Delhi High Court
Mahesh Chaudhary vs State on 22 October, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 30.07.2018
% Judgment delivered on: 22.10.2018
+ CRL. A. 535/2015
1. MAHESH CHAUDHARY ....Appellant
Through: Mr. Rajesh Kumar, Ms. Santwana
Agarwal, Mr. Honey Khanna and Mr.
Ravi Rai, Advocates.
versus
STATE ....Respondent
Through: Ms.Kusum Dhalla, APP for State with
Ms.Priti, Advocate.
Mr. Siddharth Aggarwal, Mr. Faraz
Maqbool and Ms. Rupali Saumel,
Advocates for complainant.
+ CRL. A. 774/2015
2. RAJESH CHAUDHARY ....Appellant
Through: Ms. Rakhi Dubey, Advocate.
versus
STATE ....Respondent
Through: Ms.Kusum Dhalla, APP for State with
Ms.Priti, Advocate
Mr. Siddharth Aggarwal, Mr. Faraz
Maqbool and Ms. Rupali Saumel,
Advocates for complainant.
CRL.As. 535/15 & 774/15 Page 1 of 46
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGEMENT
22.10.2018
I.S.Mehta, J.
1. The Appellant Mahesh Chaudhary and Rajesh Chaudhary have
preferred two separate appeal i.e. (Crl. A. 535/2015 & Crl. A. 774/2015) under
Section 374 Read with Section 482 Cr.P.C., against a common judgment and
order on sentence dated 29.11.2014 and 02.12.2014 respectively by which both
the Appellants have been convicted under Section 120B IPC, 394/120B IPC
and 302/34 IPC. For the offence under Section 302/34 IPC, they have been
sentenced to undergo rigorous imprisonment for life and fine of Rs. 40,000/-
each and in default of payment of fine further undergo simple imprisonment for
six months; for the offence under Section 394 read with Section 120B IPC,
rigorous imprisonment of five years and fine of Rs. 10,000/- each and in default
of payment of fine to further undergo two months simple imprisonment; for the
offence under Section 120B IPC, rigorous imprisonment for five years and a
fine of Rs. 10, 000/- each and in default of payment of fine further undergo
simple imprisonment for two months. All substantive sentences were directed
to run concurrently.
2. Brief facts stated are that on 02.05.2011 on receiving a DD No. 56B
Ex.PW5/A S.I. Sombir alongwith Constable Kirori Mal reached the spot i.e.
11/14 Upper Ground Floor East Patel Nagar, Delhi - where, in one of the
rooms of aforesaid house, they found blood on the bed and lock of the almirah
were broken and door of the almirah were open. In the meanwhile S.I. Sombir
received another DD, DD No. 57B Ex.PW5/B wherein it was stated that the
injured Om Prakash Sharma has been admitted in Sir Ganga Ram Hospital. On
this, S.I. Sombir reached the hospital leaving behind Constable Kirori Mal to
guard the spot. On reaching at the Ganga Raam Hospital, SI Sombir found the
injured Om Prakash Sharma was declared brought dead vide MLC 1000/11 Ex.
PW13/A and he sent the dead body to DDU Hospital for post-mortem.
Thereafter, he came back at the spot where he met Inspector Rajesh Kumar
(who was instructed by Inspector Ravinder Singh). The crime team and FSL
team were called. Statement of Smt. Poonam Mehta W/o Sh. Sameer Mehta Ex.
PW 14/A was recorded by S.I. Sombir Singh.
Poonam Mehta (PW-14) stated that she resides alongwith her family members
at house No. 1-B/25 ground floor, Old Rajinder Nagar. She is a housewife; she
received a telephonic call at about 7:15 p.m. from her father Om Prakash
Sharma S/o Late Sh. Sukh Ram Das from his landline no. 25889704 and said
call got disconnected on "hello" response. The deceased father Om Prakash
Sharma again made a call and asked about her well being and during that call
the deceased asked her to remain on hold, as someone was at the door. While
she was holding the call, she heard noise from the side of her father. Thereafter,
suddenly the call got disconnected. She immediately thereafter made a
telephonic call on her father‟s mobile no. 9868357658 and said call went
unanswered despite ringing. She again made a call on the landline but no
response came, despite it ringing. She made a call to her brother Kamal Jaitly
on his mobile No. 9868257241 which did not connect. She made a call to her
niece Ambika on her mobile no. 9868141529, who informed that they have
come out of the tuition centre. When she enquired about the whereabouts of the
house servant, she replied that the house servant chotu (Lakhan) is with them.
Assuming that her father may have fallen and is alone at home, she rushed to
the home of her father in her car. On reaching the house, there was no light and
outer iron grill gate was open. The inner wooden door was locked. On
informing this to her brother Kamal Jaitley, he advised her to go to the
carpenter Anees who was working nearby and who would open the wooden
door. She brought the carpenter, who climbed the balcony, took out the iron
grill window, entered inside and opened the wooden door and told her that
something is wrong. As she entered into her father‟s room, she saw her father
was lying half on bed with his legs touching the floor and he was bleeding from
his neck and there was blood on his chest and mouth. Thereafter she, with the
help of Anees, picked him up from the bed, moved him to her car, and took him
to Sir Ganga Ram Hospital and got him admitted, where he was declared
brought dead by the doctor on duty vide Ex.PW-13/A. Thereafter she came
back to her father‟s house. On checking, from the almirah of her father- a sum
of Rs. 25,000 in Rs. 100 denomination notes; and from the almirah of her sister
in law- one ladies hand bag of black colour containing Rs. 2.50 lakhs to Rs.3
lakhs in denomination of Rs.1000 and Rs. 500 notes- were found missing.
Jewellery comprising of four gold chain, 2 gold rings with embedded diamonds
and 4 pairs of earring/tops with embedded diamonds - which were kept in
brown colour purse and two laptops of HP and Dell and a laser camera were
also found missing. Wooden almirah of her sister in law and father, which was
locked, were found broken. She suspected the hand of some known person in
the commission of murder and robbery.
3. During the investigation, at the spot I.O. Inspector Ravinder Singh
PW37 found blood stained bed sheets and one set of kurta pyjama which were
seized vide Ex.PW19/A and the blood lying on the floor was seized in a small
plastic container Ex.PW19/C. The broken locks in six parts was taken into
possession vide Ex.PW-19/B. The rough site plan of the spot Ex.PW37/B was
prepared at the instance of complainant Smt. Poonam Mehta.
4. Kamal Jaitley (PW19) came back to his residence and noticed that the
wooden almirah in the deceased‟s room was lying open with the lock broken,
and there was blood on floor and on bed. He also noticed that his wife's almirah
was also lying open in their bedroom. On instructions of PW19, PW23 made a
call to PCR from his mobile and PW19 sent the information that somebody has
done maar - peet with his father and stolen things from his house and that his
father has been taken to the hospital. The said information was recorded by
W/Ct. Promila PW1 (who proved PCR form Ex.PW1/A). Thereafter, PW19
along with his nephew Kunal (PW23) left for the hospital.
5. Sh. Kamal Jaitly, PW19 S/o the deceased Om Prakash Sharma stated
in his statement that one Rajesh Chaudhary was working with them as driver
for last ten years who was on leave due to burn injuries on his person. During
investigation it was revealed that Rajesh Chaudhary sold his jhuggi in Sri
Niwas Puri and had gone to some other place, and was constructing a new
house at Vasant Pur village, Faridabad and his wife Rinku was at her parental
house. Rajesh Chaudhary alongwith his brother in law Mahesh Chaudhary were
found missing from their respective houses.
6. SI. Sombir got post-mortem of the deceased conducted from Deen
Dayal Upadhyay hospital vide Ex.PW9/A and also took possession of blood
samples of the deceased Om Prakash Sharma and after the post mortem dead
body of the deceased was handed over to the family. Subsequently a scale site
plan Ex.PW15/A was prepared.
7. [email protected] (JCL) was the domestic servant in the house of the
deceased. When both the accused were not available at their respective houses,
their Mobile No. 9650668042, 9650668051 (Rajesh) and 9871590376
(Mahesh) were put on surveillance by Inspector Ravinder Singh. During
investigation it was revealed that Lakhan (JCL) was using No. 8860235416
which was provided by Accused Rajesh Chaudhary to him. By tracking their
phone numbers police came to know that Accused Rajesh and Mahesh were
travelling towards village District Madhubani. They were followed by Insp.
Rajesh Kumar who apprehended them at Leela Krishan Bhawan Hotel,
Darbhanga and arrested them at P.S. University vide Arrest Memo Ex.PW34/C
(Rajesh) and Ex.PW34/D (Mahesh) and aforesaid mobile numbers of Accused
Rajesh and Mahesh were recovered vide seizure memo Ex.PW38/C and
Ex.PW38/D respectively. Thereafter, they made their disclosure statement
Ex.PW38/A (Rajesh) and Ex.PW38/B (Mahesh). Transit remand of both
accused were taken from the court of CJM Darbhanga, Bihar and they were
brought to Delhi.
