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St. Vs Surinder Mishra etc.

IN THE COURT OF SHRI S. P. GARG : ADDL. SESSIONS JUDGE : NEW DELHI Sessions case No.14/1999 State Vs. (1)Surinder Mishra (A-1) S/o Sh. Bhagwan Dass Mishra R/o E 279, Sec. 15 Noida (UP) (2)Tejinder Virdi @ Dolly(A-2) D/o Sh. Mahender Singh R/o B-22, Suraj Mal Vihar, Delhi (3)Jaspreet Virdi @ Sonu(A-3) D/o Sh. Mahender Singh R/o B-22, Suraj Mal Vihar, Delhi (4)Romesh Sharma (A-4) S/o Sh. Satya Narain R/o C-30, Mayfair Garden, New Delhi (5)Hem Chand @ Nani (A-5) S/o Sh. Raja Ram R/o P-I/130, Mangol Puri, New Delhi (6)Sant Ram (A-6) S/o Sh. Ram Ganesh R/o P-6/75, Mangolpuri, New Delhi (7)Ramesh @ Bobby @ Rajesh @ Ajay @ Raju (A-7) S/o Sh. Munna Lal R/o Q-2/22, Mangolpuri, New Delhi

2 FIR No. 188/99 U/s 302/114/506/120B/34 IPC PS Mehrauli JUDGMENT

St. Vs Surinder Mishra etc.

1.

Accused Surinder Mishra (A-1), accused Tejinder

Virdi @ Dolly (A-2), accused Jaspreet Virdi @ Sonu (A-3), accused Romesh Sharma (A-4), accused Hem Chand @ Nani (A-5), accused Sant Ram (A-6) and accused Ramesh @ Bobby @ Rajesh (A-7) were arrested by the police of PS Mehrauli vide FIR No. 188/99 and were challaned to the court for trial for the commission of the offences punishable U/s.302/506/114/120-B/34 IPC. In nut shell, case of the prosecution is as under :Facts of the case 2.

Prosecution case unfolds a pathetic, chilling and

sinister phenomenon where an innocent life was eliminated from this worldly scene and consigned to her heavenly abode by putting an untimely end.

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3.

Present case was registered by the police of PS

Mehrauli on the statement of Ram Achal Tiwari on 20.03.1999. In his statement, complainant Ram Achal Tiwari disclosed to the police that he was working as caretaker at Jai Mata Di farm house, Chattarpur for the last about two years and was residing there. A-4 was in jail for the last several months and A-1, nephew of A-4, was looking after the farm house. On 20.03.1999, at about 8 AM, A-1 came at the farm house and met his men A-5 to A-7 and one Rakesh (PO). The said persons were engaged at the farm house for the last about 1 ½ months. After about twenty minutes, A-1 reached at the farm house and told him that Kunjum madam (since deceased) would come to the farm house and that he should get mandir cleaned for the purpose of pooja to be done by her. At about 11.30 AM, two girls Dolly (A-2) and Sonu (A-3) who used to come to the farm house along with A-1 came in a car along with one pandit Chhawi Dass and told him to clean

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the mandir and they would return with pooja articles after sometime for getting pooja done and thereafter they left the place. The complainant further disclosed to the police that at about 12 noon, deceased Kunjum came in her Toyota. She called him and told that the car had got punctured and he should call some mechanic. He, thereafter, called mechanic who went back to his shop to bring tools. Deceased Kunjum handed over keys of the kothi to him and told him to open it. He went along with the deceased Kunjum and opened the building and thereafter, he along with deceased Kunjum entered the same. Kunjum went to pooja room and on her return from there, she reached the main gate of the building at about 12.30 PM. At that time, A-5 to A-7 along with accused Rakesh entered the building. A-5 and accused Rakesh were having knives. A-6 was having a revolver while A-7 was

having a bottle. All of them confronted the deceased Kunjum as to how she had entered the building. A-7 and Rakesh

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felled Kunjum on the ground and A-5 gave blows with knife on various body parts of deceased Kunjum while Rakesh gave blow with bottle on her chest. A-6 waived revolver threatening him that in case he came there, he would be shot at. All the said four persons committed murder of said Kunjum and took away hand-bag and mobile phone of the deceased and fled away from the spot. He rushed out to inform the police

control room but could not get the number and went to Chattarpur mandir and informed the police present there. Complainant further disclosed that A-6 Sant Ram was the person who was named by him as “Pramod”. 4. On this statement of the complainant Ram Achal

Tiwari, the IO got the case U/s. 302/397/506/34 IPC registered by sending a rukka at about 3 PM. 5. Earlier to getting the case registered on 20.03.1999,

at about 2 PM, SI J.S. Joon was on patrolling duty in the area of Police Post along with HC Satish Chand and Ct. Kishan

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Lal. He got the information on wireless set from Addl. SHO to reach at Jai Mata Di farm house. Accordingly, he reached there and came to know about the murder of deceased Kunjum Budhiraja. Inspector Jagdish Meena posted as Addl. SHO, PS Mehrauli was deputed at Chattarpur Mandir for Navratra arrangement on that day. Most of the staff was deputed with him. He was present at the main gate of

Chattarpur mandir. At 01.15 PM, Ram Achal Tiwari came to him and told him that Kunjum madam had been murdered and he should come immediately. Inspector Jagdish Meena along with staff and Ram Achal Tiwari reached at the spot and found one Toyota car No. DL-3CB-9399 parked there. The front side tyre of the car was lying punctured. Ram Achal Tiwari took the police inside the farm house. There, the dead body of deceased Kunjum Budhiraja was found lying at a distance of about four ft. inside from main gate of the kothi. There were blood stains and cut marks on the head, neck and

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chest of the deceased. 6. After recording statement of the complainant Ram

Achal Tiwari, Inspector Jagdish Meena inspected the spot. He lifted blood from the spot. He also lifted one chappal which was in the feet of the deceased. He also seized blood stained shirt of the complainant and prepared necessary seizure memo. Crime team and dog squad were summoned. Scene of occurrence was got photographed. IO prepared rough site plan of the place of incident. IO recorded statements of the concerned witnesses. He also recorded supplementary statement of complainant Ram Achal Tiwari. 7. Inspector Jagdish Meena gave a slip on which

telephone No.7166786 was written for verification to SI J.S. Joon. It was recovered from the spot where A-5 to A-7 used to live. SI J.S. Joon took address of owner of that phone from 197 and found that the said telephone was installed at 21/24, Mangolpuri, Delhi. On reaching there, SI J.S. Joon found one

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Aslam residing there. From him, he came to know that Rakesh (not arrested) used to reside there and was residing at B-16, Staff Quarters, Fire Station, Moti Nagar. However, accused Rakesh could not be traced there after and has remained untraced till date. 8. Further case of the prosecution is that IO prepared On return at the PS, IO got

inquest papers at the spot.

deposited seized articles in the malkhana. Body of deceased Kunjum was got sent for post mortem. On 21.03.1999, post mortem on the dead body of the deceased Kunjum was got conducted. After the post mortem, the dead body was

handed over to her relations.
Apprehension of A-1

9.

On the intervening night of 22/23.03.99, police of

crime branch, Ahmedabad City got information that nephew of A-4 namely Surender Mishra (A-1) was staying in room

No.50 at Kapadia Guest House and he had committed murder

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of deceased Kunjum. On that information, Inspector Tarun Kumar Amrit Lal reached there at about 1 or 2 AM. From there, at room no.50, A-1 was apprehended. A-1 disclosed his name as Raj Kumar Bhatia. A-1 had stayed in the said guest house under a fictitious name of Raj Kumar Bhatia. A-1 was arrested and the room in which he was staying was searched. Some articles belonging to A-1 were seized by preparing panchanama. A-1 was brought to the PS and was interrogated. His disclosure statement was recorded there. In the disclosure statement, A-1 disclosed his mobile number as 9810114857. Thereafter, A-1 was produced before the courts at Ahmedabad on 23.03.1999. 10. On getting intimation from Ahmedabad about

apprehension of A-1 by crime branch, Inspector Jagdish Meena along with SI Vijay Kumar reached there. He obtained the original disclosure statement of A-1. After seeking

remand for four days from the courts at Ahmedabad, A-1 was

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brought to Delhi.

IO recorded the statements of the

concerned witnesses there and seized photocopy of register of the guest house where A-1 had stayed. At Delhi, A-1 was interrogated and his disclosure statement was recorded. He disclosed the mobile telephone number of A-2 and that of his own mobile number. A-1 was got medically examined. He gave graphic detail about his involvement in the commission of offence. He also disclosed complicity of other accused persons. 11. On 25.03.1999, IO seized three letters handed over

to him by Pawan Budhiraja, brother of the deceased, and the IO prepared the necessary memos.
Apprehension of A-2 and A-3 12.

On 25.03.1999, A-2 and A-3 were apprehended at

B-12, Suraj Mal Vihar. They were arrested and their disclosure statements were recorded. In her disclosure

statement, A-2 disclosed her mobile number as 9811024145

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and that of A-1 as 9810114857. Mobile telephone having SIM No.9811024145 was recovered from A-2 and necessary seizure memo was prepared.
Apprehension of A-6

13.

On 10.04.1999, efforts were made to apprehend A-

6 (Sant Ram) at village Sukha Ka Tiwari but he could not be traced there. On 12.04.1999, SI J.S. Joon came to know that A-6 was detained in jail in case FIR No.55/99, U/s. 364 IPC, PS Sangrampur, Uttar Pradesh. On 17.04.1999, he got production warrant of A-6 issued from the Court of Sh. V.K. Khanna, Ld. Metropolitan Magistrate. On 26.04.1999, A-6 was arrested and his police remand for seven days was taken. A-6 was interrogated and his disclosure statement was recorded. A-6 led the police party to the place of incident and the IO prepared necessary pointing out memo.
Apprehension of A-5

14.

On 09.05.1999, accused Hem Chand (A-5) was

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apprehended near park of “P” Block, Mangolpuri, Delhi. A-5 was interrogated and his disclosure statement was recorded. On 10.05.1999, five days police custody remand of A-5 was taken. He was taken to Meerut in search of co accused Babu at Saidpur but he could not be traced. Further case of the prosecution is that in the supplementary disclosure statement made by A-5 on 13.05.1999, he disclosed to get recover the golden chain which was removed by him from the person of the deceased from his house at P-1/130, Mangolpuri. A-5, thereafter, got recovered the chain from the almirah lying on the first floor on his house. IO prepared the necessary seizure memo to that effect.
Apprehension of A-7

15.

On return to Delhi on 11.05.1999, SI J.S. Joon

came to know about apprehension of A-7. He along with A-5 reached at Tis Hazari in the Court of Sh. R.P. Singh. There A-5 identified A-7 as one of his co accused in this case. A-7

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was interrogated with the permission of the Court and was arrested in this case. His police custody remand for three days was taken. He was interrogated and his disclosure statement was recorded.
Apprehension of A-4

16.

A-4 was already in judicial custody prior to the date

of incident in some other case. Finding his involvement in this case, on 06.06.96, IO got issued his production warrant in court in this case by moving an application for that purpose. On 07.06.1999, A-4 was arrested with the permission of the court and his police custody remand was taken. He was interrogated and his disclosure statement was recorded. Specimen signatures of A-4 were also taken. Subsequently, the IO got sent the specimen signatures along with the questioned writing to FSL, Malviya Nagar and collected FSL report subsequently.

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Further investigation

17.

During investigation, IO moved an application for

getting TIP proceedings of the gold chain conducted. The TIP proceedings were conducted by Sh. Rajnish Kumar, Ld. Metropolitan Magistrate on 29.05.1999. PW Rani Budhiraja mother of the deceased participated in TIP proceedings and identified the said chain. 18. During further investigation on 25.05.1999, IO

seized various applications moved by A-1, A-2 and A-3 to have meetings with A-4 in lock-ups and Tihar Jail. 19. 20. On 30.05.1999, IO got prepared scaled map. During investigation, IO seized the copy of the

agreement executed between A-4 and one Vikram Singh, security officer. Print-outs of mobile telephone

No.9811024145 pertaining to A-2 and mobile telephone No.9811155439 pertaining to witness Vikram Singh were obtained. Print-out relating to mobile No.9810114857

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pertaining to A-1 were also taken from Bharti Cellular. During further investigation, the IO recorded the statements of the concerned witnesses at different stages of investigation. After completion of investigation, the police of PS Mehrauli filed challan against A-1 to A-7 in the Court of Ld. M.M. for the commission of aforesaid offences. 21. Accused Subhash @ Babu, Davinder @ Balle,

Ganga Singh @ Guddu and Rakesh were shown in column No.2 as they could not be arrested during investigation. 22. After complying with the provisions of section

207/208 CrPC, the Ld. M.M. committed the case qua A-1 to A-7 before the court of sessions.
Charge

23.

After hearing the Ld. Special PP for the State and

the Ld. defence counsels for all the contesting accused persons, Charge U/s. 302 read with Section 34 IPC was ordered to be framed against A-5, A-6 and A-7. Separate

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charge U/s.120B read with Section 302 IPC was ordered to be framed against A-1 to A-7 by my ld. predecessor vide

detailed order dated 25.09.1999. All accused persons pleaded not guilty to the charges and claimed trial. Revision against charge filed by some accused herein before the Hon'ble High Court resulted in its dismissal.
Prosecution Evidence

24.

To bring home charge against accused persons,

prosecution examined in all 37 witnesses namely PW1 Ms. Meena Bhatia, PW2 Ct. Brijbir Singh, PW3 HC Joseph PA, PW4 Mahinder Parshad, PW5 Amara Bhai K. Patel, PW6 SI Sunil Lamba, PW7 HC Parkash Singh, PW8 SI Madan Pal, PW9 Deepak Gupta, PW10 Sh. Rajnish Kumar Gupta, PW11 Capt. Rakesh Bakshi, PW12 Tarun Kumar Amritlal, PW13 Mahinder Singh, PW14 SI Mohar Singh, PW15 Sunil Kumar @ Sanjay, PW16 Ram Achal Tiwari, PW17 Hari Chand, PW18 Pandit Deepak Sharma, PW19 Dilbag Singh, PW20 Ct.

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Garib Chand, PW21 L/Ct. Neelam, PW22 HC Satish Chand, PW23 HC Ramesh Kumar, PW24 SI Kanwar Lal, PW25 V.N. Dixit SI (Retd.), PW26 Ct. Khushi Ram, PW27 Mrs. Rani Budhiraja, PW28 Pawan Budhiraja, PW29 L/Ct. Milyani, PW30 Vikram Singh, PW31 Dr. T. Millo, PW32 SI Vikay Kumar, PW33 HC Balbir Singh, PW34 Deepa Verma, PW35 SI J.S. Joon, PW36 Inspector Jagdish Meena and PW37 Inspector Surender Sharma.
Statements of accused persons

25.

Statements of the accused persons were recorded

U/s. 313 Cr.P.C. Incriminating evidence appearing against them was put to them to explain. Accused persons denied their involvement in the commission of the offence. Their plea is that they have been falsely implicated in this case. 26. Plea of A-1 is that he never met A-4 in jail though

he had moved applications to meet him. He did not know deceased Kunjum, A-2 and A-3. He never visited the farm

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house. Police had taken him to Ahmedabad. Police got his photograph published in the newspaper. He did not stay in any guest house at Ahmedabad. He did not make any disclosure statement. 27. A-2 has pleaded that she never looked after the

property of A-4. She used to meet A-4 while he was in custody to seek his instructions to pursue his cases. She did not know Pawan Budhiraja. She did not have any mobile number 9811024145. 28. Plea of A-3 is that she never made any disclosure

statement. 29. Plea of A-4 is that he had no relation with his elder

brothers. He was not aware if A-1 was his nephew. He was arrested in some other case in October, 1998. Amrit Budhiraja, father of deceased Kunjum, was having his power of attorney and he was looking after all his properties. He never met A-1, A-2 and A-3 in jail. During his custody, he was

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forced to put signatures on many blank papers by the police. 30. Further defence of A-4 is that he and deceased

Kunjum wanted to marry each other with the consent of her parents. Pawan Budhiraja brother of the deceased used to come to meet him in jail. None except the family members of the deceased Kunjum; caretaker Ram Achal Tiwari and Dilbag were authorized to enter the farm house. Kunjum and her father were already having keys of the farm house and other places belonging to him. No security guards were employed by him from Vikram at his instance at Jai Mata Di farm house. 31. Further stand of A-4 is that he never made any

disclosure statement to the police. He has been falsely implicated due to political vendetta and to grab his property and also to tarnish his image in the society. He has been falsely implicated due to conspiracy hatched by his political opponents to grab his property. They hatched conspiracy and

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got him implicated in the murder of his fiancy Kunjum after 2 ½ months of the incident. He is innocent. 32. Plea of A-5 is that he did not go to the farm house

at any time nor ever resided there. He was wrongly identified by the PWs at the instance of the police. The case property has been planted upon him. 33. Case of A-6 U/s. 313 Cr.P.C. is that he was

arrested by the UP police. He did not make any disclosure statement. After the expiry of his wife, he started residing at his village Sukha Ka Tiwari, Amethi. During the cutting of crops, there was a quarrel with his neighbourer due to which he has been implicated and arrested. None of the co accused or the victim was known to him. 34. Plea of A-7 is that he is innocent. He did not make

any disclosure statement.
Defence

35.

A-4

examined DW1 Naveen Budhiraja in his

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defence. None other accused preferred to examine any witness in their defence.
Argument for State

36.

