl.A-98, 117, 212 & 264/12 Page 20
Tyagi was apprehended. He was searched and his mobile phone was
recovered and a seizure memo was prepared. He was arrested. His
disclosure statement (Ex. PW-30/A1) was recorded, which this
witness signed. In this disclosure, he revealed that Mohd Shakeel, and
Devraj were also involved in the murder. At his pointing out, Shakeel
and Devraj were arrested from Sad Nagar. They were also
interrogated. A mobile phone was seized from Shakeel. Both Shakeel
and Devraj made disclosure statements (Ex. PW-30/A2 and A3
respectively). Then, the three accused pointed out the bridge (pulia)
where they had thrown the body of Deepak Parashar. The witness said
that thereafter, Kamal Tyagi led them to the spot in Shahbad
Mohmadpur where he had thrown the motorcycle keys of the deceased
and it was accordingly recovered (Memo Ex. PW-30/D). This witness
could not recall how the key ring looked. Thereafter, accused Devraj
led them to some bushes in the same area, near the Indian Oil
Corporation Premises from where he got the wrist watch of the
deceased recovered (Ex. PW-30/E). This witness, however, wrongly
described the wrist watch as having a round dial, whereas it had a
square dial. Shakeel then led them to a Y-point in the same village
and got recovered a rexine purse which contained the deceased's Bar
Council ID Card, some visiting cards, a card on which some dates had
been written and some cash (Ex. PW-30/F). This accused then led the
police to Uttam Nagar from where he allegedly recovered a Nokia
Phone Model 6600 which belonged to the deceased (Ex. PW-30/G).
The Trial Court, however, pointed out at this instance that no such
seizure memo (of Nokia phone model 6600) was on record. He
Crl.A-98, 117, 212 & 264/12 Page 21
identified the key ring, wrist watch (though he had wrongly described
it previously in his statement as being round with a leather strap), a
brown and cherry coloured purse (though he had described it as being
a dark grey in colour) the ID card, visiting cards, a ` 100 note and a
telephone diary containing details of a case State v Gurmeet.
38. In his cross examination, he stated that no statement of any
public witness was recorded when Kamal Tyagi was arrested from the
bus stand, nor at the time of pointing out of the spot where the dead
body had been thrown and subsequently recovered from.
39. PW-23 HC Parvir Singh, the photographer in the Mobile Crime
Team proved the photographs taken of the body at the spot of its
recovery (Ex. PW-23/P-12 to 22). He stated that the body was lying at
the side of the pulia. He denied having taken a photo of any key ring.
He also denied having taken any photos of the key ring, watch and
other articles belonging to the deceased which, as per the prosecution
story, were lying next to the body. He lastly denied that he later
destroyed these photos on being asked to do so by the IO. PW-24
Rakesh Bakshi worked as a security officer in Bharti Airtel. He proved
the call records of Kamal Tyagi and the deceased Deepak (Nos,
9871226307 and 9818577457) (Ex. PW-24/A and Ex. PW-24/B). He
stated that the cell ID showed the location of the call user within a
range of 1-1.5 Kms.
40. PW-25 ASI Joginder Pal deposed that he was posted in the PCR
on 17/18-3-2005 from 8:00 PM to 8:00 AM, on the airport base. He
Crl.A-98, 117, 212 & 264/12 Page 22
stated that at about 7.30 AM, he received information from an
unknown person that a dead body had been found near the railway line
pulia at Shahabad, Mohammadpur. When he reached the spot he saw a
dead body of a person about 25-26 years old, and a crowd of 15-20
persons had gathered there. He informed the Control Room upon
which SI Satbir and other police persons reached the spot.