8. Both the accused persons on basis of their further disclosure statement
Ex.PW30/A (Mahesh) and Ex.PW30/B (Rajesh) lead the police party to the
house of accused Mahesh i.e., A-block, Roshan Nagar, Ganpati Colony,
Faridabad, Haryana and got recovered cash Rs. 2,80,300/- vide seizure Memo
Ex.PW19/C. Further Accused Rajesh got recovered 1 Gold Ginni from, in-
between the old bricks on the terrace at the house of his in laws vide seizure
memo Ex.PW19/D. Both the accused further got recovered blood stained shirts
which they were wearing at the time of committing the crime vide seizure
memo Ex.PW19/E. Accused Mahesh further got recovered two Laptops and
one Laser camera with black bag Vide Ex. PW- 19/F from (PW21) Satish S/o
Pal Singh R/o S-53/20, Private Colony, Sri Niwas Puri, New Delhi which was
given to him by accused Mahesh on 02.05.2011. Accused Mahesh Chaudhary
got recovered a broken knife Ex.PW19/G near Sri Niwas Puri bus stand, Delhi
and accused Rajesh Chaudhary got recovered one ladies bag containing blood
stained rope vide Ex.PW-19/J.
9. The accused Lakhan (JCL) too during the investigation made
disclosure statement and got recovered 2 gold chains, 3 gold and diamond rings
vide Ex.PW37/F and his mobile with no. 8860235416 was recovered vide
seizure memo Ex.PW37/G.
10. After completion of the investigation, Chargesheet under Section
302/394/397/411/34/120B IPC was filed and Lakhan (JCL) was sent to Juvenile
Justice Board, Kingsway Camp, Delhi with a separate Chargesheet.
11. Argument on charge was heard and charges under Section 120B IPC,
394/397/120B IPC, and 302/34 IPC were framed against both the
Appellant/accused on 25.04.2012.
12. The prosecution in order to prove its case has examined 39 witnesses;
WCt. Promila, (PW1), WCt. Ruchi (PW2), Sh. Pankaj Kumar, Clerk, SBI
(PW3), HC Randhir Singh, concerned Duty Officer (PW4), HC Anil Kumar
(PW5), HC Tara Chand (PW6), SI Dhan Singh (PW7), ASI M.S. Bhist (PW8),
Dr. B.N. Mishra, DDU Hospital (PW9), Sh. Israr Babu (PW10), Sh. Rakesh
Soni (PW11), Sh. Vishal Gaurav (PW12), Dr. Aathira Pankajakshan (PW13),
Ms. Poonam Mehta (PW14), SI Mahesh Kumar (PW15), Sh. Mohit Kumar
(PW16), HC Gyan Prakash, MHC (M) (PW17), Sh. J.K Mehta, Branch
Manager, State Bank of Patiala (PW18), Sh. Kamal Kishor Jaitely (PW19),
Smt. Savina Jaitley (PW20), Sh. Satish (PW21), Ms. Ambika Jaitley (PW22),
Sh. Kunal Jaitley (PW23), Sh. Mannan Ali Saha (PW24), Sh. Anees, Carpenter
(PW25), Ct. Ram Niwas (PW26), Rajesh Kumar Aggarwal (PW27), Ct. Kirori
Mal (PW28), Ct. Yogesh (PW29), HC Mahender Singh (PW30), SI Ashok
Kumar (PW31), SI Yaqub Khan (PW31), Ct. Kamla Parsad (PW32), Ct. Satya
Prakash (PW33), SI Vivek Singh (PW34), Inspector Guru Dev Singh (PW35),
SI Sombir (PW36), Inspector Ravinder Singh (PW37), Inspector Rajesh Kumar
(PW38). Thereafter, the statements of both Appellant/accused were recorded
under Section 313 Cr.P.C., on 20.11.2014 and 21.112014.
13. After conclusion of arguments, the Trial Court vide judgment dated
29.11.2014 and impugned order on sentence dated 02.12.2014 convicted both
the Appellant under Section 120B IPC, 394/120B IPC and 302/34 IPC.
14. The Learned counsel of the Appellant-1 has submitted that the present
case is based on circumstantial evidence, as there is no eye witness in the
present case. He further submitted that statement of Poonam Mehta (PW14)
requires corroboration, as it suffers from inconsistencies and unnatural
behaviour on her part. Smt. Poonam Mehta in her statement nowhere stated that
she had called the neighbours for help after the incident. There is no
corroboration of the presence of carpenter Anees (PW25) at the said house.
The recovery of the blood stained kurta and pyjama allegedly recovered from
the said room suffers from want of explanation, as it is not explained who
changed the blood stained kurta and pyjama before taking deceased to Sir
Ganga Ram Hospital.
15. Learned counsels for Mahesh Chaudhary has further pointed out that
finger prints were lifted by the crime team, the finger print report is not led in
evidence. Had the said report been produced, it would have pointed to the
innocence of the accused.
16. Learned counsel has further submitted that despite receiving CDR
(call detail record) from 01.05.2011 to 06.05.2011 only CDRs till 03.05.2011
have been led in the evidence. The non-filing of CDR from 04.05.2011 to
06.05.2011 creates serious doubts with regard to the involvement of the
appellants in the commission of the crime . Had the said CDR been produced in
its entirety, it would have pointed to the innocence of the accused.
17. Learned counsel has further submitted that the only evidence against
Mahesh is the recovery of stolen articles at his instance, and his being arrested
from Darbhanga. The seizure memo prepared at Darbhanga, Bihar raises
serious doubts, as a separate seizure memo of mobile belonging to Mahesh
Chaudhary (A-1) has been prepared, which is not even signed by SI Ashok
Kumar (PW31) who is the local police of that area, and he formed part of the
police party effecting the recovery.
18. Learned counsel has further submitted that discovery and recovery of
knife vide seizure memo Ex.PW-19/G cannot be relied upon, as knife is without
handle; the blood found on the knife did not match that of the victim; no site
plan was prepared showing the place of recovery, recovery was made without
any public witnesses, and; no information to the local police was given.
Learned counsel further submits that even in the impugned judgment, the
recovery of the knife has been doubted. So far as the recovery of two laptops
and one laser camera vide Ex.PW-19/F-at the instance of A-1 Mahesh
Chaudhary is concerned, same creates doubt as the bag in which the laptops and
laser camera were handed over has not been produced before the Court.
Learned counsel further submits that the recovery of a black bag and rope from
Awana Market has also not been believed by the Trial Court.
19. Learned counsel has further submitted that the prosecution failed to
bring on record evidence pertaining to the motive behind the commission of
crime. Learned counsel further submits that prosecution has failed to prove the
common intention of the accused under section 34 IPC. He submits that no
evidence has been led to establish the charge. Learned counsel has relied on the
following judgments:
i. State of U.P. v. Babu Ram [(2000) 4 SCC 515]
ii. Mahmood v. State of U.P. [(1976) 1 SCC 542]
iii. Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC
35]
iv. Tanviben Pankaj Kumar Divetia V. State of Gujrat [(1997) 7 SCC
156]
v. Sudama Pandey And Ors. V. State of Bihar [(2002) 1 SCC 679]
vi. Gagan Kanojia And Anr. V. State of Punjab [(2006) 13 SCC 516]
vii. Anjan Kumar Sarma And Ors. V. State of Assam [(2017) 14
SCC359]
viii. Deepak Chadha V. State [ 2012 (1) JCC 540]
ix. Lallan Rai and Others V. State of Bihar [(2003) 1 SCC 268]
x. Pandurang, Tukia And Bhillia V. State of Hyderabad [AIR 1955 SC
216]
xi. Nagraj V. State Rep. By Inspector of Police [2015 (4) SCC 739]
20. Learned counsel submits that the prosecution‟s case suffers from
inconsistencies and the statements of Poonam Mehta (PW14) and Kamal Jaitly
(PW19) are not trustworthy, as both of them are closely related to the victim.
There is insufficient evidence to establish that it is only the accused-and no one
else, who have committed the offence.
21. Learned counsel Rakhi Dubey appearing for the Appellant-2 has
submitted that the Court below failed to appreciate the principle that weakness
of defence cannot be a ground for conviction. The prosecution has to stand on
its own legs. Learned counsel has further submitted that the investigation
agency has not investigated the case properly. Rather, they have colluded with
Poonam Mehta (PW14) and Kamal Jaitly (PW19), and have given a different
colour to the case.
22. Learned counsel further submits that the alleged recoveries are on the
basis of joint disclosure statement and the recoveries as shown are no
recoveries in the eyes of law. She submits that the accused were apprehended in
Bihar. However PW-34 SI Vivek Singh, who was present there is silent on the
aspect of disclosure statement in his testimony. She further submits that PW-31,
SI Ashok Kumar too says that the statements of the accused were not recorded
in front of him. There is also inconsistency in the testimonies of the police
officials with respect to who made the disclosure statement first. As per PW-30,
it was accused Mahesh who disclosed first, but as per PW-37, it was accused
Rajesh who made the first disclosure.
23. Learned counsel has further submitted that Appellants had not
absconded and the Appellants have been falsely implicated in the present case.
She further submits that the accused Rajesh has given an explanation in his
statement under section 313 CrPC, wherein he has stated that PW-20, Smt.
Savina Jaitly called him on 02.05.2011 at 11:30 AM as he was to go out of
station in connection with her work.
24. Per contra, the learned APP has submitted that Lakahn (JCL) was a
servant with Kamal Jaitley (PW19) at House No. 11/14 UGF East Patel Nagar,
Delhi. Similarly, Rajesh Chaudhary (A-2) was also working there for about 10
years as driver. However, he was on leave on the pretext of burn injuries
received on his person. Factually, he was constructing his house in Faridabad
and was living with his brother in law Mahesh Chaudhary (A-1) at his house in
Sri Niwas Puri.
25. Learned APP has further pointed out that Lakhan (JCL) was having
the access to the knowledge where cash, jewellery and other valuables are kept.