I have heard at length Ld. Special PP for the State

Sh. S.K. Saxena and Ld. defence counsels for the accused persons. 37. Contention of Ld. Special PP for the State is that

the prosecution has established its case against all the accused persons beyond reasonable doubt. PW16 Ram Achal Tiwari has not supported the prosecution due to ulterior motive as he has been won over by the accused persons. Murder of deceased Kunjum took place at the farm house owned by A-4. The prosecution has established that A-1 to A4 hatched conspiracy to eliminate deceased Kunjum as she had started raising more and more demands. A-1 to A-4 were party to the conspiracy to eliminate the deceased. A-4 forced the deceased Kunjum to come to the farm house on the

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pretext of performing pooja in the temple therein in pursuance of the criminal conspiracy to enable A-5 to A-7 along with their associates to execute the plan to commit her murder. The testimony of security guards namely PW15 Sunil Kumar and PW17 Hari Chand categorically proves the involvement of A-5 to A-7 along with their associates in committing murder of deceased Kunjum. There is nothing to disbelieve their positive testimonies. Involvement of A-1 in the commission of offence is apparent as after the occurrence, A-1 fled to Ahmedabad and stayed in a guest house under fictitious name of Raj Kumar Bhatia. He was arrested by the crime branch Police, Ahmedabad and his disclosure statement was recorded in which he categorically confessed about the conspiracy in which deceased Kunjum was got murdered through the hired assassins A-5 to A-7. The print outs of the mobile phones of PW30 Vikram, A-1 and A-2 all reveal that they all remained in constant touch even after the commission of the murder. The

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letters written by the deceased on record also show that the keys of the farm house were not with her and A-1 to A-3 used to deny keys of the farm house to her. They also did not allow her brother Pawan Budhiraja to meet A-4 in jail and used to mark their presence in the register before his arrival. They had also threatened to kill Pawan Budhiraja. It is further argued that on the day of incident, A-1 to A-3 had visited the farm house prior to the arrival of the deceased and had conversation with A-5 to A-7 and their associates. 38. Further argument of Ld. Special PP for the State is

that golden chain belonging to the deceased was got recovered by A-5 and the same was got identified during TIP proceedings. The prosecution has established on record facts from which inference can safely be drawn that A-1 to A-4 hatched criminal conspiracy to commit murder of the deceased Kunjum. No direct evidence to prove conspiracy is possible.

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Suresh Chandra Bahri Vs. State of Bihar, 1994 Cr.L.J. (SC) 3271;

Ajay Aggrawal Vs. Union of India & Ors. AIR 1993 (SC) 1637;
State of Maharashtra Vs. Som Nath Thapa, 1996 Cr.L.J. (SC) 2448;

State of Tamil Nadu Vs. Nalini & Ors. 1999 Cr.L.J. (SC) 3126;
Ferozuddin Bashruddin Vs. State of Kerela (V) 2001 SLT (SC) 880;

State of Punjab Vs. Jagir Singh & Ors. AIR 1973 (SC) 2407; Inder Singh Vs. State (Delhi 1091;
Anthony D'Souza Vs. State of Karnataka JT 2002 (9) (SC) 257 and

Admn.) AIR 1978 (SC)

State (NCT of Delhi) Vs. Navjot Sandhu AIR 2005 (SC) 3820.

Arguments for accused persons

39.

On the other hand, Ld.counsel for A-1 has

controverted the arguments and has vehemently argued that A1 has been falsely roped in this case being the nephew of A4. He was arrested from Delhi and was taken to Ahmedabad

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where his signatures were got on blank papers. A-1 never stayed at any guest house. He was not going to be benefited by committing murder of the deceased. He was not having keys of the farm house. There are material discrepancies in the testimony of the witnesses regarding involvement of A-1. Nothing was got recovered at the instance of A-1. No TIP was conducted for his identification. He did not own any mobile. He did not use to visit the farm house. 40. Ld. counsel for A-2 and A-3 has strenuously argued

that there is not an iota of evidence against any of these two accused persons showing their involvement in the incident. They have been falsely implicated in this case. Both A-2 and A-3 were like sisters of A-4 and they used to tie “rakhi” to him. Material prosecution witness Ram Achal Tiwari has not supported the prosecution at all. These accused persons were arrested after many days without any evidence whatsoever against them. Prosecution witnesses examined

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by the prosecution have made improvements in their statements before the court. A-2 and A-3 were workers in the political party floated by A-4. The prosecution has failed to prove if A-2 and A-3 owned any mobile phones. They were party workers only and in that capacity used to meet A-4 to assist him in his cases. A-2 had never declared to marry A-4. 41. Ld. defence counsel for A-4 has vehemently

contended that there is no evidence, whatsoever, on record to show if A-4 hatched criminal conspiracy to commit murder of the deceased. There is no evidence on record to show if the deceased had started harassing A-4 by making inflated demands prompting him to eliminate her. The letters rather written by the deceased to A-4 during his detention in jail, show love and affection of the deceased for him. Deceased used to worship A-4 and there was no occasion for A-4 to eliminate her. A-4 had already given house at C-31, Hauz Khas to the deceased. He had also given two cars to her. So,

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there was no occasion for the deceased to be more demanding. There is no evidence on record to show if A-5 to A-7 had ever any interaction with A-4 in jail to enter into any criminal conspiracy. 42. A-4 was arrested in this case after about 2½

months of the incident. Nothing incriminating was recovered at his instance. A-4 after the death of the deceased performed last rites with the permission of the court and filled sindhoor in her mang to confer her a status of a wife. Parents of the deceased never suspected involvement of A-4 in the incident. No security guard was got deployed by A-4 at the farm house. 43. It is further argued that there are various omissions

and contradictions in the prosecution case which make it unsafe to convict A-4. Material prosecution witnesses including PW16 Ram Achal Tiwari and PW19 Dilbagh did not at all support the prosecution. IO failed to prove on record the brief facts prepared by him at the time of inquest proceedings.

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Names of the assailants did not find mention in brief facts prepared by him. 44. Ld. counsel for A-5 to A-7 has submitted that there

is no evidence to show if all these accused persons were residing at the farm house or they participated in the commission of the offence. Material prosecution witnesses Ram Achal Tiwari, Dilbagh Singh and Pandit Chawi did not support the prosecution on this aspect. All these accused persons had no motive to commit murder of the deceased. No weapon of offence was recovered from their possession. Nothing incriminating was recovered at the time of their apprehension. The place and time of arrest of these accused persons has been fabricated by the prosecution. There are vital discrepancies in the statements of the prosecution witnesses regarding presence and arrest of these accused persons. These accused persons never met A-4 in jail to hatch conspiracy. The golden chain has been planted upon

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A-5. PW16 Ram Achal Tiwari, the star witness of the prosecution has not testified if any of these accused persons was residing at the farm house.
Authorities 45.

Ld. defence counsels for the accused persons have

relied upon the authorities reported in :Ramreddy Rajesh Khanna and another Vs. State of A.P. AIR 2006 SC 1656; Ashish Batham Vs. State of M.P. AIR 2002 SC 3206; Sanju Vs. State of Kerela AIR 2001 SC 175; State of Himachal Pradesh Vs. Jeet Singh AIR 1999 SC 1293; Arun Kumar Vs. State 1996 Indlaw Del 126; Vijay Kumar and another Vs. State 1995 Indlaw Del 10641; Surrinder Pal Singh Vs. Delhi Administration AIR 1993 SC 1723; S.D. Soni Vs. State of Gujrat AIR 1991 SC 917; Vinod Kumar Vaidh and another Vs. State 1992 Indlaw Del 11; Sukhdev Singh Vs. State (Delhi Admn) 1992 Indlaw Del 427; Param Hans Yadav and Sadanand Tripathi Vs. State of

30 Bihar AIR 1987 SC 955;

St. Vs Surinder Mishra etc.

Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622; Shri Ram Vs. State of UP AIR 1975 SC 175; Kali Ram Vs. State of Himachal Pradesh 1973 2 Scc 808 and Deoman Upadhyaya Vs. State of UP AIR 1960 SC 1125. Findings 46.

I have considered the arguments of Ld. Special PP

for the State and Ld. defence counsels for the accused persons addressed at bar. I have minutely scanned the entire case before me. 47. under :
Homicidal Death of deceased Kunjum i)

The case of the prosecution is being discussed as

Ld. defence counsels for the accused persons have

not disputed homicidal death of deceased Kunjum. Their only plea is that the accused persons have nothing to do with the homicidal death of deceased Kunjum.

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ii)

Material testimony on this aspect is that of PW31

Dr. T. Millo who proved the post mortem report Ex.PW31/A prepared by Dr. Lal Rozama. He has also proved the document Ex.PW31/B i.e. endorsement of Dr. Rozama for conducting post mortem. This witness was not cross examined by Ld. defence counsel. So, the testimony of this witness regarding conducting of post mortem on the dead body of the deceased Kunjum has remained unchallenged and unrebutted. Ld. defence counsels for the accused persons did not challenge the contents of the post mortem report and the cause of death opined by the expert witness. No other cause of death of the deceased was suggested by Ld. defence counsels. iii) Perusal of post mortem report Ex.PW13/A

demonstrates that number of injuries were caused on the vital organs of the deceased. In the post mortem report, 13

injuries of various dimensions are stated to have been caused

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to the deceased.

All these injuries were opined fresh in

nature. These injuries were further opined antemortem in nature. Death was opined due to cumulative effect of the injuries mentioned in the post mortem report. It was further opined that injuries No.5, 10 and 11 could cause death individually in the ordinary course of nature. These injuries were opined to have been caused by sharp-edged stabbing weapon. iv) The injuries mentioned in the post mortem report

have not been denied in cross of this witness. Deceased was hail and hearty prior to entering inside the kothi. Number of repeated injuries with sharp weapons on the person of an unarmed lady fully proves intention of the assailants to see her dead in every eventuality. Deceased Kunjum died at the spot. Infliction of so many injuries repeatedly at various body organs of the deceased shows that the assailants were bent upon to kill the deceased. Definitely, it was handy-work of

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more than one assailant as argued by Ld. Special PP for the State. v) Other prosecution witnesses including PW15 Sunil

Kumar, PW16 Ram Achal Tiwari and PW17 Hari Chand have all testified about the circumstances in which the death of the deceased took place. So, in my view, it is a case of culpable homicide and only object of the assailants was to put an end to the life of the deceased under all probability.
Involvement of A-5 to A-7

48.

To prove its case, the prosecution relied upon the

testimony of an eye witness PW16 Ram Achal Tiwari to establish involvement of A-5 and A-7 in the commission of incident. However, at the outset, it may be mentioned that PW16 Ram Achal Tiwari did not at all supported the prosecution on this aspect. He categorically claimed that he was not present at the time of incident. He did not attribute any role to A-5 to A-7 in his deposition before the court. So,

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the prosecution has failed to produce eye witness account of the incident. No other eye witness who had seen the incident was relied upon by the prosecution. 49. However, the prosecution has relied upon

circumstantial evidence to prove its case against A-5 to A-7. 50. Case of the prosecution is that A-5 to A-7 along

with their associates Rakesh (since PO), Davinder @ Balle, Ganga Singh @ Guddu and Subhash Babu (not arrested) committed murder of deceased Kunjum in pursuance of criminal conspiracy hatched among all the accused persons. Ld. defence counsels for A-5 to A-7 has refuted this allegation of the prosecution and has vehemently argued that none of these accused persons ever resided at Jai Mata Di farm house and none of them was present at the time of incident. The circumstances to connect A-5 to A-7 with commission of the offence are taken up as under :A) Last seen

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i)

Case of the prosecution is that A-5 to A-7 were last

seen with deceased at the time of occurrence. ii) Material testimony showing involvement of A-5 to A-

7 along with their associate Rakesh (PO) in the commission of the offence is that of PW15 Sunil Kumar @ Sanjay. In his deposition before the court, this witness claimed that in March 1999, he was working as security guard in a firm in which Vikram Singh was the director. He was given duty as security guard at Jai Mata Di farm house in March 1999. Besides him, there were four other security guards namely Davinder Singh, Nageshwar Singh, Het Ram and Hari Chand (PW17). Mr. Tiwari was Incharge of Jai Mata Di farm house. Besides Mr. Tiwari, seven persons used to stay at Jai Mata Di farm house. They were Hem Chand @ Nani (A-5), Rakesh (PO), Sant Ram (A-6), Ramesh (A-7) and three more whose names he did not remember. The witness further deposed that sometimes A-1 and two ladies (A-2 and A-3) used to visit Jai

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Mata Di farm house. A-1 to A-3 used to visit farm house very often. iii) Further deposition of the witness is that he was on

duty at Jai Mata Di farm house about a week prior to 20.03.1999. On that day, at about 8 AM, A-1 came at the farm house. He met A-5 to A-7 etc, in the farm house and stayed there for about half an hour. Thereafter, at about 11.30 AM, A-2 and A-3 along with one pandit came there and met Mr. Tiwari. They told Mr. Tiwari to get mandir cleaned. Thereafter, both of them proceeded towards the gate where A-5 to A-7 were standing and met them. After sometime, A-2 and A-3 came back and told Mr. Tiwari that they were going to purchase samagri for pooja and would come after a short while but they did not come back. iv) Further deposition of the witness is that after about

half an hour, one lady whose name he came to know later on as Kunjum came in the farm house in a black car. One of the

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tyre of front wheel of the car got punctured. He had seen that lady Kunjum for the first time on that day. That lady i.e. Kunjum told Mr. Tiwari to find out some mechanic as her front car tyre had got punctured. Mr. Tiwari brought one mechanic. Since, mechanic was having no “pana”, he left. Thereafter, deceased Kunjum took out keys from her purse and gave it to Mr. Tiwari and told him that the “kothi” had to be cleaned and he should accompany her. Thereafter, they went inside the kothi. v) The witness further deposed that within five to

seven minutes of Kunjum and Tiwari entering inside the kothi, A-5 to A-7 along with Rakesh (PO) also followed them inside the kothi. After 15 / 20 minutes, all the four persons i.e. A-5 to A-7 and Rakesh (PO) came out and told three others to go to market. Thereafter, all the seven persons left for the market. vi) The witness further deposed that after 5 / 7

minutes, Mr. Tiwari came and told them that they should take

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care of Madam (Kunjum) as all the seven had stabbed Madam Kunjum and had run away. Mr. Tiwari further told them to take care of Kunjum as he was going to PS to inform the police. The witness further disclosed that thereafter they went inside the kothi and saw that Madam Kunjum was blood stained. After sometime, police along with Mr. Tiwari reached there. vii) In the cross examination on behalf of A-4, the

witness stated that Mr. Vikram had brought him to Jai Mata Di farm house where he was given duty. He was not having any appointment letter with him. He was having no document to show that he was working with Mr. Vikram in his security service. It was his first posting at Jai Mata Di farm house with Mr. Vikram. His bio-data was noted down by Mr. Vikram. He knew him earlier since the time he was working for Jain Security Services. The witness further stated that Jai Mata Di farm house was at a distance of half Km from PS Mehrauli.

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He had not gone to PS Mehrauli. Police official with three star had asked him as to how murder took place and he narrated all the facts which were seen by him. PW Vikram came at the spot while he was present. There were two gates at Jai Mata Di farm house. One gate used to remain open and the other closed. He used to stay at Jai Mata Di farm house after duty hours. There was office near the gate and in the same office, they used to reside. They used to cook their meals there. This witness fairly admitted that he had not received payment for doing this duty at Jai Mata Di farm house. The witness denied that he was introduced as a false witness or that he never worked at Jai Mata Di farm house as security guard. viii) In the cross examination on behalf of A-2 and A-3,

this witness was confronted with the statement Ex.PW15/DA made by him to the police on some facts which were not made by him to the police but deposed before the court. ix) On behalf of A-5 to A-7, this witness was tested in

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the cross examination at length. In the cross examination, again this witness was confronted on some facts with his statement Ex.PW15/DA. The witness explained that other security guards Dhirender and Nageshwar were on duty with him at that time. Mr. Vikram had taken him to Jai Mata Di farm house for deploying him and had explained to him the duties which he was to perform. He was mainly deputed at the gate. Dilbagh and Pandey also used to reside there besides seven persons mentioned by him above and Ram Achal Tiwari. No advance information was given to him regarding arrival of deceased Kunjum. A-5 to A-7 were known to him by face. He could identify A-5 by face and by name. Ram Achal Tiwari was Manager. A-5 to A-7 used to come in and at times, used to go out from the farm house. They used to remain inside their room mostly. The witness further admitted that A-5 and other servants did not use to talk to him and other guards. x) The witness further stated that deceased Kunjum

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came to the farm house at about 12.30 PM. The gate was opened by security guard Dhirender when Kunjum came. He was also present there. They allowed Kunjum after Ram Achal Tiwari identified her by opening the gate. Deceased took the car upto mandir, parked her car there and from there, she proceeded on foot towards kothi. The witness denied the suggestion of Ld. defence counsel that Kunjum had taken her car upto porch as per instruction of Tiwari. The witness further denied the suggestion that keys were not handed over by Kunjum to Tiwari or that kothi was already open or cleaned before Kunjum reached there. xi) The witness denied the suggestion that he had

never gone to the farm house or had not worked at any time there. The witness further denied the suggestion of the Ld. defence counsel that when Ram Achal Tiwari had gone to call mechanic at about 12 noon, some persons got entry saying that they wanted to meet Ram Achal Tiwari and Dilbagh or

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that after entering, one of them took all the guards on the point of gun and those remaining unknown persons went inside the kothi to commit robbery or that at that time, Kunjum was inside the kothi for taking rest or that when she tried to intervene and raised alarm, the unknown robbers killed her and ran away. The witness denied the suggestion that Ram Achal Tiwari came back at about 12.30 PM and found Kunjum lying dead inside the kothi. The witness denied the suggestion that A-5 to A-7 along with Rakesh never resided at the kothi or that he had never seen them prior to their arrest or that all these accused persons were shown to him by the police after their arrest. xii) In the cross examination on behalf of A-1, the

witness stated that no list was supplied by Mr. Vikram as to who were the persons who were allowed to go inside the kothi. Mr. Tiwari had not supplied him the photos of the

persons who were not allowed to enter inside the farm house.