41. The last important witness, PW-48 Inspector Rampal Singh was
the IO of the case. He was posted as the SHO at PS Mahipalpur. He
stated that on the recording of the DD, Inspector Satyavir Janola and
HC Ramphal left for the spot at 8:10 A.M, and he left for the spot
where the body was found. He stated that once he reached there, he
prepared a Rukka, which he sent back with HC Ramphal, on the basis
of which the FIR was registered, and brought back to him. He
prepared the site plan Ex. PW-48/A. He corroborated the testimony of
PW-43A Satyavir Janola with respect to the recoveries from the spot:
blood stained earth and control, blood stained plaster, blood gauze,
golden Om pendant, golden ring, a light pink colored piece of cloth
that was blood stained and lying near the pulia, another completely
blood soaked piece of cloth, and other pieces of cloth which were
black and white in colour, all seized by Memo Ex. PW-33/A on which
he signed, and then sealed.
42. After the body was sent to Safdarjung Hospital he made
enquiries about any reported cases of missing persons in the PS Dabri.
On finding out that there was one such person, he informed the
informant in the missing person complaint i.e. Rohit Sharma. Rohit
Crl.A-98, 117, 212 & 264/12 Page 23
was called to the police station, and then sent to the mortuary of
Safdarjung Hospital where he identified the dead body as that of his
brother Deepak.
On 19.3.2005, the postmortem was conducted. This witness recorded
the statement of PW-1 Rohit Sharma and Ashwani Kumar. The body
was handed over to the relatives of the deceased. This witness also
recorded the statement of Rajesh Kumar who had last seen the accused
persons with the deceased. This witness corroborated the statement of
PW-43A Satayavir Janola with respect to the arrest of Kamal Tyagi,
Shakeel and Devraj and the recoveries at their instance, in all material
particulars.
43. The witness also stated that all the three accused revealed that
they had thrown the weapons used in the offence: one knife and two
country made pistols, and the blood stained clothes that they had been
wearing into the Hidon River in Ghaziabad. He stated that the three
accused then took them to the house of the accused Sunil who was
also arrested. His disclosure statement was recorded wherein he
disclosed that he had burnt the car used in the commission of the
offence, and that he could get the same recovered. This accused was
handed over to HC Baljeet and SI Rambir. They went with the
accused to the spot where the car had been burnt. Once this was done,
they all returned to Delhi and the accused Sunil was taken to
Safdarjung Hospital. Once they returned to the police station, PW-7
Tejveer, who had been hired to bring the burnt car to Delhi had
already reached the station, and his statement was recorded. All the
Crl.A-98, 117, 212 & 264/12 Page 24
case property collected was deposited in the Malkhana on 21.03.2005.
Since Kamal Tyagi had injuries on his right palm, on 22.03.2005, he
was taken to Safdarjung Hospital with SI Ranglal Meena to be
examined. This witness stated that the accused had revealed in his
disclosure that he had received these injuries during the commission of
the offence and had got treated at Shri Ram Hospital Dabri. This fact
was later verified from the hospital.
44. The witness also deposed about having collected the details of
the mobile phone of Devraj, from the shop from where it was bought,
the call details of the accused persons and the deceased, the details
relating to the ownership of the motorcycle. On 16.04.2005, the TIP of
the case property was conducted where the key of the motorcycle and
the wristwatch of the deceased were identified by the deceased's
brother (Ex.PW-16/B-C). On 20.05.2005, PW-1 Rohit gave him the
copies of documents relating to the cases FIR No. 342/02, 354/02 and
819/02 which were seized vide memo Ex. PW-1/D. In these cases, the
deceased had been the counsel for Shakeel and Devraj.
45. The ownership details of the car were also collected (Ex. PW-
48/H) and it was found to belonging to Kamal Tyagi. The complaint
made by Kamal Tyagi against Kishan Solanki was also seized (Ex.
PW-28/A). In his cross examination, the witness revealed that the
death report was half prepared at the spot, and the rest, prepared at the
mortuary after the post mortem was conducted.
Crl.A-98, 117, 212 & 264/12 Page 25
46. The Court now proposes to examine the material circumstances
held to be incriminating against the accused, which led to their
conviction.
Last seen circumstance
47. The last seen circumstance is sought to be proved through the
testimony of PW-9. He deposed to having seen the deceased in the
Wagon-R car with all the accused, at around 7-45 PM on the day of
the incident. He claimed to have known them, as they used to hire his
buses. According to the witness, two accused, Kamal Tyagi and
Shakeel had hired his buses, even on the day of the incident. His
Section 161 statement was recorded on 19.03.2005. He also deposed
to having been informed about Deepak's death, and having gone later
to his house, and to the police.