26. It is argued that since A-2 was constructing his house, he was badly in
need of money and (JCL) Lakhan too was also in need of money. The said
problem, was discussed by both A-2 and Lakhan (JCL) who shared the
information regarding where cash, jewellery and other valuables are kept at the
house no. 11/14 UGF, East Patel Nagar, Delhi. A-2, A-1 and Lakhan (JCL)
hatched a conspiracy of committing robbery and murder of deceased Om
Prakash Sharma as he was a senior citizen of 86 Years. He usually remained
alone as Kamal Jaitly (PW19) and Savina Jaitly (PW20) were engaged in their
respective businesses, children too had their tuition after school. Accused
persons plotted the idea of committing the crime when the deceased is alone,
with the help of Lakhan (JCL). On 02.05.2011 i.e., the date of the incident,
Lakhan (JCL) requested Savina Jaitley that he want to accompany children to
their tuition classes on the pretext that Pranav is down with fever, and thus got
the permission to accompany the children. Lakhan (JCL) then gave this
information to A-2 that he is leaving with the children and the deceased Om
Prakash Sharma is alone at home so that their plan could be executed.
27. It is further submitted that A-2 and A-1 on receiving the information,
reached to the said house of Kamal Jaitley where deceased was alone. The
accused A-2 and A-1 tied the neck of deceased with rope Ex.P.10 which was
kept by Lakhan (JCL) in the said house as per the plan discussed with A-2, and
gave a cut with the knife Ex.P.11 on the neck of the deceased and took away
Rs. 3.25 lakh, several jewellery items, two Laptops and a Laser camera. After
commission of the crime, A-2 and A-1 kept the share of Lakhan (JCL) in his
almirah in the balcony of the same house and intimated the same to him over
phone call. Later A-1 called Satish (PW21) and handed over to him the laptops
and laser camera. A-2 and A-1 after keeping sufficient money at Delhi went to
Madhubani, Bihar (their native place) but they could not succeed to reach
Madhubani as they were tracked by the police and subsequently got arrested at
Darbhanga, Bihar on 05.05.2011 itself and were brought back to Delhi.
28. The Law relating to appreciation of circumstantial evidence is well
settled. The Supreme Court on various occasions has laid down the factors to be
taken into account in the cases involving circumstantial evidence. The Supreme
Court, in Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, entails :
"1) There must be a chain of evidence so far complete as not
to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to
show that within all human probability the act must have
been done by the accused.
2) Circumstantial evidence can be reasonably made the basis
of an accused person's conviction if it is of such character
that it is wholly inconsistent with the innocence of the
accused and is consistent only with his guilt.
3) 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 may only be inferred from the
proven facts.
4) On the availability of two inferences, the one in favour of
the accused must be accepted.
5) It cannot be said that prosecution must meet any and every
hypothesis put forward by the accused however far-fetched
and fanciful it might be. Nor does it mean that prosecution
evidence must be rejected on the slightest doubt because the
law permits rejection if the doubt is reasonable and not
otherwise."
29. Also, The Supreme Court in Anjan Kumar Sarma v. State of Assam
(2017) 14 SCC 359 entails the following factors :
"(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned
"must" or "should" and not "may be" established;
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be
proved; and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused. (See Sharad Birdhichand
Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State
of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , SCC p.
185, para 153; M.G. Agarwal v. State of Maharashtra [M.G.
Agarwalv. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ
235] , AIR SC para 18.)"
Analysis of Mobile Numbers and Call Details
Rajesh Chaudhary (A-2) - 9650668042, 9650668051
The prosecution has examined Sh. Vishal Gaurav (PW12) (Nodal Officer,
Bharti Airtel Limited) to prove mobile numbers 9650668042 and 9650668051
were issued in the name of Rajesh Chaudhary. PW12 proves the application
form Ex.PW12/A dated 22.07.2010 and Ex.PW12/B also dated 22.07.2010. The
documents produced before the court have not been cross examined. Further A-
2 during his statement under Section 313 Cr.P.C. has admitted the same.
Therefore, on the date of the incident A-2 was having the aforesaid mobile
numbers.
Mahesh Chaudhary (A-1) - 9871590376
The prosecution has examined Sh. Vishal Gaurav (PW12) (Nodal Officer,
Bharti Airtel Limited) who has proved the customer application form
Ex.PW12/C of said mobile number in the name of one Mannan Ali Saha. But
Mannan Ali Saha (PW24) has denied that he is in possession and in use of the
aforesaid mobile number. The accused has not cross examined this witness on
this point.
The aforesaid mobile number got recovered from the personal search of
A-1 on 05.05.2011 with a phone having IMEI No. 354305/04/860935/3 and
Mobile No. bearing 9871590376 vide personal search memo Ex.PW34/F which
was not denied by the accused in his statement under Section 313 Cr.P.C.
He failed to explain the manner in which he came into the possession of
the aforesaid mobile number. The CDR Ex.PW12/F corroborates usage of
the aforesaid mobile number by A-1. Therefore the accused A-1 was having the
said mobile on the date of the incident.
Lakhan (JCL) - 8860235416
The prosecution examined Israr Babu (PW10) (Nodal Officer, Vodafone
Mobile Services) to prove the customer application form. The said customer
application form of mobile number 8860235416 is Ex.PW10/A showing the
customer name as Rajesh Chaudhary issued on 28.09.2010. The accused has
not cross examined this witness on this point. The said mobile number has been
recovered from Co-Accused Lakhan (JCL) vide seizure memo Ex.PW37/G and
was in use of Lakhan (JCL).
Kamal Jaitly-9868357658
The prosecution examined Sh. Rakesh Soni (PW11) (Junior Telecom Officer,
MTNL) to prove the customer application form. The said customer application
form of mobile number 9868357658 is Ex.PW11/A showing the customer
name as Kamal Kishore issued on 08.12.2005.
Poonam Mehta-9868113416 & 9999284673
The prosecution examined Sh. Rakesh Soni (PW11) (Junior Telecom Officer,
MTNL) who proved the customer application of Poonam Mehta (PW14)
Ex.PW11/C. Also, prosecution examined Sh. Israr Babu (PW10) (Junior
Telecom Officer, MTNL) who proved the customer application of Poonam
Mehta (PW14) Ex.PW10/B.
Call Details Record (CDR)
30. The prosecution has examined Sh. Vishal Gaurav (PW12) (Nodal
Officer, Bharti Airtel Limited) to prove the call details of A-2 Rajesh
Chaudhary having mobile no. 9650668042 and 9650668051and also A-1
Mahesh Chaudhary having mobile no. 9871590376 for the period from
01.05.2011 to 06.05.2011. The call details are Ex.PW12/D, Ex.PW12/E and
Ex.PW12/F respectively. The certified copy of location chart is Ex.PW12/G
and certificate under Section 65B of Indian Evidence Act is Ex.PW12/H.
The said call details have not been disputed by both the accused persons during
cross-examination.
31. The prosecution has further examined Sh. Israr Babu (PW10) (Nodal
Officer, Vodafone Mobile Services) to prove the CDR of mobile no.
8860235416 which belongs to Rajesh (A-2) and mobile no. 9999284673 which
belongs to Poonam Mehta (PW14) which is Ex.PW10/C and Ex.PW10/D
respectively.
Both the accused persons have not cross examined PW10 pertaining to
correctness of its details having been conversed.
Important Calls on 02.05.2011
1. 09:46 am: Rajesh (at Faridabad) called Mahesh (at Loni, Ghaziabad) and
spoke to him for 41 secs.
2. 10:03 am: Rajesh (at Faridabad) called Mahesh (at Indrapuram/Ghazipur)
and spoke to him for 66 secs.
3. 10:16 am: Rajesh (at Faridabad) called Mahesh (at Ghazipur) and spoke to
him for 48 secs.
4. 10:37 am: Rajesh (at Faridabad) called Mahesh (at Ghazipur) and spoke to
him for 30 secs.
5. 10:52 am: Lakhan (4432) called Rajesh (at Faridabad) and spoke to him
for 29 secs.
6. 10:53 am: Rajesh (at Faridabad) called Mahesh (at East Vinod
Nagar/Mayur Vihar) and spoke to him for 31 secs.
7. 10:53 am: Rajesh (at Faridabad) called Lakhan (4432) and spoke to him
for 44 secs.
8. 11:01 am: Rajesh (at Faridabad) called Lakhan (4432) and spoke to him
for 28 secs.
9. 11:19 am: Rajesh (at Faridabad) called Mahesh (at Nehru Nagar/Ashram)
and spoke to him for 50 secs.
10. 11:52 am: Rajesh (at Faridabad) called Mahesh (at Ashram) and spoke to
him for 18 secs.
11. 11:57 am: Lakhan (4433) called Rajesh (at Badarpur/Faridabad) called
and spoke to him for 532 secs.
12. 12:06 pm: Rajesh (at Faridabad/Badarpur) called Mahesh (at Friends
Colony/Mathura Road) and spoke to him for 39 secs.
13. 12:09 pm: Rajesh (at Badarpur) called Mahesh (at Friends Colony) and
spoke to him for 60 secs.
14. 12:12 pm: Rajesh (at Badarpur/Sarita Vihar) called Lakhan (at 4432) and
spoke to him for 226 secs.
15. 12:16 pm: Rajesh (at Okhla-Phase I) called Mahesh (at Friends Colony)
and spoke to him for 29 secs.
16. 12:19 pm: Rajesh (at Apollo Hospital, Jasola) called Mahesh (at Mathura
Road) and spoke to him for 49 secs.
17. 12:26 pm: Rajesh (at Mohan Cooperative) called Mahesh (at Mathura
Road) and spoke to him for 78 secs.