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Dhirender was Incharge of the security guards. Vikram used to make entries regarding the presence of security guards. Vikram was not coming daily occasionally at the farm house. xiii) Overall testimony of this witness reveals that he has and he used to come

asserted himself along with other security guards including PW17 Hari Ram to be present at the spot on the day of incident. The accused persons have challenged employment of this witness as security guard at Jai Mata Di farm house at any time and have argued that this witness has been falsely introduced by the police. xiv) Scanning the testimonies of the prosecution

witnesses on this aspect, I find no substance in the contention of the Ld. defence counsels that this witness along with PW17 Hari Chand was not employed by PW30 Vikram Singh as security guard at Jai Mata Di farm house. xv) This witness in his testimony categorically asserted

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himself to have been deputed as security guard for the last about one week prior to the incident. Earlier this witness was working as security guard with Jain Securities at Rohini from 1998 till January 1999 as disclosed by him in the cross examination of A-4. This witness gave graphic detail as to how and under what circumstances deceased Kunjum happened to reach at Jai Mata Di farm house and how and under what circumstances her murder took place. This witness identified A-5 to A-7 before the court. He also

asserted PW16 Ram Achal Tiwari to be residing there and taking care of the farm house. He also named Dilbagh residing in the farm house. Had this witness been not present at the spot working as security guard, he could not have

given so detailed sequence of the events even on those facts which are not in controversy. Facts regarding tyre of the car of the deceased to have got punctured, calling of mechanic by Ram Achal Tiwari, his inability to get the puncture set, etc are

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even deposed by PW16 Ram Achal Tiwari

who has not

supported the prosecution on material facts. No motive was imputed to this witness for falsely claiming his presence at the spot as security guard on the day of incident. Nothing has come on record to show if this witness was having any strained relations / enmity with any of the accused persons to make false deposition against them. This witness was also not related to the family members of the deceased to support them falsely. No evidence in defence was adduced by the accused persons to show if this witness was never employed as security guard at the farm house. xvi) Suggestion put by Ld. defence counsels for A-5 to

A-7 to this witness in the cross examination that some robbers entered inside the farm house and took all the guards on the point of gun shows that the guards were posted at farm house. Ld. defence counsels for A-5 to A-7 did not disclose names of the guards allegedly taken hostage on the point of

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gun. None of the accused persons in the cross examination suggested to this witness if there was no security guard employed at Jai Mata Di farm house. None of the accused persons suggested name of any other security guard appointed by any of the accused persons there to be present at the spot at the time of incident. xvii) PW16 Ram Achal Tiwari did not support the

prosecution on material aspects. Nevertheless, he disclosed that he had kept two security guards for his security after he received threats. He further deposed that he, Dilbagh and two security officials used to live at Jai Mata Di farm house on 20.03.1999. However, this witness did not specify the names of two security officials who were employed by him for his private security. He did not explain as to who used to make payment of salaries, etc to those two private guards. He also did not clarify if any of those alleged security guards was on duty at Jai Mata Di farm house on the day of incident and if

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so, at which particular place they were on duty. It shows that version given by PW16 Ram Achal Tiwari is apparently false and no such private security guards was employed by him and for that reason, he did not give names of these alleged private security guards. He did not controvert the specific assertion of PW15 Sunil Kumar to be present at the spot on the day of occurrence. xviii) Testimony of PW15 Sunil Kumar has been

corroborated in toto on this aspect by his employer PW30 Vikram Singh. In his deposition before the court, PW30

Vikram Singh also supported the prosecution and deposed that he was running security agency in the name and style of Wash Tower Security Detectives situated at A-1/19,Sector-5, Rohini. He had employed security guards at Jai Mata Di farm house w.e.f. 20/2/99 on the request of the A-4. An agreement dt 1.3.99 was executed with the permission of the court. The same was signed by A-4 and it was got notarized. Photocopy

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of the said agreement is Ex PW30/2. The witness identified signature of A-4 on the original at point “B”. This witness further named Hari Chand, Het Ram, Nageshwar Singh,

Dhirender Singh and Sunil Singh to be the security guards employed in the month of March-1999 from his security agency at Jai Mata Di farm house. The witness also proved the attendance sheet Ex PW30/1. xix) In the cross examination on behalf of A-4, the

witness stated that he had informed the local police at Mehrauli about the persons employed by him at the farm house through his supervisor Dubey and the police had told him that they would verify the names and addresses of those persons. The witness explained that agreement did not contain the names of the security guards as the guards kept on changing. He further stated that he had received some payment made by Pairokar of A-4. The witness denied the suggestion that no security guard was provided as per

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agreement as he had asked for advance money which was not paid to him. xx) In the cross examination on behalf of A-5 to A-7,

the witness stated that his security agency was registered prior to the date of occurrence. The arrangement at Jai Mata Di farm house was as per agreement with A-4. He used to sign the register maintained at Jai Mata Di farm house after checking the security arrangements. He had seen signature of Dubey supervisor on those registers. The witness denied the suggestion that agreement Ex PW30/2 was got executed inside the jail and it was notarized there. The witness explained that it was notarized on 1.3.99 in the lock-up, Tis Hazari. This witness further stated that oral request was made by A-4 to deploy security guards at Jai Mata Di farm house after attempt of trespass by Sh M K Suba. The witness denied the suggestion that he was only “contacted” by A-1 for arrangement of security guards at Jai Mata Di farm house and

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for that reasons, no payment was made to him in advance and no guards were appointed by him at Jai Mata Di farm house. xxi) The entire testimony of this witness regarding including PW15 Sunil and

employment of security guards

PW17 Hari Chand inspires implicit confidence. It is not disputed that this witness was not running any security agency. Execution of agreement dt 1.3.99 to deploy security guards at Jai Mata Di farm house has not been disputed. A-4 did not deny his signature on the agreement. Only plea of the accused persons is that this agreement was not acted upon for want of payment of advance money claimed by the witness. This explanation of the accused persons does not inspire confidence. No ulterior motive has been imputed to this witness in the cross examination for faking employment of security guards at Jai Mata Di farm house prior to the incident. There is nothing on record to show if this agreement dt 1.3.99

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was not acted upon. This witness has given names of the security guards deputed at the farm house. He has also proved attendance sheet showing their employment there. A4 did not explain as to when this witness had demanded advance money. Since this witness was known to A-4 prior to the occurrence and the agreement dt 1.3.99 was executed, there was nothing for this witness to insist advance payment. A-4 failed to explain as to who else were security guards at Jai Mata Di farm house on the day of incident. Accused persons have given different contradictory versions on this aspect. In the statement recorded U/s.313 Cr.P.C, A-1 denied to have any concern with the security guards at Jai Mata Di farm house. However, suggestion has been put in the cross examination to this witness that agreement Ex PW30/2 dt 1.3.99 was got executed by A-1. A-4 did not explain if A-1 was instrumental in getting this agreement executed. So there is nothing to disbelieve the testimony of this witness regarding

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employment of security guards including PW15 Sunil and PW17 Hari Chand on the relevant dates at Jai Mata Di farm house. xxii) Since this witness was deployed as a security

guard at the relevant time, he is the best person to disclose the sequence of events that took place at Jai Mata Di farm house on the day of incident. This witness was having no ulterior motive to create false evidence for the family members of the deceased with whom he had no nexus whatsoever. This witness was having no prior ill-will against A-5 to A-7 to falsely rope in them in this case. This witness was not going to be benefited by deposing falsely against A-5 to A-7. There are no major discrepancies in the cross of this witness to disbelieve him on the facts deposed by him. xxiii) PW17 Hari Chand another security guard posted at

Jai Mata Di farm house has also supported the prosecution qua involvement of A-5 to A-7 along with Rakesh (PO) and

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has corroborated the version given by PW15 Sunil Kumar in its entirety. xxiv) In his deposition before the court, this witness also

claimed himself to be on duty at Jai Mata Di farm house on the day of incident i.e. 20.03.99. This witness stated that he was deputed on duty by Mr. Vikram at Jai Mata Di farm house. He joined his duty w.e.f. 20.02.99. Mr. Tiwari used to look after the farm house and he used to reside there. The witness further stated that besides Tiwari, he had seen seven persons residing there and they were Nani (A-5), Ramesh, Santan and others whose name he did not remember. He also knew A-1 who used to come at Jai Mata Di farm house. A-2 and A-3 also used to come with A-1. xxv) Regarding the incident, the witness stated that on

20.03.99, there were five security guards at Jai Mata Di farm house. They were Sanjay, Het Ram Chaurasia, Dhirender, Tuglesh Singh. They all used to reside in a room situated on

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the right side of the main gate of the farm house. On 20.03.99, at about 8 AM, A-1 present in the court came at the farm house and met A-5, A-6 and A-7 and stayed there for 15 minutes. Thereafter, A-1 left. At about 11.30 AM, A-2 and A-3 came to the farm house along with one pandit. First of all, A-2 and A-3 talked with A-5 to A-7 and then they told Mr. Tiwari to get mandir cleaned and they were bringing pooja samagri. Thereafter, both A-2 and A-3 left. At about 12 noon, madam Kunjum came there in her maruti car of black colour. The car had got punctured. Deceased Kunjum told Tiwari to bring a mechanic. Accordingly, Tiwari brought a mechanic. Since deceased was not having tools, the mechanic left to fetch tools to repair the punctured tyre. He himself was present on the gate at that time. Three more guards were inside at that time. Deceased Kunjum told Tiwari that she was handing over the keys and he should go inside the kothi. Tiwari proceeded towards kothi followed by deceased Kunjum. A-5 to A-7 also

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entered the kothi. It was about 12.50 noon at that time. After five minutes, A-5 to A-7 met other five associates on the gate of the farm house. Thereafter, they left saying “ghomne chalte hei”. After they left, Mr. Tiwari came at the gate and told that A-5 to A-7 had stabbed Kunjum with knife and they should save her. Mr. Tiwari told them that he was going to make telephone call to the police. Then they all the five security guards went to the spot and saw the dead body of deceased Kunjum. He informed Mr. Vikram about the murder of Kunjum on mobile No.9811155439. He had given the call at about 1 or 1.15 PM. Police reached at the spot and made inquiries from him. xxvi) This witness was cross examined at length by the

Ld. defence counsels for the accused persons. In the cross examination on behalf of A-1, the witness stated that he had joined the duties on 20.02.99 at Jai Mata Di farm house. His duty was for 12 hours. The witness denied the suggestion that

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he was deposing falsely. xxvii) In the cross examination on behalf of A-2 and A-3,

the witness was confronted with his statement made to the police U/s. 161 Cr.P.C. Ex.PW17/DA where some facts deposed in chief were not found mentioned therein. The

witness denied the suggestion that A-2 and A-3 were never seen at the farm house by him. xxviii) On behalf of A-4, the witness stated that he got In

summons at his village to appear before the court.

pursuance of the summons received, he came to the court directly. The witness admitted that police officials of PS Mehrauli had met him outside the court. The witness replied that he had informed Mr. Vikram about the occurrence from a shop at a distance of 25 / 30 paces from the gate of the farm house. He further stated that he had told the police that he could identify the five boys, Sonu (A-3), Dolly (A-2) and Surender (A-1) if produced before him. The witness admitted

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that he was not asked to identify the accused in any TIP proceedings. He further clarified that he was having no friendship or enmity with the accused persons including Dolly (A-2) and Sonu (A-3). The witness denied the suggestion that he was never present as security guard at the farm house or that he was introduced as a false witness. xxix) In the cross examination on behalf of A-5 to A-7,

the witness was confronted with his statement Ex.PW17/DA made to the police on some facts which did not find mention there. The witness stated that after making telephone call to Vikram, he came back to the farm house where the police met him. Vikram had also reached at Jai Mata Di farm house. The witness denied the suggestion that he had never seen A-5 to A-7 at the farm house or that false statement was made by him at the instance of the police. xxx) Scrutinizing the testimony of this witness reveals

that this witness stood the test of cross examination regarding

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involvement of A-5 to A-7 in the incident. This witness was not related to the complainant party to falsely support the case of the prosecution. This witness was having no grudge or enmity with these accused persons prior to the occurrence to falsely rope them in this case. No ulterior motive was suggested to this independent public witness who came all the way from distant village to depose in this case to falsely implicate the accused and assert his presence at the spot at the time of occurrence. xxxi) This witness categorically claimed himself to be on

duty as security guard at the farm house. PW15 Sunil Kumar and PW30 Vikram, his colleague and employer respectively affirmed this fact in their deposition before the court. This witness is not imagined to fake his deployment as security guard on the day of incident. No suggestion was put to this witness in the cross examination if this witness was not present at the spot at the time of occurrence or that he was

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available at some other specific place. This witness gave graphic detail as to how and under what circumstances the incident took place. All this revelation is not possible, had this witness not worked there as security guard. xxxii) Testimonies of PW15 Sunil Kumar and that of

PW17 Hari Chand establish beyond doubt that A-5 to A-7 along with their associates used to reside in the farm house prior to the incident. Both PW15 Sunil Kumar and PW17 Hari Chand have asserted their presence on the day of incident as well as prior to the occurrence at Jai Mata Di farm house. Both PW15 Sunil Kumar and PW17 Hari Chand gave detailed account about these accused persons to be staying at the farm house. They also testified about their meetings with A-1. There is nothing to disbelieve the positive assertion of both these witnesses on this aspect. These accused persons

themselves did not disclose as to where else they used to reside prior to the incident or on the day of incident. They did

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not lead any evidence in defence to claim themselves to be residing at a particular place soon before the incident. They did not explain as to what job or business was being carried out by them. They did not disclose their place of work. They did not examine any family members or anyone from their place of job / work to negative the assertion of these independent public witnesses regarding their staying at Jai Mata Di farm house prior to the incident. Both these witnesses were not having any familiarity with these accused persons. They were not expected to know their names on the day of incident, had these witnesses been not staying at the farm house. xxxiii) PW30 Vikram Singh has also supplemented the

statement of security guards regarding residence of A-5 to A7 at the farm house prior to the day of incident. In his statement before the court, PW30 Vikram deposed that he used to go to check his security guards at Jai Mata Di farm

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house. During his visits there, he used to see those boys namely Rakesh (PO), Nani (A-5), Guddu etc. This witness further identified A-5 to A-7 present before the court to be the persons who were seen by him at Jai Mata Di farm house during his visits there. This witness in the cross examination fairly admitted that he had not stated to the police in his statement Ex.PW30/DA and Ex.PW30/DB if he had seen all these accused persons at the farm house. This witness revealed that he had tried to meet A-4 to inform about unauthorized persons like Nani (A-5), etc staying at Jai Mata Di farm house. xxxiv) There is nothing to discredit the statement of this

independent witness on this aspect. xxxv) PW28 Pawan Budhiraja also established presence

of A-5 to A-7, etc at Jai Mata Di farm house prior to the incident. In his deposition before the court, he also stated that after the arrest of A-4, he had visited Jai Mata Di farm house

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once or twice and had found A-5 to A-7 present there. This witness identified A-5 to A-7 to be the persons seen by him at the farm house during his visits. This close relation of the deceased is not expected to let real culprits to go scot-free and to falsely rope in innocent accused i.e. A-5 to A-7 by claiming their presence at the farm house prior to the incident. xxxvi) Testimonies of all the above witnesses positively

prove that A-5 to A-7 along with accused Rakesh (since PO) and their associates used to reside at Jai Mata Di farm house prior to the incident. They all failed to explain as to who had deployed them there or who used to pay them their salaries. They also failed to explain as to what job was being

performed by them while staying at Jai Mata Di farm house. xxxvii) Both these prosecution witnesses i.e. PW15 Sunil

Kumar and PW17 Hari Chand have categorically deposed that after deceased Kunjum along with caretaker PW16 Ram Achal Tiwari went inside the kothi where the occurrence took

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place, all these accused persons along with their associate Rakesh (since PO) entered inside the kothi. They came out of the kothi after sometime and thereafter they along with their associates went away for the market. Both these witnesses have categorically stated that thereafter PW16 Ram Achal Tiwari came to them and told that these accused persons had stabbed the deceased Kunjum and had run away. Mr. Tiwari told them to take care of Kunjum as he was going to inform the police. xxxviii) There are no material discrepancies in the cross

examination of both these witnesses to disbelieve them. All these accused persons failed to explain the purpose of their stay at Jai Mata Di farm house on the day of incident. They have further failed to explain their purpose to enter inside the kothi where deceased Kunjum had gone along with PW16 Ram Achal Tiwari. xxxix) PW16 Ram Achal Tiwari though has not supported

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the prosecution on some facts, has nevertheless, proved visit of deceased Kunjum at the farm house on 20.03.99. He in his deposition as PW16 admitted statement Ex.PW6/1 bearing his signatures to have been made to the police on 20.03.99. In the cross examination by Ld. Special PP for the State, he admitted that he had informed the police about the murder of deceased Kunjum. First, he tried to inform the police by dialing 100 number from a shop opposite to his farm house. When none responded to it, then he went to Chattarpur Mandir and informed the police officials posted at Chattarpur Mandir. It was about 1 or 1.15 PM. The witness further admitted that when he reached at the farm house, at about 12 PM, deceased Kunjum had already reached there with her car No. DL-3CB-9399. He further admitted that Kunjum had told him that there was puncture in her car and he should arrange for a mechanic and thereafter, he brought some mechanic. He further admitted that the mechanic wanted to bring tools. This