48. The appellants' objection to this witness' deposition stems from
the fact that he was produced from judicial custody as he was an
accused in some criminal case, at the time of the trial. It was also
suggested to him that his nephew was an initial suspect, and later
given up; that as some sort of bargain, he allegedly deposed against
the accused. The accused/appellants also rely on what they term as
inconsistencies and fatal discrepancies. They argue that the witness
could not have been at the place where he claims to have sighted the
deceased, allegedly with them, because at his own showing, it was
quite a distance away from his house. It was also argued that the
prosecution did not explain how this witness' presence was known to
Crl.A-98, 117, 212 & 264/12 Page 26
the police. Counsel also argued that the call details of the mobile
phone number of this witness did not establish that he was anywhere
near where he claimed, and that his whole deposition had to be
discarded because he made improvements in his deposition before
court.
49. This witness is important for the prosecution as he is the only
one who sought to prove the last seen circumstance. He deposed to
having seen, on 17.03.2005 at about 07.45-08.00 PM, the accused
along with the deceased, in the Wagon-R DL7C D 1466. He deposed
that Mohd. Shakil was driving the car and that he was taking the
deceased along with others somewhere else. He knew the deceased as
well as the accused. The witness admitted to having been in judicial
custody since December 2005 in criminal cases involving cheating,
attempt to commit culpable homicide and attempt to commit murder.
He stated that Mohd. Shakil and Kamal Tyagi were his acquaintances
and even mentioned Mohd. Shakil's mobile no. 20049846. He
deposed that Mohd. Shakil used to hire his buses and had spoken to
him at 06.30 PM on that day itself, i.e. 17.03.2005 itself. This witness
saw the three accused and deceased for about a minute when he was
standing in the market about 15 feet away from the STD booth. He
also said that he could not hear their conversation. In the cross-
examination on behalf of Kamal Tyagi and Sunil Tyagi, the witness
stated that he knew the deceased's father for 4-5 years and that the
deceased's brother, PW-1 called him up on 18.03.2005 regarding the
murder of Deepak Parashar. He said that he was called to the police
Crl.A-98, 117, 212 & 264/12 Page 27
station. Initially, he did not tell PW-1 that he had seen the deceased
with accused the previous day. However, he later told so after
reaching the police station the next day.
50. The testimony of a witness, such as PW-9 cannot, in the opinion
of the Court be blindly rejected on the ground that he was an accused
at the time he deposed in Court. During the cross-examination, on
behalf of the accused, the witness clearly mentioned the circumstances
under which he was acquainted with them. He knew them fairly well.
Equally well he knew the deceased and his family having been
familiar with the deceased's father for more than 15 years. The
witness was aware of Mohd. Shakil's telephone number. Even though
initially he had some doubt, during the course of his deposition, he
even stated the telephone number. No suggestion was put to him on
behalf of Mohd. Shakil that the said telephone number mentioned by
the witness did not belong to him. Furthermore, the accused did not
dispute their acquaintance with the witness.
51. It was also argued on behalf of the appellants that the last seen
circumstance cannot be said to have been proved by PW-9 since there
was some doubt about when he made the statement to the police. In
this connection, it may be noted that the witness was clear that on
18.03.2005, after having received news of Deepak's murder, he went
to visit the family, and was also asked to reach the police station. He
appears to have informed the police at that stage itself. However, his
statement was not recorded at that time, but was recorded later. Here
again, the appellants have not shown that the witness contradicted
Crl.A-98, 117, 212 & 264/12 Page 28
himself or made improvements on the statements made earlier under
Section 161. The suggestion that he was not telling the truth was
generally made and no attempt was made to describe his testimony
with regard to facts.