18. 12:30 pm: Rajesh (at Apollo Hospital) called Lakhan (4432) and spoke to
him for 29 secs.
19. 12:31 pm: Rajesh (at Apollo Hospital) called Mahesh (at Ishwar Nagar,
Mathura) and spoke to him for 201 secs.
20. 12:42 pm: Rajesh (at Apollo Hospital) called Mahesh (at Okhla
Estate/Sukhdev Vihar) and spoke to him for 64 secs.
21. 12:44 pm: Rajesh (at Okhla Phase II) called Mahesh (at Okhla
Estate/Sukhdev Vihar) and spoke to him for 27 secs.
22. 12:45 pm: Rajesh (at Okhla Phase II) called Mahesh (at Okhla Estate) and
spoke to him for 40 secs.
23. 12:51 pm: Rajesh (at Nehru Place) called Mahesh (at Sukhdev Vihar/Okhla
Estate) and spoke to him for 26 secs.
24. 12:53 pm: Rajesh (at GK 1) called Mahesh (at Okhla Estate) and spoke to
him for 39 secs.
25. 01:09 pm: Rajesh (at C-Sec) called Mahesh (at East Kalkaji) and spoke to
him for 24 secs.
26. 01:26 pm: Rajesh (at CP) called Mahesh (at East Kalkaji) and spoke to him
for 21 secs.
27. 01:28 pm: Rajesh (at Mandir Marg/Jhandewalan Extn.) called Lakhan (at
4432) and spoke to him for 52 secs.
28. 01:38 pm: Lakhan (4432) called Rajesh (at West Patel Nagar) and spoke to
him for 52 secs.
29. 01:41 pm: Lakhan (4432) called Rajesh (at West Patel Nagar) and spoke to
him for 09 secs.
30. 01:46 pm: Rajesh (at East Patel Nagar) called Mahesh (at Paharganj /
Panchkuian Road) and spoke to him for 28 secs.
31. 01:47 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4432) and spoke
to him for 168 secs.
32. 01:57 pm: Rajesh (at Rajendra Place) called Mahesh (at West Patel Nagar)
and spoke to him for 14 secs.
33. 02:27 pm: Rajesh (at East Patel Nagar) called Mahesh (at East Patel
Nagar) and spoke to him for 9 secs.
34. 02:42 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4433) and spoke
to him for 284 secs.
35. 02:47 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4433) and spoke
to him for 14 secs.
36. 03:29 pm: Savina (PW20) calls Lakhan.
37. 03:33 pm: Rajesh (at Rajendra Place/East Patel Nagar) called Lakhan (at
4432) and spoke to him for 367 secs.
38. 03:59 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4432) and spoke
to him for 34 secs.
39. 04:04 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4432) and spoke
to him for 09 secs.
40. 04:04 pm: Mahesh (at East Patel Nagar) called Lakhan (at 4432) and
spoke to him for 08 secs.
41. 04:05 pm: Rajesh (at East Patel Nagar) called Mahesh (at East Patel
Nagar) and spoke to him for 24 secs.
42. 04:12 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4432) and spoke
to him for 33 secs
43. 04:14 pm: Mahesh (at East Patel Nagar) called Lakhan (at 4432) and
spoke to him for 3 secs.
44. 04:15 pm: Rajesh (at East Patel Nagar) called Mahesh (at East Patel
Nagar) and spoke to him for 11 secs.
45. 04:23 pm: Rajesh (at East Patel Nagar) called Lakhan (at 2332) and spoke
to him for 99 secs.
46. 04:31 pm: Mahesh (at East Patel Nagar) called Rajesh (at East Patel
Nagar) and spoke to him for 20 secs.
47. 05:05 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4712) and spoke
to him for 449 secs.
48. 05:14 pm: Lakhan (at 4712) called Mahesh (at East Patel Nagar) and
spoke to him for 50 secs.
49. 05:15 pm: Lakhan (at 4712) called Mahesh (at East Patel Nagar) and
spoke to him for 75 secs.
50. 05:19 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4712) and spoke
to him for 62 secs.
51. 06:02 pm: Lakhan (at 4712) called Rajesh (at East Patel Nagar) and spoke
to him for 37 secs.
52. 06:03 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4712) and spoke
to him for 115 secs.
53. 06:10 pm: Lakhan (at 4712) called Mahesh (at East Patel Nagar) and
spoke to him for 50 secs.
54. 06:11 pm: Lakhan (at 4712) called Mahesh (at East Patel Nagar) and
spoke to him for 34 secs.
55. 06:35 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4712) and spoke
to him for 228 secs.
56. 06:49 pm: Rajesh (at East Patel Nagar) called Lakhan (at 4712) and spoke
to him for 54 secs.
57. 06:53 pm: Lakhan (at 4712) called Mahesh (at East Patel Nagar) and
spoke to him for 59 secs.
58. 07:11 pm: Lakhan (at 4383) called Rajesh (at East Patel Nagar) and spoke
to him for 6 secs.
59. 07:11 pm: Rajesh (at East Patel Nagar) called Lakhan (at 1063) and spoke
to him for 39 secs.
60. 07:22 pm: Rajesh (at East Patel Nagar) called Lakhan (at 3943) and spoke
to him for 54 secs.
61. 07:36 pm: call recorded on Rajesh's number which shows his movement to
West Patel Nagar/ Old Rajinder Nagar.
62. 07:51 pm: a call on Lakhan's phone which shows his home location (4432).
63. Mahesh's call shows his movement to Pandara Road, Ashram, Ishwar
Nagar, Okhla Estate, Kalakaji, Okhla-Phase 3, Sri Niwas Puri. On the way,
at 08:30 Pm Mahesh speaks to Satish (PW21) on his number 9013053131.
64. Mahesh and Rajesh speak to each other at 10:25 pm for 42 Secs, at 10:42
pm for 79 secs, at 10:44 pm for 26 secs, at 01:32 am(on 03.05.2011) for 14
secs.
32. On analysis of call detail record of 8860235416 (Lakhan) and
9650668042 (Rajesh) indicates that they were in constant communication with
each other so frequently that it is not possible that both numbers were solely
being used by one person. This establishes that both numbers were used by two
different persons and not by one person. Thus, even though these numbers
were obtained in the name of Rajesh (A2), it is established that the first of these
numbers was being used by the JCL Lakhan.
This theory is strengthened with recovery of mobile no. 8860235416 from
JCL Lakhan on 07.05.2011 at Delhi, whereas A-2 was already arrested in the
present case at Dharbanga, Bihar on 05.05.2011 vide arrest memo Ex.PW 34/C.
He did not have the phone with the sim card of mobile No. 8860235416.
The aforesaid theory is further strengthened by statement of Kamal Kishore
Jaitly (PW19), who stated that Lakhan (JCL) told him earlier that he was using
the phone number provided by Rajesh. PW19 was not cross examined on this
aspect,
Further, A-2 failed to discharge the onus under Section 106 of the Indian
Evidence Act as he did not explain how the sim card in his name was found
with and was being used by the JCL Lakhan.
33. The further analysis of call detail record shows that the mobile no.
9871590376, which was in use by Mahesh Chaudhary (A1) was in frequent
contact with A-2. The frequency of calls between the two demonstrates that the
two persons were well known to each other. Pertinently, the said mobile got
recovered with IMEI No. 354305/04/860935/3 from Mahesh (A-1) vide
personal search memo Ex.PW34/F dated 05.05.2011. Mahesh A1 is the
brother-in-law of the accused Rajesh A2 as the sister of Mahesh A1 is married
to Rajesh A2.
34. Poonam Mehta (PW14) is the daughter of the deceased Om Prakash
Sharma. She used used to live in Old Rajinder Nagar. On 02.05.2011 at about
7:15 PM deceased Om Prakash and his daughter were talking on the phone
when a visitor came to the deceased‟s house. The deceased kept the phone on
hold. While PW14 was holding the call she heard some noise from the other
side. Then, suddenly, the call got disconnected. When she again tried to call the
deceased he did not picked up the phone. The statement of PW14 to this effect
is corroborated with the call details as reproduce below.
Calling No. Called No. Start time Call
duration
01125889704 9868113416 07:01:56 PM 26 seconds
(landline Number of (Poonam Mehta)
deceased)
01125889704 9868113416 07:02:48 PM 06 seconds
(Landline Number of (Poonam Mehta)
deceased)
35. Ambika (PW22) and her brother Pranav Jaitly (Grand children of
deceased) used to reside with deceased Om Prakash Sharma. On 02.05.2011
they went to attend tuition class in Alaknanada apartment. The JCL Lakhan was
the domestic help of the family. On 02.05.2011, Lakhan (JCL) had called PW-
20 Savina Jaitley (mother of Ambika/Pranav) twice or thrice, expressing his
desire to accompany the children.
36. The statement of Ambika Jaitly was clarified by Savina Jaitly
(PW20) during her cross examination, that she received a phone call from
Lakhan when he requested to accompany her kids in the car while they were to
go for tuition. She denied his request as her father in law would be alone.
Again, Lakhan (JCL) called her and insisted for the permission to accompany
the kids at the time they were to go for tuition, on the pretext that her younger
son was down with fever. She has further denied sending the children with
Lakhan of her own free will.
37. The factum of Lakhan (JCL) accompanying the children has not been
disputed. In fact, a suggestion was put on behalf of the accused to Savina Jaitly
(PW20), which was as follows:
"It is wrong to suggest that I sent Lakhan in the company
of my kids at the time they were to go to tuition of my own
and without any insistence by Lakhan."