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witness further admitted in the cross examination that after he entered the kothi, he saw Kunjum in murdered condition and found her dead. He further stated that when Kunjum came at the farm house, there was lock on the kothi. The keys of the kothi were with Kunjum and she opened the lock and went inside. xxxx) This testimony of this otherwise hostile witness

lends credence to the testimony of PW15 Sunil Kumar and PW17 Hari Chand regarding presence of deceased Kunjum inside the kothi after the mechanic left to bring tools to repair the puncture of the tyre of the car. Soon thereafter, PW15 Sunil Kumar and PW17 Hari Chand along with their

colleagues came to know about the murder of the deceased. During this period, none else except PW16 Ram Achal Tiwari, A-5 to A-7 along with Rakesh are stated to be inside the kothi at the time of commission of the offence. PW16 Ram Achal Tiwari who could be a suspect was not found involved in the

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commission of the offence as the present case was registered on his statement Ex.PW6/1. He was the person who had gone to inform the police at the earliest. Leaving PW16 Ram Achal Tiwari, it stands established that at the time of incident, no else except A-5 to A-7 along with Rakesh (since PO) were present inside the kothi where the incident took place. Both these independent witnesses specifically testified that they saw A-5 to A-7 entering the kothi before the incident and coming out of kothi soon after the incident. xxxxi) It has further come on record that soon after the

incident of murder, all these accused persons fled away on the pretext for going to market and never returned thereafter to stay there as usual. This conduct of these accused persons is relevant to infer their involvement in the commission of the offence. All these accused persons were last seen with the deceased inside the kothi where the gruesome murder took place and is a vital piece of incriminating circumstance

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appearing against them. Number of security guards were posted at the gate of farm house. There was no question of any other person to have entered inside the kothi without seeking clearance from the security guards to enter inside the kothi where the deceased Kunjum had gone. PW15 Sunil Kumar and PW17 Hari Chand have categorically stated that only those persons were allowed to enter inside the farm

house who were identified at the gate by PW16 Ram Achal Tiwari. So, there was no question of any other person except these accused persons to have entered inside the kothi. xxxxii) Fake attempt has been made by these accused

persons to show that some unknown persons with a motive to commit robbery had entered inside the kothi. This suggestion was put to PW15 Sunil Kumar where it was suggested that when Ram Achal Tiwari had gone to call the mechanic at about 12 noon, some persons got entry inside the farm house saying that they wanted to meet Ram Achal Tiwari and

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Dilbagh or that after entering, one of them took all the guards on the point of gun and those remaining unknown persons went inside the kothi to commit robbery or that at that time, Kunjum was inside the kothi for taking rest or that when she tried to intervene and raised alarm, they killed her and ran away. xxxxiii) This defence has not at all been substantiated by

the accused persons. This defence also does not appeal to mind. In the presence of so many security guards at the gate, no robber could have dared to enter inside the kothi during day time. There is nothing on record to show if any robber was aware about the visit of Kunjum. There is nothing on record to show if any valuable articles were lying inside the kothi to be robbed by the alleged robbers. There is nothing on record to show if any particular article was robbed by any robber. None of the accused persons in their statements and even PW16 Ram Achal Tiwari has not disclosed if any

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material article was robbed from the kothi. Moreover, simply for robbery purpose, the alleged robbers who had allegedly taken all the guards on the point of gun are not expected to be challenged by deceased alone inside the kothi. The robbers having only object to commit robbery at the farm house are not expected to kill an innocent person. The theory put by Ld. defence counsel in the cross examination of the witness holds no water. xxxxiv) No such suggestion was put by the Ld. defence

counsel to PW17 Hari Chand in the cross examination. Even in their statements recorded U/s. 313 Cr.P.C., the accused persons did not stick to this theory of robbery by some unknown robbers. The evidence of both these prosecution witnesses PW15 Sunil and PW17 Hari whose presence at the spot being security guards was quite natural and who had no ulterior motive at all being neutral witnesses, inspires confidence and proves beyond doubt that A-5 to A-7 along

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with Rakesh were last seen with the deceased inside the kothi where the incident took place. xxxxv) The accused persons did not lead any evidence to

establish their plea of alibi. They did not prove their presence at any other place at the time of incident.
Abscondence (A-5 to A-7)

51.

The next reliance of prosecution to connect A-5 to

A-7 is circumstance of abscondence. i) The circumstance of abscondence soon after the

occurrence is also relevant to point an accusing finger against these accused persons. After the commission of the offence, all these accused persons along with their associates went away on the pretext to go to market. Security guards did not stop them at that time as they were not aware about the murder of the deceased Kunjum at that time. security guards came to know regarding the incident only when PW16 Ram Achal Tiwari informed them. When the security guards

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reached inside the kothi after PW16 Ram Achal Tiwari went to inform the police, they came to know deceased Kunjum to have been stabbed. These accused persons who were staying at the farm house soon prior to the occurrence did not again come to the farm house to stay. They rather remained absconded and could be apprehended subsequently on different dates after extensive search for them. Accused persons failed to establish as to where they all stayed soon prior to the incident, on the day of incident and prior to their arrest. Some of the accused persons could not be arrested till date. One associate of the accused Rakesh is already PO in this case. ii) All these accused persons were not known to the

prosecution witnesses and were having no acquaintance with them. Their names find mention in the statement Ex.PW6/1 on the basis of which the present case was registered soon after the commission of the offence. There is no inordinate

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delay in getting the present case registered. These accused persons after the commission of the offence never returned to farm house. Rather, they were apprehended on different dates at different places. A-5 to A-7 failed to explain as to where they all stayed after the occurrence and prior to their respective apprehension in this case. A-6 was arrested by the police of PS Sangrampur, UP on 12.04.99 in crime No.58/99 U/s. 364 IPC, PS Sangrampur, UP. PW25 V.N. Dixit SI at PS Sagrampur testified that A-6 was arrested by him on 12.04.99. At that time, PW25 V.N. Dixit was not aware about involvement of A-6 in the incident. Only on interrogation and in his disclosure statement made before the police, PW25 V.N. Dixit came to know about involvement of A-6 in the commission of the offence. He sent information regarding disclosure made by A-6 to Delhi Police. This witness proved the copy of G.D. No.20 dated 12.04.99 Ex.PW25/A to have been recorded by him regarding the arrest of A-6.

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iii)

This police official of UP police has no axe to grind

to fabricate arrest and disclosure made by him in the said case. Only after coming to know about arrest of A-6 in the said case, IO of this case got production warrant issued for appearance of this accused at Delhi and was subsequently arrested in this case. iv) A-5 could be arrested only on 09.05.99. A-7 was

arrested in this case after his arrest and production before the court of Sh. R.P. Singh, Ld. ASJ at Tis Hazari, Delhi on 11.05.99. v) It reveals that all these accused persons remained

absconded for sufficient long time since the date of commission of the offence. Circumstance of abscondence is an incriminating piece of evidence against A-5 to A-7 to infer their involvement in this case.
Recovery of golden chain

i)

Next circumstance relied upon by the prosecution to

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connect A-5 to A-7 with the commission of the offence is recovery of golden chain belonging to the deceased at the instance of A-5. Case of the prosecution is that A-5 to A-7 along with their associate Rakesh removed golden chain which deceased Kunjum was wearing at the time of occurrence. This chain was got recovered by A-5 during investigation. Ld. counsel for A-5 has denied the

circumstance and has argued that there was no specific mark of identification on the gold chain. No proper TIP of the gold chain was got conducted. The golden chain has been planted upon A-5. ii) It has come on record that at the time of incident,

deceased Kunjum was wearing golden chain Ex.P2. PW27 Rani Budhiraja, mother of the deceased, testified in her deposition before the court that when her daughter Kunjum went to Jai Mata Di farm house on 20.03.99, she was wearing golden chain and diamond tops. She further testified that

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when she reached at the spot and saw the dead body of her daughter at Jai Mata Di farm house, that golden chain was not there on her neck. iii) This witness having no prior enmity or acquaintance

with A-5 is not expected to fake the removal of golden chain from the neck of her deceased daughter on the day of incident. She had not named any accused to have removed the golden chain on the neck of the deceased. This gold chain was recovered during investigation and was identified by the witness during TIP proceedings. Again PW27 Rani Budhiraja deposed that she identified the golden chain which her daughter was wearing on the day of incident before the Ld. MM on 29.05.99. The witness identified golden chain Ex.P2 during her deposition before the court also. iv) In the cross examination, the witness stated that

she had told in her statement to the police that Kunjum was wearing a golden chain but on the dead body the chain was

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not there. She fairly admitted that she had not given the weight and other detail of the golden chain. The witness volunteered to add that she had told them that it was a long chain. The chain was purchased by deceased Kunjum with her some months prior to the occurrence. Chain was mixed with other 6 / 7 chains before the Ld. M.M. and she identified the chain of Kunjum. v) There is nothing to disbelieve the positive assertion

of this witness regarding identification of the golden chain Ex.P2. The witness being mother of the deceased was the proper person to identify the golden chain which the deceased used to wear as she had the opportunity to see the deceased wearing the golden chain. vi) PW10 Sh. Rajnish Kumar Gupta, Ld. M.M. proved

TIP proceedings regarding the golden chain conducted by him. He deposed in his testimony as PW10 that on 17.05.99 application Ex.PW10/A for holding TIP of the case property

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was marked to him by Sh. V.K. Khanna. On 29.05.99, he conducted TIP proceedings pertaining to the golden chain produced by the IO in a sealed cover. IO also produced four other chains of golden colour. The chains produced by the IO were of same colour and were of similar shape as the case property. The case property was mixed with the aforesaid four chains and the witness Rani Budhiraja was called inside the chamber to identify the case property. The witness Rani Budhiraja correctly identified the case property. The detailed TIP proceedings conducted by him are Ex.PW10/2. Certificate regarding the correctness of proceedings given by him is Ex.PW10/2A. vii) Cross examination of this witness on behalf of A-5

to A-7 does not show any irregularity in the conduct of TIP proceedings by the Ld. MM. viii) Material testimony regarding recovery of golden

chain Ex.P2 at the instance of A-5 is that of PW35 SI J.S.

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Joon. In his statement before the court, PW35 SI J.S. Joon deposed that A-5 made disclosure statement on 13.05.99 and disclosed to get recover the chain of the deceased which was taken by him after the murder of the deceased from his house at P-1/130, Mangolpuri, New Delhi. The disclosure statement made by A-5 is Ex.PW22/9. A-5 lead the police party to his house at Mangolpuri and took out the chain from the almirah lying on the first floor of the house and handed over the same to him. Golden chain Ex.P2 was the same which was got recovered by A-5 from his house. Recovery memo of chain was prepared which is Ex.PW22/10. The chain was kept in a pulanda and sealed at the spot. The case property was deposited in the malkhana. ix) In the cross examination, the witness stated that he

had taken five days police remand of A-5. The witness admitted that he had taken A-5 to Saidpur to search other accused Babu. The witness further admitted that no

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incriminating article was recovered from Saidpur. The witness further admitted that A-5 had disclosed to get recover the knife but no knife was recovered from A-5. The witness further stated that house of A-5 was located in a residential area. Family members of A-5 were present at his house. They were his mother and sister. He had requested neighbourers and family members to join the investigation, however, none had agreed to join the investigation. The almirah was not locked when it was opened from where the golden chain was recovered. He had not recorded statement of the mother and sister of A-5. He had not asked Rani Budhiraja the size, weight, design of the golden chain. The witness denied the suggestion that golden chain was planted upon the accused at the instance of relative of Kunjum. x) Overall testimony of this witness reveals that no

material discrepancies have been elicited on this aspect in the cross examination of this witness. No ulterior motive has been

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imputed to this police witness for falsely planting golden chain Ex.P2 on the accused. This witness categorically stated that A-5 got recovered the golden chain from the almirah lying inside his house and at that time, his family members i.e. his mother and sisters were present. A-5 did not bother to

examine his family members or persons from the locality / neighbourhood to controvert the positive testimony of this witness if he had not led the police party to his house and no such golden chain was got recovered by him. This accused was arrested on 09.05.99. In the disclosure statement Ex.PW22/1 made by him at that time, he did not disclose to get recover any golden chain. Only when he was interrogated on 13.05.99, A-5 opted to make another disclosure statement to get recover the golden chain in this case. Had the intention of the IO been to plant the golden chain, he could have done it soon after his arrest on 09.05.99. xi) Statement of PW35 SI J.S. Joon has been

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corroborated on material facts by another witness to recovery of golden chain i.e. PW22 HC Satish Chand. In his statement before the court, he also proved the disclosure statement Ex.PW22/9 made by A-5 on 13.05.99. The disclosure statement was read over to A-5 and he put his signatures over the same after hearing it. Thereafter, A-5 took the police team to his house No.P1/131, Mangolpuri, New Delhi and got recovered the chain from the almirah lying on the first floor. IO prepared the necessary seizure memo Ex.PW22/10. The witness identified golden chain Ex.P2 to be the same which was got recovered by A-5 from his house. xii) In the cross examination on this aspect, the witness

stated that the accused was interrogated for about two or three days. He could not tell the exact time of recovery of chain at the house of the accused. The accused was interrogated in the PS after his remand. There were residential houses near the house of the accused. Parents of

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the accused were also present inside the house. The witness denied the suggestion that no such chain was got recovered by the accused. The witness further stated that at the time of recovery of the chain, Ct. Bijender was also present there. xiii) Entire testimony of this witness also does not show

inherent defects to disbelieve recovery of golden chain at the instance of A-5. Again, this police witness was having no prior enmity to falsely create evidence of recovery of golden chain at the instance of A-5. xiv) A-5 did not examine any witness from his family to

deny that chain Ex.P2 was not got recovered by him from his house. There is nothing to disbelieve the testimony of the police witnesses who are not expected to plant the golden chain from their own pocket. xv) Recovery of golden chain at the instance of A-5 is

an incriminating piece of circumstance to connect him with the commission of the offence. A-5 failed to explain as to how and

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under what circumstances chain Ex.P2 came into his possession. A-5 did not claim ownership of gold chain. There is no denial that this chain Ex.P2 did not belong to the deceased. There is nothing on record to suggest that

deceased Kunjum was not wearing this golden chain at the time of incident. xvi) PW16 Ram Achal Tiwari who had admittedly seen

the deceased Kunjum at the farm house prior to the incident was not confronted in the cross examination by the Ld. defence counsel for A-5 if deceased Kunjum was not wearing golden chain Ex.P2 at the time of her arrival at the farm house. This witness otherwise did not support the prosecution on material facts.
Involvement of A-1, A-2, A-3 and A-4

i)

Case of the prosecution is that A-1 to A-4 conspired

to eliminate deceased Kunjum through the agency of A-5 to A-7, etc.

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ii)

No direct evidence has been relied upon to prove

conspiracy. Again, the prosecution has relied upon following incriminating circumstances to show hatching of conspiracy by A-1 to A-4. These circumstances are being discussed in detail.
1) Abscondence of A-1

i)

Main emphasis of the prosecution to establish the

complicity of A-1 in the commission of offence is the circumstance of abscondence. Case of the prosecution is that soon after the incident, A-1 absconded to Ahmedabad and stayed under a fictitious name at a guest house there. A-1 has denied this allegation and has argued that he was taken to Ahmedabad by Delhi Police after he was lifted from Delhi and false evidence was created to involve him in this case. ii) On scrutinizing the evidence adduced on record by

the prosecution, it stands established that A-1 stayed under the assumed name at guest house at Ahmedabad. Material

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testimony on this aspect is that of PW5 Amara Bhai K. Patel, Manager, Kapadia Guest House located near Badilal Hotel in Ahmedabad. In his statement before the court appearing as PW5, Amara Bhai K. Patel specifically deposed that he was working as manager at Kapadia Guest House for the last 25 years. On 22.03.99, he was on duty as Manager at the guest house from 7 PM (evening) till 7 AM (next morning). On that day, one person disclosing his name as Raj Kumar Bhatia resident of 37, Travels Nagar, Indore made entry at serial No.1329 in the visitors' register at about 7.30 PM. This entry was made by him in the register regarding the stay of A-1 under the name of Raj Kumar Bhatia. The said guest signed as Raj Kumar against that entry in his presence. The witness proved the photocopy of the said entry which is Ex.PW5/A. The said guest Raj Kumar stayed at room No.50 at the guest house. Further deposition of the witness is that on the intervening night of 22/23.03.99, police of crime branch,

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Ahmedabad came to Kapadia Guest House and inquired from him as to who was staying in room No.50. He took the police to that room and got the room opened. Police made inquiries from the guest of that room and later on arrested him. The witness pointed towards A-1 present before the court today by raising his finger and stated that he was the person who had stayed at his guest house in room No.50 under the name of Raj Kumar and was arrested by the police of Ahmedabad. The witness further stated that Delhi Police brought A-1 to their guest house at about 2.30 PM on 23.03.99. The entry in the register was seen by Ahmedabad police and they had written checked out. iii) In the cross examination, this witness stated that

Delhi Police had met him in the afternoon of 23.03.99 and had recorded his statement. Entries in the register on 18.03.99 as well as on 21.03.99 and also on other dates in the register brought by him were in his handwriting. The witness fairly

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admitted that he had not seen A-1 prior to 22.03.99 at his Guest House. The witness denied the suggestion that A-1 never stayed in his guest house or that signatures “Raj Kumar” in the entry Ex.PW5/A were not that of A-1. iv) The testimony of this witness inspires implicit

confidence. PW5 Amara Bhai K. Patel is an independent public witness. He has no motive to falsely rope-in A-1 or to support the prosecution. PW5 Amara Bhai K. Patel is not related to the family members of the deceased to falsely create evidence for the prosecution. He was not enimical to A-1 to depose against him. Presence of this witness at