52. The question which, therefore, arises is whether the testimony
of PW-9 can be said to be decisive as regards the last seen
circumstance. The law, if one can recapitulate briefly is that "last seen
circumstance" is a sub-species of circumstantial evidence based
prosecutions. The obligation of the prosecution to prove every
circumstance and every link between the circumstances conclusively,
and the further duty to prove that all the circumstances add up to only
one conclusion, i.e. the accused's guilt ruling out every possibility of
his innocence, are constant factors. In a "last seen circumstance" based
case, that burden remains equally constant. What is added is the duty
of the prosecution to show that the circumstances which surrounded
the death were such that the only inference possible is that the
accused, and accused only and no one else, could have been the
perpetrator/perpetrators, as the case may be. If there is any possibility
of the crime being committed by someone else, the "last seen
circumstance" fails. The last seen doctrine essentially premises a
criminal charge on the assumption that having regard to all the other
circumstances, the victim's being last seen with the accused, if proved
through unimpeachable evidence, and if all the circumstances likewise
are proved, the court can conclude that it was only the accused, and no
one else who committed the crime. In State of U.P. v. Satish 2005
Crl.A-98, 117, 212 & 264/12 Page 29
CriLJ 1428, the Supreme Court clarified that the last seen theory can
be used only where the time-gap between the point of time when the
accused and the deceased were seen last alive and when the deceased
is found dead is so short that the possibility of anyone other than the
accused being the author of the crime becomes impossible. The same
reasoning has been echoed in Ramreddy Rajesh Khanna Reddy v.
State of A.P AIR 2006 SC 1656.
53. In the present case, PW-9 deposed to having seen the deceased
in the company of accused around 07.45/08.00 PM. In his
examination-in-chief, the witness did not precisely state the place
where he observed these facts; he clarified this later during his cross-
examination, and mentioned that he saw the accused sitting in the car
with the deceased near the Mahavir Nagar market. His statement was
recorded by the police during the investigation on 19.03.2005. His
intimation about Deepak's disappearance was around 10:40 AM on
18.03.2005 (Ex.PW-1/DA). The first intimation about the discovery of
the body took place almost simultaneously, i.e. in the morning of
18.03.2005 (Ex.PW-11/A). The Postmortem Report (Ex.PW-17/A)
reveals that the autopsy began at 10:10 AM on 19.03.2005. The report
reveals that the examining doctor found 15 injuries on the body. Two
of them, injury nos. 9 and 12 were by two separate fire-arm ones - one
on the head, and one on the chest. These, in the opinion of the doctor,
were the cause of death. Crucially the doctor's opinion mentioned the
time of death at about 1 ½ days prior to the examination. Thus, the
approximate time of Deepak's death was around 10 PM on
Crl.A-98, 117, 212 & 264/12 Page 30
17.03.2005. This would in turn mean that the time gap between the
"last seen" circumstance and the approximate time of death was just
about 2 hours, which can, under the circumstances, be considered
reasonable.
54. Having regard to the conspectus of circumstances, this Court is
of the opinion that the "last seen" circumstance in this case is said to
have been proved by the prosecution. There is no infirmity in the
findings of the Trial Court on this score.
55. The prosecution had also sought to place reliance upon the
testimony of PW-4, in support of the last seen circumstance. However,
the witness resiled from the previous statement made under Section
161 Cr.PC. His deposition is, therefore, of no use and significance.
Reporting of the crime
56. The first ground for attacking the impugned judgment by the
appellants was that at the time of reporting the crime, the deceased's
relatives had not voiced any suspicion and even in the first statement
of PW-1, recorded on 19.03.2005, none of them had been named.
These, coupled with the fact that the body was discovered within a
few minutes somewhere else after the Missing Person Report was
lodged on 18.03.2005, are highly suspicious. It was also emphasized
that the swiftness with which body was sent for Postmortem
examination and the equal speed with which PW-1 appears to have
reached there and identified the body, all revealed that the accused
Crl.A-98, 117, 212 & 264/12 Page 31
were framed for the crime. It was argued on behalf of the appellant
that the Trial Court ought to have taken into account all these
suspicious circumstances, which created grave doubts about their
involvement and consequently went a long way to discount the
prosecution case.