38. Poonam Mehta (PW14) tried to call Kamal Jaitly but did not got
through. She finally spoke to her niece Ambika (PW22), who told her that the
deceased was alone at residence since the children and Lakhan were all out.
This is corroborated with CDR Ex.PW10/D reproduced hereunder:
Calling No. Called No. Start time Call duration
9999284673 9868141529 07:12:00 PM 100 seconds
(PW14) (PW22)
9999284673 9868141529 07:33:58 PM 23 seconds
(PW14) (PW22)
9999284673 9868257244 07:45:04 PM 30 seconds
(PW14) (PW22)
39. Realising that the deceased was alone, after the call with the deceased
disconnected and she could not talk to him, PW14 went to the deceased‟s house
and reached at about 7:40 PM. She found the iron grill gate open but the
wooden door closed. There was no response from the deceased. Accordingly,
Poonam Mehta (PW14) took the help of carpenter Anees (PW25) (who was
working at an under construction building of Kamal Jaitly), who entered the
house from the balcony and opened the main door to let PW14 in.
40. Thereafter, upon entering the house, PW14 and PW25 found the
deceased lying half on the bed with his legs touching the floor. He was bleeding
from his mouth and neck area. The wooden almirah in his room was lying open.
With the help of PW25, PW14 took him to Sir Ganga Ram Hospital in her car.
Statement of PW14 is corroborated with statement of PW25.
41. At Sir Ganga Ram Hospital, Dr. Aathira (PW13) attended to the
deceased Om Prakash Sharma and upon examination declared that he was
brought dead. Subsequently MLC Ex.PW13/A got prepared.
42. At this stage, we may also examine the movement of the accused on
the basis of the location chart of their mobile phones, as aforesaid.
LOCATION CHART
Time period Rajesh (A-2) Mahesh (A-1) Lakhan (JCL)
9:46 AM He was in Faridabad at his He was moving around He was in East Patel Nagar at
To house and recieved a call Ghaziabad Ghazipur, Faridabad, House of deceased with Om
12:06 PM from Savina Jaitly (PW20) at Mayur Vihar, Ashram then to Prakash Sharma (deceased).
around 11:30 AM. Freinds Colony/Mathura Road. He worked as servant in the
house.
12:09 PM He moved from Badarpur, , He moved from Mathura Road, He stayed at East Patel Nagar
To Sarita Vihar, Okhla Phase I, Okhla Estate, East Kalkaji, at House of deceased, where
1:41 PM Jasola, Okhkla Phase II, Paharganj/ Panchkuian Road. he worked as servant.
Nehru Place, GK-I,
Connaught Place,
Jhandewala to West Patel
Nagar.
1:46 PM He reached East Patel Nagar He reached West Patel Nagar He was at the house of
To and was waiting for Mahesh and subsequently to East Patel deceased alongwith Om
4:05 PM and roaming in nearby Nagar where Rajesh was already Prakash Sharma (deceased)
Rajendra place. present. and he talked to Savina
Jaitley (PW20) at 3:29 PM
and requested that he
accompanies children to the
tution, on pretext that her son
Pranav Jaitly has fever, to
isolate the deceased.
4:12 PM Both meet at about 4:15 PM as they both did not called each He was in the company of
To other since 4:15 PM and were in the same location as per their children who left the house to
6:53 PM location. attend their tution classes and
was reaching Alaknanda
Both were constantly in touch with Lakhan during this period. Apartments.
7:11 PM Both did not call each other but both were in the same location. He started moving towards
To the house with children at
7:51 PM Approximate time of muder of deceased was between 7:15 PM around 7:00 PM and talked to
to 7:40 PM Rajesh at 7:11 PM and a call
recorded on his mobile shows
Both were in contact with Lakhan. his location at the deceased's
house at 7:51 PM.
A call recorded on Rajesh's number shows his movement
towards West Patel Nagar/Old Rajinder Nagar. The deceased was already
taken to Hospital by Poonam
Mehta (PW-14).
7:51 PM Mahesh's calls shows his movement to Pandara Road, Ashram, He stays at the house till his
To Ishwar Nagar, Okhla Estate, Kalkaji, Okhla Phase III, Sri Niwas last recorded call at 7:56 PM.
10:44 PM Puri(where he Lived). Later at about 10:51 PM till
Midnight his location is at
At 8:30 PM Mahesh talks to Satish (PW21) on his number place designated with location
9013053131. Supposedly, at the Okhla railway station, to keep Number 8291.
the laptop and laser camera with him.
Rajesh and Mahesh talk to each other a couple of time at 10:25
PM and at 10:44 PM.
43. Analysis of the CDR of Rajesh Ex.PW12/D and Ex.PW12/E, CDR of
Mahesh Ex.PW12/F, CDR of Lakhan Ex.PW10/C, their respective location
charts, CDR of Poonam Mehta Ex.PW10/D, Ex.PW11/D and CDR of Kamal
Jaitly Ex.PW11/B indicates that Rajesh (A-2) on 02.05.2011 at about 09:46 AM
was at Faridabad, Mahesh (A-1) was at Ghaziabad and Lakhan (JCL) was in
East Patel Nagar in the house of the deceased. After frequent exchange of calls
between Rajesh (A-2), Mahesh (A-1) and Lakhan (JCL), both Accused persons
started to move towards East Patel Nagar where the house of the deceased is
located. Pertinently, Rajesh and Mahesh reached East Patel Nagar at about 2:27
PM and they remained there till about 7:36 PM. It is not out of place to mention
here that Lakhan (JCL) left the house alongwith the children of Savina Jaitly at
about 4:23 PM on the pretext that Pranav Jaitly (son of PW-20) is down with
fever, to isolate the deceased Om Prakash Sharma at the house No. 11/14 UGF,
East Patel Nagar, New Delhi after giving the information to A-2 of leaving the
house at about 4:12 PM.
44. Poonam Mehta (PW14) received a call from her deceased father at
around 7:00 PM and learnt from him that someone was at the door of the house.
The deceased put the phone on hold and Poonam Mehta (PW14) heard some
noises and the phone got disconnected and on suspicion she made a call to
Ambika Jaitly (PW22) who gave her the information that deceased is alone at
home as Chotu @ Lakhan (JCL) was with them, she reaches the house of the
deceased which was locked from inside. She got that house opened with the
help of Anees (PW25) and took injured deceased to Sir Ganga Ram Hospital
where he was declared brought dead vide MLC No. 1000/011 Ex.PW13/A.
45. The version given by the prosecution is consistent and is corroborated
with CDR of Rajesh Ex.PW12/D and Ex.PW12/E, CDR of Mahesh
Ex.PW12/F, CDR of Lakhan Ex.PW10/C, CDR of Poonam Mehta (PW14)
Ex.PW10/D, Ex.PW11/D and CDR of Kamal Jaitly (PW19) Ex.PW11/B. The
accused persons A-2 and A-1 were found present in the area of East Patel
Nagar where the house of the deceased is located and they were in touch with
Lakhan (JCL) throughout the day and changing their location. The accused
succeeded in isolating the deceased Om Prakash Sharma in his house after
around 4:23 PM onwards.
46. The statement of Poonam Mehta (PW14) and Kamal Jaitly (PW19),
daughter and son of the deceased are consistent with the circumstances and it
also matches with the timeline as provided by the CDR.
47. The submission regarding the blood stained Kurta Pyjama
(Ex.PW19/A) is a red herring. It is in the evidence that Poonam Mehta (PW14)
took her father to the hospital with the help of Anees (PW25). These
prosecution witnesses did not claim that the Kurta Pyjama of the deceased was
changed. It was not even suggested to them that the same was changed by
PW14 and/ or PW25. It has come in evidence that the body of the deceased
was partly on the bed and partly on the floor. He was bleeding. It is not out of
the ordinary to keep clothes which may have been washed, or which might be
kept for washing on the bed. Thus, there is no basis to assume that the clothes
of the deceased were changed, or that the kurta pyjama Ex. PW19/A were the
ones worn by the deceased at the time when he was attacked. Even otherwise,
it does not stand to reason and common course of human conduct that the
daughter PW14 would waste time in changing the clothes of her severely
injured and bleeding father, and not rush him to the hospital at the earliest.
48. When Poonam Mehta (PW14) reached the house of her
deceased father and noticed his condition, her immediate thought would have
been to save her father, rather than to collect or give the information from the
neighbours. It is because of this reason that she with the help of PW25 took her
father to Sir Ganga Ram Hospital. Her conduct is natural and consistent. So far
non filing of CDR from date of 04.05.2011 to 06.05.2011 is concerned, no
adverse inference can be drawn against the prosecution, as it was open to the
defence to file the same if it favoured the accused persons. The incident was of
02.05.2011. Therefore, the CDR of 02.05.2011 was the most relevant. The
same has been led in evidence.
Time of the incident on the basis of the CDRs comes to between 7:15
PM to 7:40 PM, when the presence of A-2 and A-1 at East Patel Nagar is
established. This circumstance connects the accused person with crime They
have not explained the reason for their presence in the area at the relevant area.
Absconding
49. The date of the incident is 02.05.2011. Inspector Ravinder Singh
(PW37) reached to the spot and searched for the accused persons but they were
not traceable. During the investigation Mahesh (A-1) was in touch with Rajesh
(A-2). Both of them were absconding from their respective houses. The reason
for them leaving their residence and the city is not explained by these accused
and their abscondance is an incriminating circumstance. Tracking of their
mobile phones established that they were going towards Madhubani, Bihar.