Kapadia Guest House being Manager is quite natural and probable. This witness in the course of his duties in routine had made entries in the visitors' register being on duty at the time of arrival of A-1 at the Guest House. This witness was having no acquaintance with A-1 and has fairly, without any suspicion, recorded his name as “Raj Kumar” in the visitors

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register as disclosed by him. Only on the arrival of the police from crime branch of Ahmedabad, this witness came to know the real / actual name of the guest staying under the assumed name of “Raj Kumar” as Surender Mishra. A-1 was arrested from the guest house and was taken by the crime branch of Ahmedabad Police. This witness proved the entry Ex.PW5/A made by him in the visitors' register in the ordinary course of business. Presence of this witness as a Manager at Kapadia Guest House has not been controverted. This witness

travelled long from Ahmedabad to make his deposition before this court in this case in which he was not at all interested. v) No material discrepancies, whatsoever, have been

elicited in the cross examination of this witness to disbelieve his version regarding stay of A-1 at room No.50 at Kapadia Guest House at the relevant time. A-1 did not dare to examine any expert witness in his defence to prove that signatures on Ex.PW5/1 as “Raj Kumar” were not his. A-1 did not examine

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any witness in defence to show as to when and from where he was apprehended. No evidence was adduced by A-1 to show if he was apprehended from Delhi and was allegedly taken by Delhi Police to Ahmedabad. There was no fun for Delhi Police to first apprehend A-1 from Delhi and subsequently, take him to Kapadia Guest House without any purpose. In that eventuality, PW5 Amara Bhai K. Patel

having no concern with Delhi Police or in this case was not at all expected to identify A-1 to be the person who had stayed at his Guest House in room No.50. A-1 failed to explain the exact place where he stayed soon after the incident and prior to his apprehension in this case. vi) Prosecution has established that on 19.03.99, A-1

had a meeting with A-4 at Tihar, Delhi. The occurrence took place on 20.03.99. A-1 was arrested from Kapadia Guest House on the intervening night of 22/23.03.99. It was within the special knowledge of A-1 as to where he stayed during

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this period if he was not arrested from Kapadia Guest House. A-1 has failed to divulge this information and thus, his version can't be considered. vii) Material facts proved on record by this witness have

remained unchallenged in the cross examination. There is nothing to discard the version given by PW5 Amara Bhai K. Patel which is supported by documentary proof in the visitors' register. viii) PW12 Tarun Kumar Amritlal from crime branch,

Ahmedabad City has corroborated the statement of PW5 Amara Bhai K. Patel and has proved the apprehension of A-1 from room No.50, Kapadia Guest House on the intervening night of 22/23.03.99. In his deposition before the court, PW12 Tarun Kumar Amrit Lal, Insp crime branch, Ahmedabad also testified that on 22.3.99 they got information that nephew of A-4 namely A-1 was staying at Kapadia Guest House at room no. 50 and he had committed murder of Kunjum. On that

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information, he reached at the spot at about 1 or 2 am. After contacting the manager, they went in room no. 50 of the guest house. Room was knocked and was opened by A-1. On interrogation A-1 disclosed his name as “Surender Mishra” and in the register of the guest house, he had mentioned his name as “Rajkumar Bhatia”. A-1 present before the court was apprehended by him. He called two panchnama witnesses namely Vinod and Raju and in their presence, room of A-1 was searched and they found visiting cards of lawyers and Rs.471.50 besides railway tickets, bills and receipts of the STD calls and one suite case of black colour and two pair of clothes. All these articles were seized by preparing their

panchnamas. A-1 was interrogated and his disclosure statement Ex.PW12/A was recorded. The witness further

stated that during the disclosure statement, he came to know that A-1 was having mobile No.9810114857. Thereafter, A-1 was produced before the courts at Ahmedabad. On 23.03.99

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Delhi police came and recorded his statement. ix) In the cross examination on behalf of the accused

persons, this witness deposed that in the remand papers, name of A-1 was mentioned as accused. The articles seized from A-1 were produced before the court. The witness asserted that Raj Kumar Bhatia and Surender Mishra (A-1) were the same person. The witness denied the suggestion that one Raj Kumar Bhatia was staying at the guest house and accused was falsely implicated in this case or that disclosure statement Ex.PW12/A was fabricated. x) The entire testimony of this witness fully proves the

version given by the prosecution regarding apprehension of A-1 on the intervening night of 22/23.03.99 from room No.50, Kapadia Guest House. This witness from Ahmedabad police having no concern with the case in question at Delhi is not expected to raid room No.50, Kapadia Guest House and to falsely show arrest of A-1 from there. A-1 did not assert his

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presence at the relevant time at any other specific place at Delhi or somewhere else. The very fact that this accused was produced before the courts at Ahmedabad on the next day at about 11 AM fully lends credence to the version given by this witness. No suggestion was put to this witness in the cross examination if the articles seized did not belong to the accused. Rather, suggestion was put to this witness in the cross examination that they were trying to search Abu Salem and Dawood Ibrahim and wrongly arrested accused present in the court. This suggestion apparently supports the case of the prosecution whereby A-1 was arrested from room No.50 where he was staying under a fictitious name. xi) PW36 Inspector Jagdish Meena also supplemented

the statements of both thees witnesses on this aspect and deposed in his examination that on the morning of 23.03.99, he got the information from Ahmedabad regarding

apprehension of A-1 by Crime team. He along with SI Vijay

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Kumar reached at Ahmedabad. There, he came to know that A-1 had stayed at Kapadia Guest House under a fictitious name of “Raj Kumar Bhatia”. He interrogated A-1 and

collected the original disclosure statement made by A-1 from Ahmedabad police. He also got remand of A-1 from

Ahmedabad courts. It was four days police custody remand. He recorded statement of Inspector Tarun Kumar Amritlal and seized the photocopies of the register of the guest house vide seizure memo Ex.PW36/A. He came back to Delhi after the arrest of the accused from Ahmedabad and reached Delhi on 25.03.99. xii) In the cross examination, the witness denied the

suggestion that A-1 was in his custody prior to 23.03.99 at Delhi or that he had taken A-1 to Ahmedabad. The witness stated that he had interrogated the manager of Kapadia Guest House. The witness fairly admitted that no incriminating article was recovered from A-1 or at his instance.

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xiii)

The testimony of this witness is in consonance with

the testimony of PW5 Amara Bhai K. Patel and PW12 Tarun Kumar Amritlal. Again in the cross examination of this witness, A-1 did not assert as to since when he was in the custody of this witness prior to his arrest. A-1 did not explain as to how and under what circumstances he was taken from Delhi to Ahmedabad as alleged by him. He also failed to explain how and under what circumstances he was produced before the courts at Ahmedabad. All these court proceedings / documents can't be imagined to be fabricated by the police of Ahmedabad and Delhi. xiv) The statements of above witnesses establish

beyond doubt that A-1 was apprehended from room No.50, Kapadia Guest House on the intervening night of 22/23.03.99. It has further been proved that A-1 had attempted to conceal himself much away from Delhi after the incident under a fake name as “Raj Kumar Bhatia”. A-1 failed to lead any evidence

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in defence to controvert these specific pieces of evidence appearing against him and to prove the exact date or place of his alleged arrest. xv) The circumstance of abscondence from Delhi soon

after the occurrence and to stay under bogus name at a hotel at Ahmedabad to conceal his identity is definitely a serious incriminating circumstance pointing an accusing finger against A-1 showing his complicity in the commission of the offence. A-1 failed to explain the purpose of his visit to Ahmedabad. He also failed to state compelling circumstances forcing him to stay at a remote place away from Delhi under bogus name. A-1 who used to remain constantly in touch with A-4 prior to the incident is not expected to run to such a long distance for no obvious purpose. He did not deem it fit to inform A-4 for his alleged visit to Ahmedabad though he visited him in jail on 19.03.99. It shows his guilty mind soon after the incident whereby he attempted to flee-away from the scene of

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incident.
2. A-1 to A-3 regular visitor to A-4

i)

Next circumstance to infer conspiracy among

accused persons is regular visits by A-1 to A-3 to A-4 in jail and outside. ii) Case of the prosecution is that A-1 to A-3 were

regular visitors to Tihar Jail and used to meet A-4 lodged in jail No.5. It is during these meetings, that all these accused persons entered into criminal conspiracy to eliminate deceased Kunjum. A-4 has denied in his statement recorded U/s. 313 Cr.P.C. regarding his meetings with A-1 to A-3 at Tihar Jail. His only plea is that family members of deceased Kunjum only used to meet him in Jail. He did not meet any other person there. Contention of A-2 and A-3 is that they were pairokars of the cases against A- 4 and used to meet him at Tihar Jail to consult about the cases pending against him. A-1 has denied to have met A- 4 in Jail.

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iii)

On fair appraisal of the evidence adduced on this

aspect, it stands proved beyond doubt that A-1 to A-3 were regular visitors to Tihar Jail and used to often meet A-4 there. There is no substance in the statement of A-4 that A-1 and A3 never met him at Tihar Jail. A-4 has even denied to have any acquaintance with A-1. He has gone to the extent of saying that he did not know if A-1 was his nephew. A-4 further stated that A-1 to A-3 had no authority to enter inside the farm house or that they were not concerned with the activities at farm house or with his cases. iv) Prosecution has filed documentary evidence on this

aspect and has produced a very material prosecution witness PW4 Mahender Prashad, Assistant Superintendent, Tihar Jail. In his deposition before the court, he deposed that in March, 1999, he was posted as Assistant Superintendent in Jail No.5, Tihar Jail where A-4 was lodged. He was Incharge of managing the visitors' meetings with the under-trials lodged in

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Jail No.5 during those days. Three persons / visitors were allowed to meet the under-trials or the convicts in the jail at one time. One visitors' register was maintained. This witness further stated that A-4 was lodged in Jail No.5 during those days and in the month of March, 1999, on 05.03.99,

09.03.99, 12.03.99, 16.03.99 and 19.03.99, visitors had met him and entries in that regard were made in the register. This witness further elaborated that on 05.03.99, A-1, A-2 and PW Pawan Budhiraja had met A-4. On 09.03.99, A-1 and A-2 had met A-4. On 12.03.99, A-1, A-2 and A-3 had met A-4. On 16.03.99, A-2, A-3 and Pawan Budhiraja had met A-4 and on 19.03.99, A-1, A-2 and Pawan Budhiraja had met A-4 in Jail. This witness identified A-2 and A-3 to be the visitors who used to come to visit A-4 in Jail. v) This witness was not cross examined by A-1. He

did not deny his visits to Tihar Jail on these dates. He did not deny if he had not met A-4 on these dates at Tihar Jail. He did

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not deny that he had not

put any signatures on the

photocopies of the entries in the register which are Ex.PW4/1 to Ex.PW4/5. vi) In the cross examination on behalf of A-4, again no

suggestion was put to this witness if all these accused persons had not met him on all these different dates. No suggestion was put to this witness if the record Ex.PW4/1 to Ex.PW4/5 was fabricated. vii) This official witness having documentary proof

regarding meetings of the visitors to A-4 has no axe to grind to make false statement against record. A-2 and A-3 also did not cross examine this witness to deny if they had not met A-4 on these dates. Unrebutted testimony of this witness proves beyond doubt that A-1 to A-3 were regular visitors to A-4 and there is no substance in the contention of A-4 made in the statement recorded U/s. 313 Cr.P.C. that he did not know A-1 to be his nephew or that A-1 to A-3 had never met him in jail.

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Apparently, A-4 is suppressing this material fact for the reasons known to him. viii) PW1 Ms. Meena Budhiraja, Assistant Ahlmad in the

court of Ld. C.M.M. Tis Hazari Courts has also proved that A1 to A-3 also used to meet A-4 during his appearance in the court of Ld. C.M.M. In her deposition before the court, she

proved on record various applications Ex.PW1/1 to Ex.PW1/5 moved in the court of Sh. R.K. Gauba, the then Ld. C.M.M. by applicants including A-1 to A-3 for having meeting with A-4. She also proved on record various other applications moved before the court of Sh. J.R. Aryan, the then Ld. A.C.M.M. which are Ex.PW1/6 to Ex.PW1/8 moved for this purpose. In her testimony, she deposed that on 16.01.99, A-1, A-3 and Pawan Budhiraja had moved an application for meeting A-4. Application moved on 16.02.99 was from A-1, A-3 and Pawan Budhiraja. Application dated 15.03.99 was moved by A-1, A-2 and A-3. Application dated 16.02.99 was moved by A-3 and

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application dated 08.04.99 was moved by Amrit Lal Budhiraja. ix) This witness was not cross examined by the Ld.

defence counsel for the accused persons except A-4. A-4 did not deny if these applications were not moved by the persons mentioned therein or that he had no meetings or conversation with the persons mentioned therein at the time of his appearance before the court of Ld. C.M.M. / A.C.M.M. on these dates. x) PW23 HC Ramesh Kumar also proved various Ex.PW1/1 to Ex.PW1/7, Ex.PW23/1 to

applications

Ex.PW23/34 showing visits of accused persons to A-4. Again, this witness was not cross examined by any of the accused persons. xi) PW28 Pawan Budhiraja has also in his statement

before the court talked about visits of A-1 to A-3 at Tihar Jail. Rather, he has deposed that A-1 to A-3 used to put their names first in the visitors register to meet A-4 to deprive him

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his meetings with A-4.

He further testified that on one complained

occasion, he had informed A-4 also and had

about the conduct of A-1 to A-3. He also deposed that in March, 1999, A-1 to A-3 even assaulted him and his father at Tihar Jail when he had gone there to meet A-4. This version of PW28 Pawan Budhiraja is corroborated by PW30 Vikram Singh when he deposed that he had escorted Pawan Budhiraja and his father Amrit Lal Budhiraja to their house after threats were extended to them within the premises of Tihar Jail on 05.03.99. He had seen three or four boys by the side of A-2 and A-3 and who had run away on seeing them. They had extended threats to Pawan Budhiraja to eliminate him. xii) The testimonies of both these witnesses further

show that A-1 to A-3 were regular visitors to A-4 prior to the incident and were in constant touch with him. xiii) A-4 apparently has come up with a false plea in the

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statement recorded U/s. 313 Cr.P.C., about his relationship with A-1 to A-3 and about their visits to him. In their statements, A-2 and A-3 have categorically admitted about their visits to Tihar Jail to meet A-4. The defence has failed to reconcile the two contradictory versions given by the

accused persons on this aspect. xiv) There is enough evidence on record to show that A-

1 to A-3 were in constant / regular touch with A-4. There is no substance if A-1 to A-3 were not having no acquaintance with A-4 prior to the incident. Their names find mention in the letters proved on record. PW16 Ram Achal Tiwari has also deposed about visits of A-2 and A-3 in his cross examination. He, however, added that A-2 and A-3 used to come along with A-4 whenever there was a party at farm house. PW16 Ram Achal Tiwari, contrary to the stand taken by A-4 has at least admitted that A-1 was known to him as he was the nephew of A-4. Strange enough A-4 does not recognize A-1

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as his nephew though, his trusted Caretaker knows him to be his nephew. xv) Above evidence discussed reveals that A-1 to A-3

were in constant touch with A-4 prior to the incident. The occurrence took place on 20.03.99. Only on 19.03.99, a day before the fateful incident, A-1 and A-2 had met A-4 inside the jail. A-4 has denied this meeting falsely. It seems that A-4 intends to conceal as to what conversation took place between him and A-1 and A-2 at that time. Regular visits of A1 to A-3 to A-4 in jail show that they were hand in glove with each other. A-4 had no suspicion or complaint against conduct and behaviour of A-1 to A-3 at any time. xvi) It has further come on record that after this horrible

incident on 20.03.99, A-1 to A-3 who used to have frequent visits at regular interval to A-4 did not deem it fit to inform A-4 about murder of his alleged beloved / fiancy. A-4 did not suspect involvement of A-1 to A-3 at any time though, his

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arrest in this case took place after sufficient long time. A-4 with the permission of the court, attended cremation of deceased Kunjum, filled sindhoor in her mang but did not bother to suspect involvement of any person in the commission of murder of Kunjum. Mere attending cremation and filling sindhoor in the mang of the deceased after the incident is not sufficient to establish innocence of A-4. A-4 has failed to justify as to what prevented him to marry the deceased earlier during her life time. The so called marriage with a dead body seems a device adopted by A-4 to wriggle out of the consequences of the offence. It remains mystery as to what prevented A-4 to give identity to deceased during her life time by marrying her before he was arrested in October, 1998. xvii) Statement of PW16 Ram Achal Tiwari was in

existence on the day of incident itself. PW16 Ram Achal Tiwari had been given copy of the FIR. A-4 must have come

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to know about the contents of this statement. He did not challenge the contents of the statement at any time as he himself was not suspect at that time. xviii) Visits of PW28 Pawan Budhiraja to meet A-4 are

not disputed. DW1 Naveen Budhiraja, brother of PW28 Pawan Budhiraja, was also lodged as an accused along with A-4 in jail No.5 at that time. PW28 Pawan Budhiraja used to meet both his brother and A-4 and used to provide home made food to them on his visits. During these visits, exchange of letters between the deceased and A-4 took place. xix) The entire visit record to A-4 in jail further shows

that at no point of time deceased Kunjum ever came to meet A-4 at Tihar Jail. There is nothing on record to show in the letters also if A-4 ever asked deceased Kunjum, for whom he used to have alleged immense love, to meet him at jail. xx) There is nothing on record also to show if

deceased Kunjum had ever met A-4 during his hearing before

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the courts. It shows that A-4 used to share his information / instructions only with A-1 to A-3 who were regular visitors to him. In her letters Ex.DW/1/1 to Ex.DW1/58 deceased time and again expressed her desire to meet A-4. It seems that her desire was not met by A-4.
3. Call Details / print-outs

i)

Prosecution has relied upon call details that took infer

place between A-1, A-2 and PW30 Vikram Singh to conspiracy regarding the incident. ii)

PW30 Vikram Singh running security agency

supported the statement of PW17 Hari Chand, security guard, that on 20.03.99, at about 1 PM, he received his telephone call on his mobile from PCO informing him about the murder of a girl at Jai Mata Di farm house. He received the said call at about 1.10 PM. Thereafter, he made telephone call from his mobile to A-2 on her mobile No.9811024145 and told her regarding the incident. A-2 told him that the name of the girl

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was Kunjum who was murdered. A-2 again rang him from her mobile and asked him to tell as to whether the boys who had committed the murder were still at the farm house or not or they had run away. A-2 asked him to tell those facts back to her after checking the same. This call of A-2 was received by him in between 1.15 to 1.30 PM. After about 1 ½ hour, he reached at the farm house on the same day and saw the police present there. iii) In the cross examination of this witness, the

material facts asserted by this witness for having conversation with A-2 on her mobile regarding the incident have remained unchallenged and uncontroverted. A-2 did not deny that she did not own mobile No. 9811024145 on the day of occurrence or that she had not received any such call on her mobile from PW30 Vikram Singh. She did not deny if in return no telephone call from her mobile was made on the mobile of PW30 Vikram Singh.