57. According to the prosecution, the deceased left his home on
17.03.2005 at 07.00 PM and thereafter went missing. PW-1 lodged
missing person report with PS Dabri as DD 33 B (Ex.1/DA). Its report
described the deceased and the clothes he was wearing. After the
discovery of the body, in the Safdarjung Hospital Mortuary, PW-1, in
his statement, Ex.PW-1/DB did not name any suspects nor name any
individuals whom he suspected for the crime. He stated to having
returned home on his motorcycle and that the deceased left home with
it on that motorcycle, stating that he would return soon. The
motorcycle - Hero Honda Ambition, DL 9S N 4633 and the
deceased's mobile number 9818577457 and a Maxima watch were
mentioned by the witness PW-1 in his first statement. He also
described the golden pendant which the deceased used to wear on his
neck and white-coloured jewel.
58. The suspicion voiced by PW-1 in respect of the three accused
was on 19.03.2005, when a supplementary statement was recorded for
this purpose. He revealed then that the deceased used to defend the
cases of the accused as their counsel. He also stated that the three
accused had gone to the deceased a few days before the incident.
According to PW-1, the deceased had confided in him about a demand
Crl.A-98, 117, 212 & 264/12 Page 32
in respect of fees from the accused; the latter are alleged to have
threatened that "they would see him". The Trial Court noticed that the
first statement dated 18.03.2005 was no doubt silent and did not
speculate on who could have been responsible for the crime. However,
equally it did not mention anything at all as to whether the witness had
any suspicion. The occasion to state his suspicion arose on
19.03.2005, after the impact of the crime had sunk in and the witness
could recall the events which had transpired. The Trial Court also
noticed that during the process of cross-examination, the witnesses
had not confronted PW-1 on his deposition about a quarrel between
them and the deceased a few days before the incident. Further, the
Trial Court noticed that the cross-examination of this witness also was
based upon the premise that the appellants used to engage the
deceased as their lawyer.
59. This Court does not find anything unnatural in the conduct or
the deposition of PW-1. He testified that his brother Deepak often
used to reach home late and as a result, his disappearance was not
reported late night on 17.03.2005. It was only when the family
noticed his absence in the morning that a missing persons' report was
lodged. The fact that the appellants used to engage the deceased is not
only spoken about by PW-1, but also by PW-9 who especially
mentioned this during the course of his deposition. For these reasons,
the submission that the police sought to frame the accused, and that
the entire story was an afterthought, is rejected.
Recoveries
Crl.A-98, 117, 212 & 264/12 Page 33
60. The prosecution relied on various recoveries attributable to the
disclosure statements of the three accused, i.e. Kamal Tyagi, Mohd.
Shakil and Dev Raj. The seized items were wrist watch, attributable to
the disclosure statement of Dev Raj (A-2). This was sought to be
proved through the depositions of two police witnesses, i.e. PWs-30
and 43. Key with key ring/key chain seized during investigation was
said to be recovered pursuant to the disclosure statement of Kamal
Tyagi (A-3). Here again, PWs-30 and 43 witnessed the recovery and
the seizure memo was prepared by the IO as in the case of wrist
watch. For the wallet, the prosecution relied on disclosure statement of
Mohd. Shakil to say that he led to recovery of those articles. Here
again, the maker of seizure memo was PW-48 and PW-30/F (PW-40
and the prosecution witnesses were 30 and 43).
61. From the testimonies of prosecution witnesses, a common
pattern emerges, i.e. that specific individual articles were attributed to
the disclosure statement of each one of the accused. This alone is
unnatural and suspicious circumstance. To compound it, what also
emerges from the record is that each of the three articles were
recovered from an open place accessible to all and not shown to be a
specific area or which were within the special knowledge of the
accused. Having regard to the settled position in law that recovery of
common objects and articles - a watch, key ring and wallet
undoubtedly falling within that description - unless shown to be
specifically connected with the deceased or the accused, cannot be
itself indicative of guilt. The description of the wallet given by PW-1
Crl.A-98, 117, 212 & 264/12 Page 34
was also different from what was actually recovered. Moreover, the
Court is conscious of the fact that none of the recoveries was
witnessed by independent witnesses. Having regard to these facts, it is
held that the recovery of such articles by themselves do not amount to
incriminating circumstances.