Also, Mahesh (A-1) before leaving for Madhubani, Bihar made a call from his
number 9871590376 to his friend Satish (PW21). Tracking the mobile numbers
of the accused resulted in the arrest by Insp. Rajesh Kumar (PW38) of both the
accused A-1 and A-2 in P.S. University, Darbhanga, Bihar. Consequently,
police party recovered Mobile phone having IMEI No. 354305/04/860935/3
using phone No. 9871590376 from A-1 on his personal search vide personal
search memo Ex.PW34/F. Moreover, both the accused persons have not denied
that both of them were not apprehended at Leela Krishan Bhawan Hotel and
were arrested at P.S. University, Darbhanga, Bihar. Pertinently, even in their
native region, they were not found to be living in their village homes, but in a
hotel. There is no explanation for this conduct, and the only reason appears to
be to evade arrest by the police.
50. The abscondance of both the accused persons from Delhi to
Darbhanga, Bihar immediately after the incident of robbery and murder goes
against both accused persons.
Arrest
51. After the registration of FIR vide FIR NO. 92/11 Ex.PW4/B, I.O.
Inspector Ravinder Singh (PW37) searched for suspected accused persons but
they were not traceable at their respective houses. During the investigation it
transpired that Mahesh Chaudhary (A-1) was in the company of Rajesh
Chaudhary (A-2). A-1 and A-2 were moving towards Madhubani, Bihar.
Inspector Ravinder Singh instructed Inspector Rajesh Kumar (PW38) to
constitute a raiding party. Consequentially, Inspector Rajesh Kumar constituted
SI Vivek Singh (PW34), HC Sanjiv Kumar and himself as raiding party
members and started chasing Acccued persons and remained in constant touch
with (PW37). Inspector Rajesh Kumar (PW38) received the location of the
suspects at Darbhanga Bus Terminal and contacted the concerned local P.S. and
took help of SI Ashok (PW31) and other staff and started searching for the
accused persons in guest houses and Hotel near Dharbanga bus stop. When they
reached Leela Krishan Bhawan Hotel, photographs of both suspects were
shown to the manager of the guest house who told them that both are present in
room No. 106 of his guest house, since 04.05.2011. On checking the guest
house register, their entry was found at No.606 in the hotel register
Ex.PW27/B, where accused had made their entry under the name Ramesh
Kumar Chaudhary S/o Ram Kumar. Thus, the accused concealed their true
identity and no explanation for this conduct is forthcoming. This is another
circumstance to connect the accused A1 and A2 with the crime. On basis of the
aforesaid information, they entered the said room where they found the suspects
present in the room and hence they were apprehended there and later arrested at
P.S. University, Darbhanga, Bihar vide Arrest Memo Ex.PW34/C (A-2) and
Ex.PW34/D (A-1) and vide personal search memo Ex.PW34/E (A-2) and
Ex.PW34F (A-1). PW27 Rajesh Kumar Aggarwal, who was running the hotel
has completely supported the case of the prosecution in this regard and the fact
that the accused had checked into the hotel and were arrested from there. He is
a completely independent witness and there is no reason to doubt this statement.
52. Thus, the prosecution has able to prove that both the accused person
were arrested from Darbhanga, Bihar on 05.05.2011 and brought back to Delhi.
Later, Co-accused Lakhan (JCL) was also apprehended and his version was
recorded Ex.PW37/E.
Recovery
1) Recovery of cash
The contention of the learned counsel for the Appellants that joint disclosure
is no disclosure in the eyes of law and, therefore, there is no recovery within the
meaning of Section 27 of Indian Evidence Act has no force.
In the instant case, it is established that both the accused persons were together
before the crime, and they were in the same areas
(as per the location chart of their mobile phones) at the time of commission of
the crime, which was the area where the crime was committed. Even thereafter,
the location chart shows that they were together after the commission of crime
too, while absconding from their house. On tracking their respective mobile
phones, they were moving towards Madhubani together, and before reaching
their destination they were apprehended by the police on the way
simultaneously from the same location. Therefore, they both had exclusive
knowledge.
The law on joint disclosure is settled in relevant paragraph of the Supreme
Court In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 which is
reproduced here under:-
"145. Before parting with the discussion on the subject
of confessions under Section 27, we may briefly refer to
the legal position as regards joint disclosures. This point
assumes relevance in the context of such disclosures
made by the first two accused viz. Afzal and Shaukat.
The admissibility of information said to have been
furnished by both of them leading to the discovery of the
hideouts of the deceased terrorists and the recovery of a
laptop computer, a mobile phone and cash of Rs. 10 lacs
from the truck in which they were found at Srinagar is in
issue. Learned senior counsel Mr. Shanti Bhushan and
Mr. Sushil Kumar appearing for the accused contend, as
was contended before the High Court, that the
disclosure and pointing out attributed to both cannot fall
within the ken of Section 27, whereas it is the contention
of Mr. Gopal Subramanium that there is no taboo
against the admission of such information as
incriminating evidence against both the
informants/accused. Some of the High Courts have taken
the view that the wording "a person" excludes the
applicability of the Section to more than one person.
But, that is too narrow a view to be taken. Joint
disclosures to be more accurate, simultaneous
disclosures, per se, are not inadmissible under Section
27. "A person accused" need not necessarily be a
single person, but it could be plurality of accused. It
seems to us that the real reason for not acting upon the
joint disclosures by taking resort to Section 27 is the
inherent difficulty in placing reliance on such
information supposed to have emerged from the
mouths of two or more accused at a time. In fact, joint
or simultaneous disclosure is a myth, because two or
more accused persons would not have uttered
informatory words in a chorus. At best, one person
would have made the statement orally and the other
person would have stated so substantially in similar
terms a few seconds or minutes later, or the second
person would have given unequivocal nod to what has
been said by the first person. Or, two persons in
custody may be interrogated separately and
simultaneously and both of them may furnish similar
information leading to the discovery of fact. Or, in rare
cases, both the accused may reduce the information
into writing and hand over the written notes to the
police officer at the same time. We do not think that
such disclosures by two or more persons in police
custody go out of the purview of Section 27 altogether.
If information is given one after the other without any
break almost simultaneously, and if such information
is followed up by pointing out the material thing by
both of them, we find no good reason to eschew such
evidence from the regime of Section 27. "(emphasis
supplied)
Both the Acuused Mahesh Chaudhary (A-1) and Rajesh Chaudhary (A-2)
simultaneously and jointly took the police party and Kamal Kishore Jaitely
(PW19) son of the deceased Om Prakash Sharma to the house of Rajesh
Chaudhary‟s father in law, where he was residing temporarily while he was
carrying out the construction of his house. The accused Rajesh Chaudhary led
and picked up a key which was kept over the almirah in said room and handed
over the same to Mahesh who opened the almirah and took out a plastic bag and
the bag was opened and currency notes amounting to Rs. 2,80,300 were taken
out. The said currency notes were sealed vide seizure memo Ex.PW19/C.
Admittedly the house situated in A-block Ganpati Colony, Roshan Nagar,
Faridabad, Haryana is the house of the father in law of Rajesh (A-2). It has
come on record that at the time of commission of the offence, A-2 was putting
up at that very house. Further, as per Inspector Ravinder Singh (PW37) and
Kamal Jaitly (PW19) who visited that house upon the disclosure statement of
accused being made, have deposed that A-2 took a key from over the Almirah
and handed over the same to A-1 who then opened the Almirah and handed
over a plastic bag which had currency notes amounting to Rs. 2,80,300 which
belonged to (PW19) Kamal Kishore Jaitly.
Moreover the accused have not claimed the amount of Rs. 2,80,300/- in
their statements recorded under Section 313 Cr.P.C. Therefore, the alleged
recovery amounting to Rs. 2,80,300/- at the instance of the two accused goes
against them since they have not explained the source of that large amount.
2) Recovery of blood stained shirts
The accused Mahesh (A-1) and Rajesh (A-2) in their disclosure statements
Ex.PW30/A and Ex.PW30/B disclosed about their shirts and in pursuance to
their disclosure statement both accused person led the police party and Kamal
Jaitly (PW19) to the field near the house of A-1 i.e. A-block Ganpati Colony,
Roshan Nagar, Faridabad, Haryana and got recovered one polythene containing
2 blood stained shirts, one white colored shirt with stripes and other ferozi
colored, on the polythene the phrase "Thank you, Have a nice day." was
printed. Both the shirts were sealed vide seizure memo Ex.PW19/E and the
blood stained shirts are Ex.P.12 and Ex.P.13 which were deposited in Malkhana
vide Malkhana Register Ex.PW17/A and the same were sent to FSL, Rohini.
FSL report is Ex.PX and Ex.PY. The blood Gauze piece of deceased Om
Prakash Sharma was having 'B Group' human blood and the shirts Ex.P.12 and
Ex.P.13 too were found to be having 'B Group' human blood on it. This too is
an incriminating circumstance and connects both accused persons to the crime.
The place where their shirts were hid was known only to them and it was within
their special knowledge. There is no explanation offered by the accused
regarding the said disclosure, except that they are falsely implicated and the
recovery is planted. PW19 is an independent witness. He had no reason to
falsely implicate the accused. Merely, because he is the son of the deceased, it
does not follow that he would falsely implicate the accused. In fact, he would
be interested in seeing that the real culprits are brought to justice and he would
not be interested in getting innocent persons falsely implicated.