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iv)

Evidence adduced on record by the prosecution

proves beyond doubt that on the day of incident A-2 was having mobile No.9811024145 .This mobile phone was

seized by PW37 Inspector Surender Sharma from the possession of A-2 at the time of her arrest on 25.03.99. Disclosure statement of A-2 Ex.PW21/2 was recorded and in her disclosure statement she disclosed that her cell phone was 9811024145. Cell phone with Sim card Ex.P3 was

seized vide seizure memo Ex.PW35/3. This seizure memo bears signatures of Mahender Singh, father of A-2, at point E. In the cross examination, A-2 did not deny if this mobile with Sim card was not in her possession or that the same was not seized by the IO on that day. She did not deny if she did not make telephone calls on this mobile number or that the same remained in custody / possession of someone else. A-2 did not examine any witness in defence including her father to controvert seizure of mobile with Sim card No. 9811024145

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from her possession.

In her statement recorded U/s. 313

Cr.P.C. Also A-2 did not specifically deny possession of this Sim card and its recovery by the police. A-2 or any of her family member did not come up with any plea if A-2 was having no mobile on the day of incident or that she was having some other mobile with different Sim card. v) PW30 Vikram Singh in his statement before the

court categorically asserted to have made telephone call to A-2 on her mobile No. 9811024145. The call was returned by A-2. It shows that A-2 was using mobile No. 9811024145 on

the day of incident. There is nothing to disbelieve the natural version given by PW30 Vikram Singh on this aspect. vi) PW30 Vikram Singh further disclosed that during

those days in the month of March 1999, he was having mobile phone with him whose number was 9811155439. This witness has not been controverted on this aspect. PW17 Hari Chand also deposed that on the day of incident, he had informed PW

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Vikram Singh on his mobile No.9811155439. It thus stands established that PW30 Vikram Singh was having mobile No. 9811155439 on the day of occurrence. vii) Prosecution has further claimed that A-1 was

having his mobile with number 9810114857. Prosecution was not aware about this mobile number of A-1. At the time of apprehension of A-1 from Ahmedabad, in his disclosure statement, Ex.PW12/A made there, A-1 himself disclosed that his mobile No. was 9810114857. PW12 Tarun Kumar, Inspector crime branch, testified that due to the disclosure statement of A-1, he came to know that his mobile number was 9810114857. Discovery of mobile number which was not known to the police of PS Ahmedabad in disclosure statement is a relevant fact to be taken into consideration. At no stage during trial, A-1 denied that he did not own any such mobile number and did not use to have conversation on it. He did not claim to own any other mobile with any other mobile number.

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This fact was within special knowledge of A-1 which he has failed to divulge. In the cross examination of the prosecution witnesses, A-1 did not challenge that he did not own this number. viii) Having ascertained the mobile numbers of A-1, A-2,

PW30 Vikram Singh, the prints-outs taken regarding their call details by PW36 Inspector Jagdish Meena are very material. He collected the print-outs of mobile phones which are Ex.PW36/5. ix) PW8 Deepak Gupta, Deputy Manager, Legal

Operation, Essar Cell phones, Okhla proved the print-outs Ex.PW9/1 regarding the call details on the mobile phone of PW30 Vikram Singh having mobile No.981155439. In his statement before the court, he stated that address of Vikram Singh was at A-1/19, Sector-V, Rohini, Delhi and he was their regular customer and was having cell number 9811155439. This witness further stated that mobile telephone

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No.9811024145 was a pre-paid cash card. This witness proved the computer print-outs of this mobile phone detailing the calls for the period from 01.03.99 to 24.03.99 running in eight pages which are Ex.PW9/2. x) PW11 Capt. Rakesh Bakshi proved that on

01.09.99 print-outs of mobile No. 9810114857 was provided by him to the IO running into six pages and the same are Ex.PW11/1. This witness further proved the print-outs from the back-up server which are Ex.PW11/2. xi) Both these witnesses, however, could not give as to

whom the telephone number 9811024145 and 9810114857 belonged as these were pre-paid cash cards. Nevertheless, neither A-2 nor A-1 specifically challenged that both these mobile numbers did not belong to them. These official witnesses have no ulterior motive to fabricate the print-outs showing call details for different dates between different mobile numbers and there is nothing to disbelieve the call

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details recorded therein. xii) Perusal of call details on the mobile phone of PW30

Vikram Singh vide Ex.PW9 /7 for the period from 02.03.99 to 31.03.99 reveals that on 20.03.99, PW30 Vikram Singh made telephone call to A-2 on her mobile No. 9811024145. This call was made at 1.14.40 hours. The duration of the call was 44 seconds. The call detail recorded in the print-out Ex.PW9/1 substantiates the oral testimony of PW30 Vikram Singh regarding making telephone call from his mobile to the mobile of A-2 disclosing the incident. xiii) The call detail further reveals that PW30 Vikram

Singh received call from mobile number 9811024145 from A2 on 20.03.99 at 1.33.2 hours on his mobile No.9811155439. Again, this entry Ex.PW9/A corroborates the oral testimony of PW30 Vikram Singh that A-2 had given him a back call. xiv) A-2 has failed to explain how and in what

connection she had conversation on her mobile with PW30

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Vikram Singh. Silence on her part, compels the court to draw adverse inference against her. xv) Call details of mobile number 9811024145 of A-2

vide Ex.PW9/2 for the period from 01.03.99 to 24.03.99 further demonstrate that on 17.03.99 A-2 made telephone call to A-1 on his mobile number 9810114857 at 11.21.12 hours. On 18.03.99, A-2 received a call from A-1 at 9.41.36 hours. Again, on 18.03.99, A-2 made telephone call to A-1 on his mobile at 10.08.55 hours. On 20.03.99, A-2 received telephone call from A-1 at 9.47.30 hours. On 20.03.99, A-2

received call from the mobile of PW30 Vikram Singh at 1.14.40 hours. On 20.03.99, at 1.33.24 hours , A-2 made telephone call on the mobile phone of PW30 Vikram Singh. On 20.03.99, A-2 made telephone call to A-1 at 1.36.04 hours. xvi) All these calls contained in these print-outs have

not been challenged by A-2.

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xvii)

Perusal of the call details of mobile phone of A-1

vide Ex.PW11/1 also lends credence to these calls. As per the print-out Ex.PW11/A, A-1 received call from A-2 at 1.38 hours and its duration was 71 seconds. On 20.03.99, A-1 made telephone call for 146 seconds to A-2 at 9.50 AM. xviii) These call details between A-1 and A-2; between A-

2 and PW30 Vikram Singh prove that A-1 and A-2 were in constant touch on their mobiles prior to the incident as well

as on the day of incident also. It has further been established that A-2 had come to know about murder of the deceased on getting information from PW30 Vikram Singh. It has further come on record that thereafter A-2 had given a call back to PW30 Vikram Singh and she had also conversation with A-1 on his mobile after the occurrence. There is nothing to disbelieve these documentary proof. xix) Neither A-1 nor A-2 came up with any plausible

plea as to how and under what connection they were in touch

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with each other on the day of incident. They did not disclose what was their conversation. It fully proves that A-1 and A-2 remained in touch on the day of incident. They were aware of the developments taking place at the farm house and were communicating with each other.
4) Conduct of A-1 & A-2

i)

Conduct of A-1 and A-2 is relevant to infer their

involvement in the incident. They both had come to know about the incident, however, none of them bothered to inform A-4 regarding the gruesome murder of Kunjum with whom A-4 was having alleged intimate relationship. A-1 and A-2 who were regular visitors to A-4 prior to the incident and had even met him in jail on 19.03.99 were expected to immediately reach at the spot to know as to how and under what circumstances murder of Kunjum took place and their natural conduct could have been to get the culprits arrested soon after the incident and to inform A-4 in the jail. Contrary to that,

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A-1 fled to Ahmedabad and was apprehended from there on the intervening night of 22/23/03.99. A-2 did not visit the spot or visit A-4 in jail after the incident. ii) Neither of them bothered to immediately inform the

parents or brothers of the deceased about the occurrence. They even did not inform the police. There is nothing to show if any one of them prior to their arrest considered it proper to visit the family of the deceased to console them. They did not at all assist to get the alleged robbers arrested for the murder of deceased to whom A-4 purportedly considered his “would be” wife. This abnormal and unnatural conduct of A-1 and A-2 points an accusing finger against them.
5. Letters / Motive

i)

Main emphasis of the prosecution is on the

contents of letters exchanged between the deceased and A-4 to infer conspiracy. Prosecution has relied upon letters written by A-4 to deceased Kunjum from jail to infer conspiracy

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hatched by him to eliminate deceased Kunjum and his motive to take the extreme step. A-4 in his statement recorded U/s.313 Cr.P.C., denied to have written any letter.

Prosecution has examined cogent witnesses to prove letters written by A-4. It has come on record that while in custody, the communication between A-4 and deceased Kunjum was through letters. A-4 himself has filed on record number of letters written by deceased Kunjum during her life time to him. These letters used to be exchanged through PW28 Pawan Budhiraja during his visits to A-4 at Tihar Jail. There is no substance in the plea of A-4 in statement U/s. 313 Cr.P.C. that he had not written any letters to deceased in reply to letters admittedly written by her. Some letters written by deceased relied upon by A-4 in defence speak of letters received by her from A-4. ii) PW28 Pawan Budhiraja in his examination-in-chief

stated that A-4 and his deceased sister used to communicate

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with the help of letters. He used to carry the letters from A-4 and used to pass on to his sister. He also used to carry letters of deceased Kunjum to A-4 in jail. This witness identified the handwriting and signatures of deceased Kunjum and informed that letter Ex.PW27/B running into five pages was in the handwriting of his deceased sister. This witness further identified two letters Ex.PW28/B and Ex.PW28/C to be in the handwriting of A-4 addressed to his sister. He further stated that he identified the handwriting of A-4 as he used to carry his letters from Tihar Jail to his sister Kunjum or to his mother or father whosoever was available. This witness further deposed that he had handed over letter Ex.PW27/B, Ex.PW28/B and Ex.PW28/C to the IO on 25.03.99 who seized vide memo Ex.PW28/D. iii) This witness was cross examined on behalf of A-4.

In the cross examination, he admitted that the letters which he used to bring from the jail were open and were not in sealed

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envelope. He used to hand over the letters which were of his sister to his mother and father whosoever was present at that particular time. iv) A-4 did not put any suggestion to this witness in the

cross examination if letters Ex.PW27/B, Ex.PW28/B and Ex.PW28/C were not in his handwriting or in the handwriting of deceased Kunjum. A-4 did not deny if letters Ex.PW28/B and Ex.PW28/C were not written by him or that the same were not meant for the deceased Kunjum or that he had not handed over these letters to be delivered to the deceased. Hence, the testimony of this witness regarding exchange of letters between A-4 and deceased has remained

unchallenged. v) A-4 examined Naveen Budhiraja, elder brother of

the deceased, in his defence as DW1. He identified the handwriting and signatures on letters (page number 1 to 58) Ex.DW1/1 to Ex.DW1/58, to be that of deceased Kunjum. In

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the cross examination by Ld. Special PP for the State, this defence witness also identified letter Ex.PW27/B to be in the handwriting of his deceased sister. This witness further identified letters Ex.DX and Ex.DZ to be in the handwriting of deceased Kunjum. vi) Prosecution also examined PW34 Deepa Verma,

Senior Scientific Officer – documents and proved her report Ex.PW34/1. Specimen handwriting of A-4 vide documents Ex.PW33/1 and Ex.PW33/2 were sent for comparison with the questioned writing Ex.PW28/B. After examining the

questioned documents with specimen handwriting, the expert witness came to the conclusion that the person who wrote specimen handwriting S-1 to S-8 (Ex.PW33/1 & Ex.PW33/2) also wrote questioned writing Q-1 to Q-12 (Ex.PW28/B). The witness gave detailed reasons to arrive at the said conclusion. vii) This expert witness has no motive to give false

report. No expert in defence to controvert the opinion given by

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this official witness was produced by A-4. viii) Thus, the prosecution has established that letters /

documents Ex.PW27/B, Ex.PW28/B and Ex.PW28/C are in the handwriting of deceased and A-4. Denial by A-4 in the statement recorded U/s. 313 Cr.P.C. is for ulterior purpose. ix) Contents of letters Ex.PW28/B, Ex.PW28/C reveal

that these letters were written by A-4 soon prior to the incident. In these letters, A-4 insisted the deceased Kunjum time and again to perform pooja at the temple during navratras at Jai Mata Di farm house and at Mayfair house. A4 persuaded Kunjum in these letters to reach at farm house and assured to make available keys of the same through A-1 or Mr. Tiwari if she was already having none. PW28 Pawan Budhiraja in his statement before the court also deposed that he had visited A-4 in jail on 19.03.99 one day prior to the occurrence. A-4 gave him message for his sister to perform pooja inside the farm house and he also told him that A-1

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would give keys. Further deposition of the witness is that thereafter in the evening he had gone to collect keys at Mayfair Garden. He was not given keys and was rather insulted. His sister could not complete letter Ex.PW27/B as she was very tense and upset due to behaviour of A-1 to A-3. x) Again, in the cross examination, these facts

asserted by the witness have not been challenged. No suggestion was put to this witness in the cross examination that he had not gone to meet A-4 on 19.03.99 or that A-4 had not delivered him message for deceased to visit the farm house to perform pooja. It stands established that deceased Kunjum had visited Jai Mata Di farm house on the fateful day of incident only in pursuance of the request made by A-4. It has come on record that after arrest of A-4 in some other case in October, 1998, deceased Kunjum had never visited the farm house. PW27 Rani Budhiraja, mother of the deceased, specifically stated that on the day of incident, her

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daughter Kunjum alone had gone to Jai Mata Di farm house. She never used to go alone. Prior to arrest of A-4, she had gone to Jai Mata Di farm house along with him (A-4). Only on the day of occurrence, she had gone alone to the farm house. None of the prosecution witnesses though turned hostile, specifically deposed if deceased Kunjum was regular visitor to the farm house. A-4 in his statement recorded U/s. 313 Cr.P.C. did not assert if deceased Kunjum was regular visitor to the farm house or that she used to run day to day activities at the farm house like meeting expenses and paying salary to the security guards or Caretaker, etc. No such account has been placed on record by the accused persons. xi) The fact remains that on the day of incident,

deceased Kunjum had alone reached at Jai Mata Di farm house. There was none else with her at that time. This solitary visit to farm house was apparently due to the request of A-4 asking her to perform pooja during navratras there and as per

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the oral message conveyed to her through PW28 Pawan Budhiraja. Had A-4 not asked deceased Kunjum to visit Jai Mata Di House, there was no occasion for the deceased Kunjum to reach alone at Jai Mata Di farm house to meet this tragic end. xii) Contents of letter Ex.PW27/B in the handwriting of which remained incomplete and could not

the deceased

reach to A-4 meant for him, reveals how tense deceased Kunjum was on getting message to perform pooja. From the contents of this letter, it is depicted that A-4 was insisting deceased Kunjum to go there and perform pooja. The contents of this letter further reveal that deceased Kunjum was having no control over Jai Mata Di farm house and the premises at C-30, Mayfair Garden. She was not having keys of either of the two properties. In this letter Ex.PW27/B, she exhibited her anguish for not making available keys by A-1 to A-3 to perform pooja. The contents of this letter further reveal