Recovery of burnt Wagon-R
62. The Wagon-R car (registration no. DL7CD 1466) was
according to PW-9, the car in which the deceased was seen last with
the accused. The testimony of PW-12, an employee of the transport
authority, Anand Vihar, reveals that the car was registered in the name
of Kamal Tyagi, Chassis No. HA 388D81500191768. A copy of the
RC of this car was produced and placed on record as PW-12/A. PW-9
had specifically mentioned the model and the registration number of
this car.
63. The disclosure statements of each of the accused Kamal Tyagi,
Mohd. Shakil and Dev Raj (Ex.PW-30/A-1, A-2 and A-3) are alleged
to have led to the disclosure of the fact that the Wagon-R car was
given over to the fourth accused Sunil, who was a relative of Kamal
Tyagi. Accused Sunil was arrested on 21.03.2005 (through memo
PW-39/D). His disclosure statement (Ex.PW-22/A) apparently led to
the recovery of car in a burnt condition. Now, the recovery of this car
stands on an entirely different footing. What is noteworthy here is that
the burnt car was in the vicinity of Ghaziabad. Sunil was arrested from
the house Sahni Gate, Dhokna Mohalla. PW-48 deposed that accused
Crl.A-98, 117, 212 & 264/12 Page 35
Sunil, when he was found at the house, was lying on a cot and his face
and front portion of the body had burn injuries. PW-29's deposition
reveals that Sunil led the police party to a place in the area of PS
Murad Nagar, a katcha raasta. The white-colored Wagon-R was in a
burnt condition. All its four tyres were burnt and so was its rear seat.
Only its structure and concerned seats were visible. The car was
loaded on to a tractor trolley which was passing by. PW-15, Crime
Team Photographer took pictures of the car, Ex.PW-15/A and PW-
15/A-15 to A-28, including the negatives. The car was taken into
possession through Seizure Memo Ex. PW-6/A.
64. PW-6 was cited in support of the prosecution. She was the
pradhan or village official. However, during the course of trial, she
did not support the prosecution and denied that Sunil was with the
police in her village or that the burnt car was recovered at his instance.
However, she significantly deposed that on 21.03.2005, in her
presence, Delhi Police reached there and asked for arranging vehicle
for removing the burnt car. She admitted to asking Tejvir to take-up
the burnt car. PW-7 Tejvir deposed that the police took the burnt car
on the trolley for that purpose on 21.03.2005. The burnt car was, in
fact, identified by him. He was not cross-examined. The Trial Court
discarded the testimony of PW-6 and stated that PW-7's deposition
about her presence and the further testimony with regard to seizure of
the car had proved the facts alleged by the prosecution.
65. Another corroborative and material fact was that Sunil, after his
arrest was medically examined by PW-40; he issued the MLC (Ex.
Crl.A-98, 117, 212 & 264/12 Page 36
PW-40/A). The report stated that Sunil had deep thermal burnt injuries
on the front of his face, neck, upper part of the chest, hand and fore-
arm. The Trial Court noticed that even though Sunil denied having
been handed-over the car by Kamal Tyagi, yet admitted that when
police went to his house, he was lying on a cot with burn injuries. The
Court also significantly noticed that Sunil did not explain the cause of
his injuries. On the other hand, Kamal Tyagi in his statement under
Section 313, Cr.PC mentioned that Sunil had received burn injuries on
account of fire in the court due to a short-circuit. These two statements
made by the co-accused are contradictory. In fact, if Sunil had
received injuries in the manner described by Kamal Tyagi, there was
no reason why he ought not to have disclosed it. The statement of
Kamal Tyagi, on the other hand, implies that he and Sunil were
together and that the latter was in possession of the car when the burn
injuries occurred.