3)Recovery of weapon of offence
A-1 and A-2 further made disclosure pertaining to the weapon of offence i.e.
knife and rope on 08.05.2011 Ex.PW37/D and Ex.PW37/C respectively. They
further disclosed that they have kept stolen jewellery as part of booty to Lakhan
(JCL) in almirah lying in balcony at house of the complainant. (JCL) in
pursuance to his disclosure statement dated 08.05.2011 got recovered a gold
chain, two gold rings from the said almirah. Further, they have thrown away the
stolen ladies bag containing rope near the pond near Awana Market which was
used in strangulating the deceased Om Prakash Sharma and was kept in the
house by (JCL) Lakhan.
The knife was recovered vide Ex. PW-19/G from Srinivaspuri bus stand.
The knife was blood stained. Merely because the blood group of the blood on
the knife could not be detected, neither the recovery, nor the identity of the
knife can be doubted. Pertinently, there is no report to say that the blood group
of the blood found on the knife was different from the blood group of the
deceased. The absence of the handle on the discovered knife also does not raise
any doubt. Pertinently, the death of the deceased was not on account of a fatal
knife blow. It was on account of strangulation. If the police had to plant a
knife, they would have planted a full knife and not just the blade without the
handle. This, in fact, supports the genuineness of the recovery.
In pursuance to disclosure statements both the accused A-1 and A-2 led the
police party comprising of Inspector Gurdev Singh (PW35), Ct. Kamla Prasad
(PW32), Ct. Satya Prakash (PW-33) alongwith the complainant Kamal Jaitly
(PW19) to the pond near Awana market, Faridabad and both the accused took
them to the ditch from where a black ladies bag bearing "KDM" Ex.P.9
containing blood stained synthetic rope of about 1.5 metres Ex.P.10 which was
discovered and recovered and same was seized vide seizure memo Ex.PW19/J.
The recovered articles were deposited in Malkhana MHC(M) vide Ex.PW17/A
and the same were sent to FSL, Rohini. FSL Report is Ex.PX and Ex.PY, the
blood stained rope was found to have human blood of 'B Group' which also
corroborates with the statement of Dr. B.N. Mishra (PW9). These recoveries
are also pointers to the commission of offence by the accused only.
4) Recovery of Laptops and camera.
Accused Mahesh Chaudhary (A-1) and Rajesh Chaudhary (A-2) were
arrested by the team of Inspector Rajesh Kumar (PW38) in Darbhanga, Bihar
on 05.05.2011 where they made disclosure statement Ex.PW38/B and
Ex.PW38/A respectively. In pursuance to this disclosure, they were brought
back to Delhi and Accused Mahesh (A-1) identified Satish Kumar (PW21) on
07.05.2011 and got recovered two laptops and a laser camera vide Ex. PW-19/F
form Satish Kumar's Clinic and same has been identified by Kamal Kishore
Jaitly (PW19). As per CDR Ex.PW12/F, Mahesh moved towards Pandara
Road, Ashram, Ishwar Nagar, Okhla Estate, Kalakaji, Okhla-Phase 3, Sri Niwas
Puri. On the way, at 08:13 PM Mahesh speaks to Satish (PW21) on his number
9013053131, CDR of Mahesh confirms the same which is reproduced as under:
Calling No. Called No. Start time Call duration
9871590376 (A-1) 9013053131(PW21) 20:13:11 PM 117 Seconds
9013053131 (PW21) 9871590376 (A-1) 20:20:02 PM 21 Seconds
9013053131 (PW21) 9871590376 (A-1) 20:26:17 PM 6 Seconds
9871590376 (A-1) 9013053131 (PW21) 20:45:59 PM 108 Seconds
9013053131 (PW21) 9871590376 (A-1) 20:51:43 PM 0 Seconds
9013053131 (PW21) 9871590376 (A-1) 20:52:09 PM 20 Seconds
The factum of a call being made by Mahesh (A-1) to Satish (PW21) is
corroborated with statement of PW21 who has stated that on 02.05.2011
between 7:00 PM to 8:00 PM, Accused Mahesh called Satish twice on his
phone and asked him to reach Okhla railway station, on both occasions he
refused to come, but on asking third time he agreed and reached Okhla railway
station where A-1 handed over a bag containing two laptops and a laser camera.
The same was seized vide seizure memo Ex.PW19/F.
Handing over of the laptops and laser camera has not been disputed by the
A-1 too, as is evident from his cross examination of PW-21. The same is
reproduced as under:
"It is wrong to suggest that after Mahesh handed over the
laptops to me, I operated the same and tampered with the
same or that then police picked me up."
There is no evidence adduced by any of the accused persons to substantiate
any allegation of tampering. The recovery of two laptops Ex.P.1 and Ex.P.2 and
a laser camera Ex.P.3 at the instance of Mahesh Chaudhary (A-1) stands
proved. PW-21 is an independent witness. He knew the accused A-1. Their
mobile conversation has been duly proved on the day of the incident after the
incident had taken place. The sequence in which the events appear to have
unfolded - as established by the CDRs of A-1 and PW-21 clearly establishes
the case of the prosecution with regard to the involvement of the accused A-1.
Medical Evidence.
53. The deceased was admitted to the Sir Ganga Ram Hospital at about
8:13 PM vide MLC No.1000/011 where he was declared brought dead by Dr.
Aathira Pankajakshan (PW13) vide MLC Ex.PW13/A with the following
injuries on his person :
1) C-shaped stab wound at the root of neck anteriorly 1.5
inches in length irregular margins,
2) Lacerated injuries on the root of neck,
3) Bluish discoloured linear markings at root of neck
encircling the neck above the lacerations,
4) Bluish discoloration on right side of neck, bleedings from
both ears and from would at root of neck.
54. The post mortem was conducted at DDU Hospital by Dr. B. N.
Mishra (PW9) on 3.05.2011 at 2:15 PM and its report is Ex.PW9/A and he
found the following external and internal injuries as under :
1) Ligature mark present all around the neck at the level
of thyroid cartilage with horizontally placement. The total
length of the ligature mark measured 38 cm in circumference
and 2 cm- 3.5 cm in width with variable degree of pressure
marks with abraded bruised at base of ligature mar and
marginal area. The anterior aspect of ligature mark
presented with diffused in pattern and abraded bruised with
having the width of 2.5 cm- 3.5 cm. The inferior boarder of
the ligature mark bears deep grooving pressure mark which
continues towards the lateral and posterior aspect of the neck
with width of 1cm. On the bilateral and posterior aspect of
the neck presented pressure mark with grooving markedly
with uniform and continuous in pattern having the width of
1.5 cm. The anterior aspects of pressure mark have reddish
brown colour while rest of part having blackish brown in
colour. On dissection of the ligature mark the underneath
tissue seen bruised and ecchymosed. On further exploration
of the area (neck part) multiple bruising and extravasations
of blood revealed on the soft tissue of neck sternohyoid
sternomastiod and fascia etc. The laryngeal and tracheal
mucosa seen highly congested. The right cornua of the hyoid
bone and right lamellae of the thyroid cartilage found
fractured alongwith collection of dark red clotted blood
adjacent of fractured site.
2) Three apartly placed incised wounds of variable size from
2cm x muscle deep to 1.5 cm x 0.5 cm x skin deep present on
the basal part of the neck above the sternum having sharp
and regular margins with minimal amount of dark red clotted
blood present in and around it "
On internal examination, it was found that sub-scalp was
congested with petechials; congested engorged blood vessels
of meninges and brain with numerous petechae seen on the
surface of the brain; the hyoid bone, thyroid cartilage
fractured alongwith multiple bruising and haemorrhagic
spots into the soft tissue of neck as mentioned in external
injury no.1; Tracheal mucosa highly congested and covered
by bloody froth; Blood tinged froth present in tracheal lumen
and both lungs congested and suffused on cut section
exudating bloody froth.
55. The cause of death as per Ex.PW9/A is as under:-
1. TIME SINCE DEATH: Approx. 18hours prior to post-
mortem examination.
2. The cause of the death is due to asphyxia caused by ligature
strangulation by using rope like ligature.
3. All injuries are ante mortem in nature and same of duration.
4. The external injury No.1 was sufficient to cause death in
ordinary course of nature.
5. Manner of death is Homicide.
Time since death is approximately 18 hours, which connects
the date and time of the incident.
False Plea
56. The plea taken by the defence that both the accused A-1 and A-2 are
falsely implicated by Savina Jaitly (PW20), Kamal Jaitly (PW19) and Poonam
Mehta (PW14) does not seem to be correct for the reasons discussed above.
They are not interested witnesses. Their interest lies in bringing the killer of
their father to justice and not in falsely implicating innocent person, while the
real culprits get away with their crime. The plea of A-2 that he reached East
Patel Nagar on asking of PW20 to collect the laptop for getting them repaired
also does not seem to be correct, since this was not suggested to PW-20 in her
cross examination. Further, the plea that after collecting the laptop they both
reached Nehru Place for the service of laptop and they found that the shops
were closed, then A-2 requested A-1 to hand over the same to one Satish
(PW21), friend of A-1 is not supported by the statement of PW-21. PW-21
stated that:
"On 02.05.2011, at about 7-8 pm, Mahesh Chadhary
accused called me twice on phone and asked me to reach Okhla
Railway Station. Both the times I refused. But when he asked
me for the third time, I reached Okhla Railway Station, where
Mahesh Chaudhary accused were present. He handed over to
me a bag. It contained two laptops and a camera like
instrument. By handing over the bag containing these items to
me, Mahesh Chaudhary accused told me that these belong to
his friend and that he, Mahesh Chaudhary, would come the
next day and collected the same from him. So, I brought the
bag containing these items to my house."