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that Pawan Budhiraja (PW28) had gone to inform A-1 to hand over keys. However, they did not hand over the keys. Contents of this letter further reveal that A-1 to A-3 had already got the pooja performed at C-30, Mayfair Garden and only place left to perform pooja was Jai Mata Di farm house where the deceased was to reach. xiii) Contents of this letter falsify plea of A-4 in the

statement recorded U/s. 313 Cr.P.C. that A-1 to A-3 had no concern with the properties and the same were looked after only by the deceased and her family members. Had it been so, there was no occasion to write in letter Ex.PW27/B about the conduct and behaviour of A-1 to A-3 for not making available the keys. xiv) Letters Ex.PW28/B and Ex.PW28/C also talk to

make the key of Jai Mata Di farm house and of the premises at C-30, Mayfair Garden available through A-1. Strange

enough in the statement recorded U/s. 313 Cr.P.C., A-4

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denied any acquaintance, whatsoever, with A-1. It shows that A-4 is not coming with true facts. Keys of Jai Mata Di farm house were not in the possession of the deceased prior to the incident. It has further come on record that keys of Jai Mata Di farm house were made available to deceased Kunjum by A-1 only for the purpose to enable her to perform pooja in pursuance by A-4. PW27 Rani Budhiraja, mother of the deceased, denied the suggestion of A-4 in the cross examination that keys of the farm house were with the deceased after A-4 was confined in jail. This witness volunteered to add that on the day of occurrence, A-1 came at 7 AM and handed over the keys. Statement of PW28 Pawan Budhiraja, brother of the deceased, is relevant on this aspect. In his deposition before the court, he stated that he had gone to Mayfair Garden in the evening of 19th and met panditji, A-2 and A-3 and when he asked for the keys, they did not give him the keys and even did not reply properly. Thereafter, he

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returned. The witness further stated that at that time, A-2 and A-3 along with one panditji were getting some statue for pooja. This deposition of the witness is in consonance with the contents of letter Ex.PW27/B. This witness also disclosed that in the evening, deceased had inquired from A-1 as to why he had insulted the witness and if they did not want, her brother (PW28) would not come. xv) This witness was not cross examined by A-1. There

is no denial that A-1 was not in possession of the keys of Jai Mata Di farm house prior to the incident or that it was not made available to the deceased in the morning of 20.03.99 on the day of incident. xvi) Burden was heavily upon A-4 to explain bonafide

purpose of his insisting Kunjum time and again to perform pooja at Jai Mata Di farm house. In the statement recorded U/s. 313 Cr.P.C., A-4 did not give plausible explanation, his motive / purpose to ensure presence of the deceased at

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secluded place at Jai Mata Di farm house. There is nothing on record to show if deceased Kunjum had ever performed pooja at Jai Mata Di farm house alone at any time. A-4 was already in custody since October, 1998 and at no stage prior to the incident in question, he ever asked the deceased to perform pooja at the temple. Navratras had already begun. A4 did not ask the deceased in advance before the beginning of navratras to perform pooja at the temple at Jai Mata Di farm house. There is nothing on record if on daily basis, the temple at Jai Mata Di farm house was being cleaned or regular

pooja was being performed. That seemed to be device to make presence of deceased at the spot certain in which accused persons succeeded. xvii) Conspiracy is writ large as when deceased Kunjum

reached at Jai Mata Di farm house, she was alone and was not at all accompanied with any panditji. She was not having even any pooja samagri to perform pooja at the temple which

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was allegedly lying idle / deserted since the date of arrest of A- 4 in October, 1998. Without the assistance of panditji or in the absence of any pooja material, how deceased Kunjum could perform pooja at the temple. These questions have not been answered by A-4 in his statement recorded U/s. 313 Cr.P.C. xviii) The testimonies of PW15 Sunil Kumar and PW17 and answer the

Hari Chand, security guards, fill this void

queries to remove mist. In their deposition before the court, both these witnesses in so many words deposed about arrival of A-2 and A-3 along with one panditji at Jai Mata Di farm house on 20.03.99, at about 11.30 AM soon prior to the arrival of deceased Kunjum. They further deposed that A-2 and A-3 along with one Panditji had met Mr. Tiwari and asked him to get the mandir cleaned. Thereafter, both of them proceeded towards the gate where A-5 to A-7 were standing and met them. After sometime, A-2 and A-3 left on the pretext to

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purchase samagri for pooja and to return after a short while, however, they never returned thereafter. Since, deceased Kunjum was having no pooja samagri and was not accompanied with any panditji, the story presented by both these witnesses regarding presence of A-2 and A-3 along with panditji at Jai Mata Di farm house at about 11.30 AM and thereafter, their leaving the place on the pretext of bringing pooja samagri appeals to mind. It seems that deceased was ensured that pooja samagri and panditji would be available at the time of her performing pooja at Jai Mata Di farm house. It shows that A-4 had not intended Kunjum to perform pooja. His only intention was to ensure her arrival there to trap her and for that reasons, Kunjum had come alone without any panditji and even without any pooja material. Contents of letters Ex.DW1/1 to Ex.DW1/58 amply show that deceased was already doing a lot for early release of A-4 and was performing various rituals and ceremonies to worship God.

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So, there was no occasion for A-4 to force her to reach at Jai Mata Di farm house only for performing pooja there. xix) Main emphasis / stress of Ld. defence counsel for

A-4 is upon the letters Ex.DW1/1 to Ex.DW1/58 written by deceased Kunjum to A-4 to show that there was great love and affection for the deceased in the heart of A-4. Deceased herself had given detailed account as to how she used to have deep love and affection for A-4. There was no demand raised by the deceased in the letters prompting A-4 to

eliminate her. Deceased used to pray for early release of A-4 and there was no occasion for A-4 to sever his relations with her. xx) I have gone through the contents of these letters

and find that deceased Kunjum was having all love and affection for A-4. She was having no grudge, whatsoever, against A-4 and prayed for his early release. However, these letters were never produced by A-4 during investigation to the

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police. There is no guarantee that these were the only letters written by the deceased to A-4. There is no guarantee that A4 produced deceased. each and every letter written to him by the A-4 is not expected to bring on record the letters

having incriminating piece of circumstance against him. There is no proof that these were the only letters written by the deceased during the custody period of A-4 prior to the occurrence. So, all these letters can't be made basis to

reach to a definite conclusion that all was fair till the date of incident between the deceased and A-4. Again, A-4 did not clarify in his statement recorded U/s. 313 Cr.P.C. if he used to write letters regularly to the deceased. No such letters have come on record except the letters Ex.PW28/B and

Ex.PW28/C. xxi) Letters Ex.DW1/1 to Ex.DW1/58 proved on record

by A-4 pertain to the period for the month of December 1998, January 1999, February 1999 and first week of March 1999.

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Dates mentioned in these letters show that deceased used to write letters to A-4 prior to 05.03.99 on regular basis. There are letters written by the deceased which are dated 04.01.99, 05.01.99, 06.01.99, 07.01.99, 08.01.99 and 09.01.99. Again, number of letters were written in February 1999. A-4 has filed on record only one letter dated 05.03.99 written to A-4 in March 1999. No letter after 05.03.99 and prior to 20.03.99 written by the deceased has been placed on record. When the deceased was in the habit of continuously writing letters at regular interval to A-4, there was no occasion for her not to write letters to A-4 for so long duration after 05.03.99. A-4

did not give any explanation for not filing on record the letters, if any, written by the deceased to him in between 05.03.99 and 20.03.99. It shows that A-4 did not file on record all the letters written by the deceased to him and he seems to have concealed those letters. Moreover, some of the letters filed on record by A-4 are not complete ones and some of the

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letters have partial torn portion of the page. So, it can't be said that the relations between the deceased and A-4 continued to be as cordial as they were prior to the arrest of A-4. xxii) I have gone through the contents of these letters

Ex.DW1/1 to Ex.DW1/58. These letters show that there were demands by the deceased also. In letter Ex.DW1/24, there is mention regarding the documents / papers to be sent to A-4 for property at Hauz Khas. In letter Ex.DW1/28, the deceased informed A-4 that they had shifted to C-31, Hauz Khas and had brought their articles therein. She further disclosed that she did little pooja herself and shifted to C-31, Hauz Khas. In letter Ex.DW1/32 and Ex.DW1/33, there is mention to get Santro car on finance basis. In some letters, there is mention for running health club / gym. In one letter Ex.DW1/27,

deceased complained for not getting any identity. The letter Ex.PW28/B and Ex.PW28/C written by A-4 reveal that he

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requested the deceased to settle for an Indian car instead of having an imported car. A-4 even asked her to arrange on installment basis a small Indian car. There is demand of some computer for PW28 Pawan Budhiraja also. So, it can't be said that there was no demand, whatsoever, by deceased or that on that account, A-4 had no motive to get rid of her. There is nothing in the statement recorded U/s. 313 Cr.P.C. if A-4 had permitted the deceased to shift to C-31, Hauz Khas. Shifting of the deceased to C-31, Hauz Khas seems to have altogether changed the mind of A-4 towards the deceased. PW27 Rani Budhiraja stated before the court that the deceased had shifted to C-31, Hauz Khas only about nine days prior to her murder. The deceased moved an application Ex.PW27/A dated 15.03.99 for shifting of telephone at C-31, Hauz Khas. xxiii) Contents of all these letters support the

prosecution case to establish motive of accused persons

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specially A-4 to hatch conspiracy to eliminate the deceased. xxiv) In circumstantial evidence, motive assumes greater

significance. Motive lies in the mind of the person. Most often it is only perpetrator of crime who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. It is not possible to measure up the extent of his feeling, sentiments or desire as to say what compelled him to commit a particular crime. xxv) However, in the present case prosecution through

letters, proved on record, has established strong motive of A4 to get rid of the deceased. Nearness of A-1 to A-3 with A-4 further lends credence to this belief. xxvi) After coming to know about the deceased shifting to

C-31, Hauz Khas, it seems that his affairs from side of A-4 with deceased Kunjum broke beyond redemption. It proved to be a turning point in their relations.
6. Strained relations of A-1 to A-3

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i)

On scrutinizing the evidence adduced on record by

the prosecution, it stands established that relation of A-1 to A3 were not at all cordial with the deceased prior to the occurrence. There is nothing on record to show if all these accused persons had ever cordial meeting with the deceased at any time. Rather, evidence has come on record that all these accused persons ill-treated PW28 Pawan Budhiraja, younger brother of Kunjum, at Tihar Jail. They made all efforts not to allow PW Pawan Budhiraja to have meeting with A-4 at Tihar Jail. PW28 Pawan Budhiraja even narrated one

incident in which A-1 to A-3 extended threats to him and his father at Tihar Jail and he had to call PW30 Vikram Singh who on reaching at Tihar Jail escorted PW28 Pawan Budhiraja and his father to their house. Contents of the letter Ex.PW27/B in the handwriting of the deceased reveal that PW28 Pawan Budhiraja was not given key of the farm house and was insulted on 19.03.99. Deceased had complained to

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A-1 for not providing key of the farm house to PW28 Pawan Budhiraja. Deceased also complained about this attitude of A1 to A-3 in the letter meant for A-4. ii) A-4 claimed the deceased to be his fiancy. Plea of

A-4 is that he and deceased wanted to marry with the consent of her parents. Had the relation between the deceased and A4 been so intimate, A-1 to A-3 who used to have regular meetings with A-4 in jail would not have dared to disobey him and to annoy PW28 Pawan Budhiraja. They would not have dared to deprive the deceased key of the farm house. A-2 and A-3 who were asserted sisters of A-4 would have given due respect to the deceased, would-be wife of A-4. However, nothing such happened. A-4 even himself did not opt to hear PW28 Pawan Budhiraja and the deceased against A-1 and A3 on this and surprisingly never made them understand. iii) Grievances of deceased towards A-1 to A-3 even

find mention in the letters Ex.DW1/1 to Ex.DW1/58 written by

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the deceased to A-4. In the letter dated 29.01.99, Ex.DW1/21, there is specific complain about the conduct and behaviour of A-1 to A-3 for doing lot of mischief. In the letter Ex.DW1/1 dated 25.01.99, deceased did not deem it fit to hand over letter in the hands of A-2 to be delivered to A-4. Similarly, in the letters dated 13.02.99, Ex.DW1/15, there is disclosure about interference by A-2 and A-3. In the letter Ex.DW1/11, there is mention regarding payment of some money to A-1. In most of the letters, deceased earnestly expressed her desire to meet A-4. However, no such meeting ever took place. Contrary to that, A-1 to A-3 remained in constant touch with A-4 prior to the incident. It shows that despite coming to know about the complaints or grievances of the deceased about A-1 to A-3, A-4 continued to have his trust reposed in A-1 to A-3. This conduct of A-4 ignoring the grievances of the deceased shows that he was nearer to A-1 to A-3 than the deceased and did not care much about her.

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iv)

Since A-1 to A-3 were having strained relations with

the deceased and considered her to be an obstruction in their relation with A-4, there was every certainty of them to hatch conspiracy with A-4 to eliminate her. A-1 to A-3 definitely did not like her undesirable interference. PW27 Rani Budhiraja and PW28 Pawan Budhiraja have deposed that A-2 wanted to marry A-4. Deceased in her letter Ex.PW27/B specifically complained A-2 to be claiming herself as Mrs. Sharma. This attitude of deceased qua A-2 show that relations between A-1 to A-3 with deceased were not at all smooth. There was, thus, no reason for them not to join hands with A-4 in his design.
7. Visit of A-1 at Jai Mata Di farm house

i)

Prosecution case is that on 20/3/99 in the morning

A-1 visited Jai Mata Di farm house and had conversation with A-5 to A-7 present there. ii) Both prosecution witnesses PW15 Sunil and PW17

Hari categorically deposed about visit of A-1 at Jai Mata Di

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farm house on 20/3/99 at about 8 am. They further deposed that A-1 had conversation there with A-5 to A-7. For the

reasons mentioned above, to accept their version, there is nothing to disbelieve the deposition of both these independent witnesses on this aspect also. A-1 has failed to explain the purpose of his visit at Jai Mata Di farm house in the morning or to have conversation with A-5 to A-7. This visit of A-1 to Jai Mata Di farm house is an incriminating piece of evidence against against him showing his involvement.
8. Visit of A-2 and A-3 at the Jai Mata Di farm house

i)

Further case of the prosecution is that both A-2

and A-3 along with one Panditji had visited Jai Mata Di Farm house on 20/3/99 at about 11.30 am. Again both these material witnesses PW5 Sunil and PW7 Hari testified about visit of both A-2 and A-3 along with Panditji at Jai Mata Di farm house. They further deposed that at that time A-2 and A3 met PW 16 Ram Achal Tiwari. They had also conversation

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with A-5 to A-7. ii) There is nothing to disbelieve the assertion of these

material prosecution witnesses on this aspect too. A-2 and A3 further failed to explain/justified their visit at Jai Mata Di Farm house on 20/3/99. In these circumstances also pointing out an accusing finger against them.
9. Inconsistent defence / false explanation

i)

Accused

persons

have

taken

inconsistent,

contradictory defence in their statements recorded U/s 313 CrPC. They all failed to give plausible explanation to the incriminating circumstances appearing against them. A-4 categorically pleaded that he never met A-2 and A-3 in jail. A2 and A-3 have given contradictory statements disclosing that they used to meet A-4 in jail to seek instructions from him to pursue his cases as Pairokars. Prosecution produced substantial documentary evidence on record to substantiate that A-1 to A-3 were regular visitors to A-4 at Tihar Jail as well

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as during his appearance before different courts in the lockups. ii) A-4 categorically denied that except Kunjum and

her family members, no else was authorized to enter inside Jai Mata Di farm house. Prosecution proved on record clinching evidence to show that A-1 to A-3 used to manage the properties of A-4 and also used to visit Jai Mata Di farm house. A-4 himself told the deceased in his letters to make available key of the farm house through A-1. iii) A-4 in the statement surprisingly refused to

recognize A-1 to be his nephew. Cogent evidence proved on record falsifies this plea of A-4. A-4 remained mum regarding his relation with A-2 and A-3. He did not opt to give specific answer regarding the role attributed to them by the prosecution. He merely expressed his ignorance to the incriminating circumstances. He did not assert if A-2 and A-3 were his party workers. He did not plead if he used to

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consider A-2 and A-3 as his 'sisters'. iv) A-2 and A-3 in their statements U/s 313 CrPC also

did not claim themselves like 'sisters' of A-4. They merely claimed themselves as pairokars of A-4. They failed to disclose acquaintance with A-1. v) Similarly other accused persons offered false persons failed to explain the

defence. The accused

incriminating circumstances appearing against them. vi) It is well settled law that giving

evasive/incorrect/misleading explanation to the incriminating circumstances goes against the accused. In the latest case titled “State of Rajasthan Vs Kashi Ram” reported in 2007 SC 144, the Hon'ble Supreme Court has discussed the law u/s 106 Evidence Act and it has been observed that :''The provisions of section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person,

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the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held of have discharged his burden. If he fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible

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with his innocence, the court can consider

his failure to

adduce any explanation, as an additional link which completes the chain''. vii) In the case of “B.P. Sinha & others Vs. State of

Assam”, AIR 2007 SC 848, the Hon'ble Supreme Court observed that : “It is well settled that statement U/s. 313 Cr.P.C. cannot form the sole basis of conviction, but its effect thereof may be considered in the light of other evidences brought on record”.
10. Defence – if helpful?

i)

None of the accused persons except A-4 examined

any witness in defence to falsify the case of the prosecution and to establish his innocence. A-4 only examined DW1 Navin Budhiraja, elder brother of the deceased to prove letters Ex DW1/1 to DW1/58 written by the deceased to him. No other evidence was produced in defence to substantiate

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pleas taken by the accused persons in their statements recorded U/s 313 CrPC or to prove their defence put in the cross examination of material witnesses. ii) A-4 did not examine any witness to show that he

had no concern whatsoever with A-1 to A-3 or that only the deceased and her family members had authority to manage his all properties and none else had the authority to enter inside the farm house. A-4 did not claim if A-2 and A-3 were like his 'sisters' or that they used to tie Rakhi to him. A-2 and A-3 themselves did not claim that they were like 'sisters' of A4 or used to tie Rakhi to him. Rather prosecution has filed on record number of documents filed by A-2 and A-3 during their meetings with A-4 where they claimed themselves family friends of A-4. It is only in the testimony of a hostile witness PW16 Tiwari where he stated that A-2 and A-3 used to come along with A-4 at the firm house whenever there was a party and they used to tie Rakhi to A-4. However, PW16 Ram Achal