66. Having regard to the entire evidence on the record on this
aspect, this Court is of the opinion that the finding with regard to the
recovery of the burnt car is an incriminating circumstance not only
vis-à-vis Sunil but also as regards other co-accused.
Miscellaneous
67. The mobile phone call details brought on record (Ex. PW-24/A,
EX. PW-27/A, Ex. PW-24/B) and testimonies of PW-24 as well as
PW-27 appear to have been valuable to aid the prosecution in nabbing
the accused. However, the argument of the appellants here is that the
Crl.A-98, 117, 212 & 264/12 Page 37
documents are inadmissible, and the findings of the Trial Court
unsupportable, because Section 65-B was not complied with. This
court finds force in the submission. Neither the deposition of PW-24,
the security officer of the telecom service provider, nor that of PW-27
who claims to have seized the call detail print outs in respect of
Shakeel's mobile number, are supported by Section 65-B certification,
or even deposition in conformity with its provisions. In the absence of
any such material, the Court cannot entertain and rely on such
documents. There is no declaration that the printouts are in conformity
with the records faithfully and accurately maintained in respect of the
call logs concerning the particular mobile phones. Therefore, these
call detail printouts cannot be considered evidence. At best they were
investigative tools which assisted the police during the course of
investigation.
68. The testimony of PW-46 Dharmendar, who during 2008 had
worked as Alhmad in the Court of a Metropolitan Magistrate, had the
effect of proving that the deceased Deepak had represented the
accused in their cases in Court. The documents and files produced
were discussed by the Trial Court, in the impugned judgment. The
accused notably did not cross examine the witness, nor sought to
distance themselves from the record. Thus, the testimony of PW-1 in
one sense about the deceased representing the accused, in their cases,
has been corroborated. This in turn, points to existence of some
motive, because the witness had stated during his testimony that the
Crl.A-98, 117, 212 & 264/12 Page 38
accused and deceased had a quarrel regarding the amount payable as
fees for representing them, and had left, threatening the deceased.
Conclusions
69. As a result of the above discussion, it is held that the
prosecution was able to successfully establish and prove vital
incriminating circumstances, such as the "last seen" evidence, through
the testimony of PW-9; it also proved that the car used to abduct the
deceased belonged to Kamal Tyagi, and that after committing the
crime, the accused quickly sought to dispose it off by handing it over
to accused Sunil. The testimony of PW-40 proved that Sunil had
suffered burn injuries; the Wagon-R was found in a burnt condition in
Ghaziabad, UP. The other three accused mentioned about it, and about
the role played by Sunil. That led the police to Sunil; his disclosure
statement led to recovery of the burnt chasis of the car. PW-7 proved
that the burnt car was seized and transported by the police. The
postmortem report established that the approximate time of death was
10 PM on 17-3-2005; the deceased was last seen together with the
three accused, in the Wagon-R car at around 8 PM that evening. The
court is, however, of the opinion that in the absence of any other
evidence linking the accused Sunil with the other accused, there could
not have, on the basis of assumption of conspiracy, been a finding that
he was guilty of the offence under Section 120-B of the Indian Penal
Code. Therefore, his conviction under that provision is set aside; his
conviction for the offence punishable under Section 201 IPC is
affirmed.
Crl.A-98, 117, 212 & 264/12 Page 39
70. In view of the above discussion, the conviction of Mohd.
Shakeel, Kamal Tyagi and Devraj under section 302/201/120B, IPC is
confirmed. We do not find any reason to interfere with the sentence
awarded to them. Their appeals (Crl. Appeal Nos. 98/2012, 212 /2012,
and 117/2012) are accordingly dismissed. The conviction of appellant
Sunil under section 120B, IPC is set aside; his conviction is, thereby,
modified to one under section 201, IPC. Consequently, sentence
awarded to him is modified to rigorous imprisonment for a period of
three years. His appeal (Crl. Appeal No. 264/2012) is allowed in the
above terms. All convicts shall be entitled to the benefit of set-off in
respect of the period already served by them.
S. RAVINDRA BHAT
(JUDGE)
S.P. GARG
(JUDGE)
SEPTEMBER 14, 2012
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