(emphasis supplied)
The pleas taken by the accused do not appear to be correct for the following
reasons:
i. A-1 and A-2 did not examine any defence witness in the support of
their defence.
ii. A-1 and A-2 avoided examining themselves under Section 315
Cr.P.C., as witness.
iii. Plea of A-1 and A-2 is not supported with the statement of PW21 who
is a material witness, as he has specifically stated that A-1 told him
that Laptop belongs to his friend and that A-2 will collect it on the
next day only.
iv. There is no cogent reason appearing on the record to suggest the false
implication against the A-1. Pertinently, A-2 was driver of the
complainant for 10 years.
v. There was no financial gain to be derived by PW20 and PW19 as the
money and jewellery already belonged to them, and there is
absolutely no material evidence to even remotely suggest that they
would stage manage a robbery and murder of their own father.
vi. The complainant PW-14, daughter of the deceased did not raise any
suspicion on the accused and suspicion arose, firstly, on A-2 and,
upon investigation the role of A-1 and the JCL became clear. This
shows that the version of the prosecution is natural and consistent.
Motive
57. As per the prosecution version, motive behind the murder of Om
Prakash Sharma is a conspiracy hatched by A-2 with the help of (JCL) Lakhan
and A-1 to meet the financial needs for construction of the house by A-2 in
Faridabad. Also, money was required by (JCL) Lakhan for his domestic
purposes.
58. PW19 has specifically stated in his statement that A-2 was on leave
on the ground that he had suffered burn injuries and he had to get his house
constructed which is not disputed. Moreover, Accused A-2 has not cross
examined PW19 on this point. Therefore, it remained un-rebutted.
59. The amount of Rs. 2,80,300 too was recovered from the house
situated in A-Block, Ganpati colony, Roshan Nagar, Faridabad, Haryana., and
not from Darbhanga, Bihar at the time of arrest, which shows that A-2 required
money at Faridabad for his house construction.
Thus, motive for commission of the offence is established. In any event,
failure to prove motive by prosecution ipso facto is not fatal to the prosecution
case. The reference could be drawn from Supreme Court judgment in Amitava
Banerjee v. State of West Bengal (2011) 12 SCC 554:
"41. Motive for the commission of an offence no doubt
assumes greater importance in cases resting on
circumstantial evidence than those in which direct
evidence regarding commission of the offence is
available. And yet failure to prove motive in cases
resting on circumstantial evidence is not fatal by itself.
All that the absence of motive for the commission of the
offence results in is that the court shall have to be more
careful and circumspect in scrutinizing the evidence to
ensure that suspicion does not take the place of proof
while finding the accused guilty.
42. Absence of motive in a case depending entirely on
circumstantial evidence is a factor that shall no doubt
weigh in favour of the accused, but what the Courts need
to remember is that motive is a matter which is primarily
known to the accused and which the prosecution may at
times find difficult to explain or establish by substantive
evidence.
43. Human nature being what it is, it is often difficult to
fathom the real motivation behind the commission of a
crime. And yet experience about human nature, human
conduct and the frailties of human mind has shown that
inducements to crime have veered around to what Wills
has in his book "Circumstantial Evidence" said:
"The common inducements to crime are the desires
of revenging some real or fancied wrong; of
getting rid of a rival or an obnoxious connection;
of escaping from the pressure of pecuniary or other
obligation or burden; of obtaining plunder or
other coveted object; of preserving reputation,
either that of general character or the conventional
reputation of profession or sex; or of gratifying
some other selfish or malignant passion."
Conclusion
60. As discussed above, the facts emerging on record is crystal clear that
the accused persons succeeded in their design to isolate deceased Om Prakash
Sharma aged 86 years in his own house i.e. House no. 11/14 UGF, East Patel
Nagar, New Delhi on 02.05.2011, 4:30 PM onwards, in pursuance to their
conspiracy. The CDR Ex.PW10/C, Ex.PW10/D, Ex.PW11/B, Ex.PW11/D,
Ex.PW12/D, Ex.PW12/E and Ex.PW12/F indicates that A-1 and A-2 were
together on 02.05.05.2011 before the incident and were in the same vicinity of
the house, from about 2:27 PM to about 7:36 PM. After the incident A-1 met
Satish (PW21) and handed over two laptops Ex.P.1 and Ex.P.2 and a laser
camera Ex.P.3 thereafter they absconded. On tracking, they were found to be
together and going to their native place Madhubani, Bihar and were arrested at
Darbhanga, Bihar on 05.05.2011 vide arrest memo Ex.PW34/C and
Ex.PW34/D which resulted into their joint disclosure of A-1 and A-2
Ex.PW38/A and Ex.PW38/B which led to the recovery of two blood stained
shirts Ex.P.12 and Ex.P.13 which they were wearing at the time of committing
the crime and weapon of offence i.e. blood stained rope Ex.P.10, knife Ex.P.11,
and cash of Rs.2,80,300/- and jewellery items.
61. The blood seized at the spot and blood gauze seized at the time of post
mortem of the deceased Om Prakash Sharma was sent to FSL, Rohini and
found to have human blood „B Group‟ alongwith two blood stained shirts
which were worn by A-1 and A-2 at the time of committing murder of the
deceased Om Prakash Sharma. The blood found on two shirts Ex.P.12 and
Ex.P.13 and weapon of offence i.e. rope was also found to have human blood of
„B Group‟. The blood of B group of the deceased has not been disputed,
whereas A-1 and A-2 have not claimed that they also have the same blood
group i.e. „B Group‟. The recovery of the weapon of offence i.e. rope Ex.P.10,
two blood stained shirts worn by A-1 and A-2 at the time of incident and their
presence in the vicinity of the house indicates to the guilt of crime by A-1, A-2
and their accomplice - and no one else, pursuant to the hatched conspiracy. The
prosecution version also strengthens with recovery of robbed amount of Rs.
2,80,300 which A-1 and A-2 have not claimed. Recovery of two laptops and a
laser camera from Satish (PW21) also corroborates with the CDR Ex.PW12/F
which strengthens the prosecution case.
62. The chain of the events that have been established connect to each
other so consistently, and the abscondance of the accused and recoveries lead to
the only conclusion of guilt of the accused.
In Bodh Raj v. State of Jammu and Kashmir (2002) 8 SCC 45, the
Supreme Court observed:
"9. Before analysing factual aspects it may be stated that
for a crime to be proved it is not necessary that the crime
must be seen to have been committed and must, in all
circumstances be proved by direct ocular evidence by
examining before the court those persons who had seen its
commission. The offence can be proved by circumstantial
evidence also. The principle fact or factum probandum may
be proved indirectly by means of certain inferences drawn
from factum probans, that is, the evidentiary facts. To put it
differently, circumstantial evidence is not direct to the point
in issue but consists of evidence of various other facts which
are so closely associated with the fact in issue that taken
together they form a chain of circumstances from which the
existence of the principal fact can be legally inferred or
presumed"
63. Reliance placed on the aforesaid decisions by the appellants, in our
view is of no avail. Babu Ram (supra) is of no relevance considering the fact
that, firstly, the motive for commission of the crime is established i.e., to
commit robbery and make financial gain. In any event, failure to prove the
motive is not fatal in every case, as held in Amitava Banerjee (supra).
64. While arriving at our conclusion, we have applied the principles laid
down in Mahmood (supra). Since the evidence in the present case is clear and
cogent and excludes every other hypothesis and points only to the guilt of the
accused, reliance placed on Shankarlal Gyarasilal Dixit (supra) is misplaced.
For the same reason, reliance placed on Tanviben Pankaj Kumar Divetia
(supra) is also misplaced, since, the present is not a case based on mere
conjectures or suspicion, and there is clear, cogent and clinching evidence to
establish the involvement of the appellants in the commission of the crime. For
the same reasons, reliance placed on Sudama Pandey (supra); Gagan Kanojia
(supra) and Anjan Kumar Sarma (supra) is of no avail.
65. Reliance placed on Deepak Chadha (supra) is misplaced for the
reason that the case of the prosecution is not premised merely on the recoveries.
There is other cogent and clinching evidence available in the form of the CDRs
of the accused, PW21 etc. There is also sufficient forensic evidence to establish
the involvement of the accused in the commission of the crime as discussed
above. The common intention of the accused A1 and A2 has been clearly
established in the facts of the present case since they are related; they were
living together; they were in the same area where the offence was committed at
the same time; they were arrested simultaneously at the same place; they made
a common disclosure statement, and; they got some of the recoveries affected
simultaneously.
66. Reliance placed on Lallan Rai (supra) & Pandurang Tukia (supra) is
misplaced. In their statement recorded under Section 313 Cr.P.C., the accused
failed to explain the incriminating circumstance found against them. Thus,
reliance placed on Nagraj (supra) by the appellants is of no avail. On the
contrary, they have failed to avail of the opportunity granted to them to explain
the incriminating circumstance, which clearly points to their guilt.
67. Thus, we find no infirmity with the impugned judgment dated
29.11.2014 and order on sentence dated 02.12.2014 passed by the learned
Additional Session Judge, and the same is upheld. We find no merit in the
appeal of A-1 and A-2.
68. Therefore, both the appeals are dismissed and all the pending
applications are disposed of. One copy of this judgment be placed on Crl. A.
774/2015 Rajesh Chaudhary v. State
69. LCR file be sent back forthwith along with a copy of this judgment.
No order as to costs.
I.S.MEHTA
(JUDGE)
VIPIN SANGHI
(JUDGE)
OCTOBER 22, 2018