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Tiwari did not explain as to when and on what occasion A-2 and A-3 had tied Rakhi considering A-4 their brother. Nothing has come on record if this pious ritual is being observed till date. iii) The defence taken by A-5 to A-7 that murder was

hand-work of some unknown robbers holds no water. This defence theory is a complete hoax and incredible and falsely invented by them to escape from the guilt and the legal punishment and also to drift the course of investigation. iv) Accused persons except A-4 failed to produce on

record any evidence to show their presence at the relevant date at any other specific place. They did not bother to examine their family members to show their presence at their respective houses at the relevant time. They did not examine any witness from their place of work to ensure their presence there at the time of occurrence. v) There is thus no defence evidence on record on

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behalf of any of the accused persons to controvert positive testimonies of the prosecution witnesses. The accused persons thus have failed to substantiate their respective pleas taken in their statements recorded U/s 313 CrPC.
11. Arguments – no helpful

i)

I do not subscribe to the submission of Ld. defence

counsels for the accused persons that no reliance can be placed on the statement of PW15 Sunil Kumar, PW17 Hari Chand and PW28 Pawan Budhiraja. They have made vital improvements in their deposition before the court. I do agree with the contention of Ld. defence counsels for the accused persons that prosecution witnesses have made some improvements in their deposition before the court. All the facts deposed by them in their examination-in-chief do not find mention in their statements recorded U/s. 313 Cr.P.C. At the same time, I am also of the view that testimonies of all these witnesses can't be thrown away simply because some of the

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facts narrated by them before this court in their examinationin-chief are lacking in their statements recorded by the IO U/s. 161 Cr.P.C. The improvements pointed out by Ld. defence counsels for the accused persons are not fatal to the case of the prosecution as they do not go to the root of the case. It is not that all these prosecution witnesses have given entirely inconsistent, contradictory version before the court to make improvements regarding the names of the assailants / accused persons or the exact role played by accused in the commission of the incident. ii) In the case reported in “AIR 2003 Supreme Court

282”, the Hon'ble Supreme Court has observed that “evidence of interested witnesses otherwise credit worthy can't be discredited merely because it was not available in the statements U/s. 161 Cr.P.C”. iii) In the latest case of “State of Rajasthan Vs. Om

Prakash” reported in AIR 2007 S.C. 2257 Hon'ble Supreme

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Court has observed that, “irrelevant details which is no way corrode the credibility of a witness cannot be levelled as omissions or contradictions”. The Hon'ble Supreme Court observed that certain improvements in the version of the witnesses were of no consequence. iv) In the present case IO was not inquired in cross if

the prosecution witnesses were examined U/s 161 CrPC on the facts deposed by them in their examination in chief before the court. Simply because IO failed to record the detailed version of the prosecution witnesses given by them before the court, their otherwise reliable testimony cannot be thrown away. v) Regarding plea of ld defence counsel for non-

holding test identification parade in this case, in my view it has no serious effect. All these accused persons were known to the prosecution witnesses prior to the occurrence. PW 15 Sunil and PW17 Hari Singh were known to A-5 to A-7 on the

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day of incident and have named them in their statements. So much so names of A-5 to A-7 find mention in the statement Ex PW6/1 on the basis of which the present FIR was registered. More-over all these accused persons were identified by material prosecution witnesses during their deposition before the court. Identification Tests Parade do not constitute substantive evidence. In the latest case titled “Heera and others Vs. State of Rajasthan” reported in AIR 2007 S.C. 2425”, the Hon'ble Supreme Court observed that, “holding of test identification parade is not obligatory. Failure to hold parade would not make inadmissible evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration”. vi) It is true that PW 16 Ram Achal Tiwari, PW17

Deepak @ Chavi Dass and PW19 Dilbagh Singh have not

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substantiated the case presented by the prosecution. They have turned hostile. They were cross examined by ld. SPP for the state. At the same time, I am also of the considered view that merely because these witnesses have opted not to support the case of the prosecution, the entire case of the prosecution can't be thrown away. The court is to consider the evidence adduced on record by other prosecution witnesses and has to see if the prosecution is able to establish its case even after excluding the testimony of all these witnesses turned hostile. It is also settled law that evidence of a hostile witness can't be rejected in toto. In the case reported in “2003 AIR SCW 3953”, the Hon'ble Supreme Court has observed that :''the fact that witness was declared hostile by the court on the request of the prosecuting counsel and he was allowed to cross examine the witness, furnishes no justification for rejecting en block the evidence of the witness.

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His evidence is to be read and considered as a whole with a view to find out whether any weight should be attached to the same'' . vii) In the latest case, “Radha Mohan Singh and

another Vs. State of UP” reported in AIR 2006 SC 951, the Hon'ble Supreme Court reiterated and observed that :''it is well settled that the evidence of a prosecution witness can not be rejected in toto merely because the prosecution chosen to treat him as hostile and cross examined him. The evidence of such witness can not be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof ''.
12. Testimony of PW16 Ram Achal Tiwari

i)

Main emphasis of the Ld. defence counsels for the

accused persons is that since PW16 Ram Achal Tiwari, an alleged eye witness, has not supported the prosecution,

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benefit of doubt should go to these accused persons. PW16 Ram Achal Tiwari has completely demolished the storey presented by the State. I do not subscribe to this contention of the Ld. defence counsels for these accused persons. ii) It is true that PW16 Ram Achal Tiwari has turned not opted to support the prosecution on

hostile and has

material facts. He has denied to be present at the spot at the time of occurrence. He has denied stay of A-5 to A-7 inside the farm house. He has denied presence of the security guards including PW15 and PW17 at the farm house. He has denied if his blood stained shirt was seized by the police soon after the incident. He has further denied the contents of the statement Ex.PW6/A made by him to the police. iii) PW16 Ram Achal Tiwari has, however, admitted

some facts. He has admitted that he was working at the said farm house under A-4 for the last about five years till the date of incident. He has further admitted that he had given

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statement to the police with regard to this incident.

He

identified his signatures on Ex.PW6/1. He further admitted that he was manager and caretaker of the farm house and he used to look after everything in that farm house. He further stated that after associates of Subha Rao tried to forcible take the possession of farm house, he employed two private security guards for his security. PW16 Ram Achal Tiwari further admitted that he had given information to the police regarding murder of Kunjum at Chattarpur Mandir and on his information, the police had reached at the farm house. He further admitted that his statement was recorded at Jai Mata Di farm house and the same was Ex.PW6/1. He admitted that his shirt was seized by the police though he claimed that it was not blood stained He further admitted that A-2 and A-3 used to come to the farm house along with A-4. iv) This witness claimed his departure from the scene

of incident at the farm house after he was allegedly asked by

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deceased Kunjum to bring food for duck and dog. His plea is that on his return, he found deceased Kunjum to have been murdered. He expressed his inability to disclose as to who had committed her murder. v) The testimony of this witness, if scrutinized with the

other facts on record proved by other witnesses, reveals that this witness is not presenting true facts for obvious reasons. This witness was in employment with A-4 since long. To show his loyalty, he seems to have not supported the prosecution on material facts. At the same time, this witness can't be allowed to sabotage the case of the prosecution. There is no truth in the version given by this witness that he was not present inside the kothi at the time of commission of the offence. PW15 Sunil Kumar and PW17 Hari Chand have categorically asserted presence of this witness along with the deceased Kunjum inside the kothi when she had entered there after opening the lock of the key. This witness admitted

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regarding making statement on the day of incident. He also admitted his signatures on the statement Ex.PW6/1. The contents of this statement are in Hindi and the witness was well conversant in Hindi. At no stage prior to appearing as witness before the court on 28.08.01, this witness came up with the plea that contents of the statement Ex.PW6/1 were fabricated by the police of their own. This witness admitted that his shirt was seized by the police on the day of incident itself. This witness denied if his shirt was blood stained at that time. This version given by the witness on the face of it seems absurd. Police is not expected to get shirt of the witness and subsequently, put blood of the deceased over it. Other prosecution witnesses present at the spot categorically asserted that shirt of this witness when seized, was stained with blood. There is nothing to disbelieve the testimony of the other prosecution witnesses on this aspect. vi) PW27 Rani Budhiraja, mother of the deceased, who

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reached at the spot after the incident in her statement testified that shirt Ex.P1 was the same which Mr. Tiwari was wearing at that time. In the cross examination, the witness stated that she had told the police that she had seen blood stains on the clothes of Ram Achal Tiwari. vii) PW30 Vikram Singh who had reached at the spot

after the incident also deposed that he saw Ram Achal Tiwari, Caretaker of the farm house. He saw that his shirt was blood stained. This independent witness can't be disbelieved on this aspect. Other prosecution witnesses including IO have specifically deposed about the seizure of blood stained shirt Ex.P1 of this witness. There are no material contradictions in their cross examination to accept the version of the witness that the seized shirt was having no blood at the time of its seizure. viii) This blood stained shirt of the witness was sent to

FSL and as per FSL report, blood was detected on the shirt

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which establishes the presence of this witness at the spot. ix) This witness failed to impress if he was not present

at the spot at the time of occurrence. He did not show any proof if he had purchased any ration for dog and duck at the relevant time from any nearby shop. This witness did not explain as to how within a short span of his alleged absence, any outsider could enter the farm house in the presence of security guards at the farm house to commit the incident. The security guards rather came to know about the incident only through this witness when he went to inform the police.

PW19 Dilbagh gave different version about PW16 Ram Achal Tiwari and deposed that he was going with milk when he inquired from him about murder of Kunjum. x) Since PW16 Ram Achal Tiwari has given entirely

contradictory version in his testimony, he can't be considered reliable witness to support the accused persons on some facts regarding absence of A-5 to A-7 at the farm house. The

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version given by him is too artificial to be believed. xi) It is well settled that minor contradictions,

discrepancies, exaggerations

and improvements in the

testimony of the prosecution witnesses are not fatal to the case of the prosecution. xii) Failure or omission of IO cannot render prosecution

case doubtful or unworthy of belief. Faulty investigation can not alone be ground to acquit the accused. For fault of prosecution, perpetrators of a ghastly crime can't be allowed to go scot-free (AIR 2003 SC 660). xiii) Hon'ble Supreme Court in case “AIR 2004 S.C.

917” observed that, “even if there are irregularities or illegalities in the conduct of investigation consequence”. xiv) Non-recovery of weapon of offence in this case is that is of no

also not fatal to the case of the prosecution. Postmortem report reveals that death of the deceased took place due to

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infliction of number of injuries on her person by sharp edged weapon. Thus it can't be said that no weapon was used in the commission of the murder of the deceased merely because during investigation the police failed to recover the same. xv) Again non-recovery of weapon ie sickle did not go

to discredit the evidence of witness (AIR 2003 S.C. 825). 13.
i) CONCLUSION

Above

incriminating

circumstances

proved

on

record by the prosecution and in the absence of any rebuttal of the same, in my view, the prosecution has established commission of offence punishable U/s. 302 IPC by A-5 to A-7 along with their associates (not arrested) whereby they all in furtherance of their common intention committed gruesome murder of deceased Kunjam. ii) I am also of the view that the prosecution has

established cogent, reliable, unimpeachable circumstances from which inference can safely be drawn that all these

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accused persons except A-3 conspired to eliminate deceased Kunjam for different motives.
iii)

It is not required to elaborate law on conspiracy.

Hon'ble Supreme Court in the case reported in “Suresh Chandra Bahri Vs. State of Bihar”, 1994 Cr.L.J. (SC)

3271; has observed on criminal conspiracy as... “---------Thus, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence then in that event, no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in S 120B read with the proviso to sub sec (2) of Sec. 120A of the IPC, then in that event mere proof of an agreement between the

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accused for commission of such a crime alone is enough to bring about a conviction under S 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provision in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in S 120-B. Since from its very nature conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence available from which an inference giving rise to the

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conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn”. iv) ''Criminal conspiracy differs from other offences in

that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by S. 107, IPC. A conspiracy from its very nature if generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts . Surrounding circumstances and antecedent and subsequent conduct, among other factors,

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constitute relevant material in fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence relevant for proving both conspiracy and the offences committed pursuant thereto'' . v) Conspiracy is a clandestine activity. Persons

generally do not form illegal covenants openly. Conspiracy can rarely be shown by direct proof. The prosecution will often rely upon the evidence of acts of parties to infer that they were done in reference to a common intention. Offence of criminal conspiracy requires some kind of physical manifestation of agreement. The agreement however need not to be proved. No actual meeting of two persons is

necessary. Since an agreement of this kind can rarely be

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shown by direct proof it must be inferred from circumstantial evidence of co-operation between the accused. (“Ferozuddin Bashruddin Vs. State of Kerela” (V) 2001 SLT (SC) 880); vi) Judging the circumstances referred above and

proved on record by the prosecution, inference can safely be drawn from them that all the accused persons except A-3 entered into criminal conspiracy to commit murder of deceased Kunjam. Conspiracy was hatched by A-4 while

remaining behind the scene. He was the master mind of the ugly design. deceased. He was beneficiary in the elimination of the A-1 and A-2, trusted associates of A-4 made

every plan to execute his nefarious plan. They remained in touch with each other throughout the execution of the plan. A1 and A-2 actively participated in getting the plan succeeded. A-5 to A-7, a band of muscle men along with their associates actually executed the plan in committing murder of the deceased in pursuance of the criminal conspiracy.

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vii)

No other inference compatible with the innocence of accused persons can be drawn from the

all these

circumstantial evidence proved on record by the prosecution. The circumstances from which the conclusion of the guilt of these accused persons has been drawn have been fully established. The circumstances are of conclusive nature and tendency. They exclude every possible hypothesis except the guilt of all these accused persons. The circumstances form a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and show that in all human probability the murder of the deceased was done by A-5 to A-7 in pursuance of the conspiracy hatched by all these accused persons except A-3. viii) Regarding A-3, I am of the view that the chain so

complete qua other accused persons has broken. The circumstances proved above point an accusing finger showing the involvement of A-3 but are not sufficient to establish guilt

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against her. It is well settled law when there is a break in link, the chain of circumstances get snapped and the same can not in any manner establish the guilt of the accused (AIR 1997 S.C. 2193). In the present case against A-3, the prosecution from the very beginning did not attribute any serious motive to A-3 for hatching conspiracy to eliminate the deceased. Prosecution had alleged against A-2 only that she intended to marry A-4. The prosecution before the court did not establish strong motive of A-3 to join conspiracy with other accused persons. In the letter Ex. PW27/B, the deceased did not

exhibit serious grievance against A-3. She only complained about A-2 to be claiming herself as Mrs. Sharma. circumstance of strong motive is lacking against A-3. ix) A-3 was not a frequent visitor to A-4 as A-1 and A-2 So

were. Even on 19/3/1999 one day prior to the incident only A-1 and A-2 had met A-4 in jail. A-3 had not met A-4 in jail on 19/3/1999. On other dates also A-3 was not a frequent visitor.

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x)

There is no evidence on record if A-3 remained in

constant touch with A-1 or A-2 after the commission of the incident. No mobile phone of A-3 was seized in this case. No printouts of the call details of the mobile phone of A-3 were collected. So there is nothing on record to show if A-3

remained in constant touch with other accused persons after the commission of the incident or soon before the incident. xi) Mere visits of A-3 to A-4 along with A-1 and A-2 on

some occasions in jail and mere visits of A-3 along with A-2, her sister, at Jai Mata Di farm house on the day of incident, the only circumstances proved against her, in my view, are not enough to infer involvement of A-3 in the commission of offence or in hatching of the conspiracy. deserves benefit of doubt in this case.
14. RESULT

A-3 in my view

i)

In view of my discussion above, accused Hem Chand

@ Nani (A-5), Sant Ram (A-6) and Ramesh @ Bobby @

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Rajesh @ Ajay @ Raju (A-7) are held guilty for the commission of the offences punishable U/s. 120B IPC and u/s 302/34 IPC and are convicted accordingly. ii ) Surinder Mishra (A-1), Tejinder Virdi @ Dolly (A-2)

and Romesh Sharma (A-4) are held guilty and convicted for the commission of the offence punishable u/s 120B/302 IPC. iii) Benefit of doubt is given to Jaspreet Virdi @ Sonu

(A-3) and she is acquitted in this case.

Announced in the open court on 15/02/08

Additional Sessions Judge New Delhi

Present case received on allocation – 05.08.1999 Case reserved for orders – 30.01.2008 Date of conviction – 15.02.2008 **********

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IN THE COURT OF SHRI S. P. GARG : ADDL. SESSIONS JUDGE : NEW DELHI Sessions case No.14/1999 State Vs. (1)Surinder Mishra (A-1) S/o Sh. Bhagwan Dass Mishra R/o E 279, Sec. 15 Noida (UP) (2)Tejinder Virdi @ Dolly(A-2) D/o Sh. Mahender Singh R/o B-22, Suraj Mal Vihar, Delhi (3)Romesh Sharma (A-4) S/o Sh. Satya Narain R/o C-30, Mayfair Garden, New Delhi (5)Hem Chand @ Nani (A-5) S/o Sh. Raja Ram R/o P-I/130, Mangol Puri, New Delhi (6)Sant Ram (A-6) S/o Sh. Ram Ganesh R/o P-6/75, Mangolpuri, New Delhi (7)Ramesh @ Bobby @ Rajesh @ Ajay @ Raju (A-7) S/o Sh. Munna Lal R/o Q-2/22, Mangolpuri, New Delhi FIR No. 188/99 U/s.120B/302 IPC & 302/34 r/w.120B IPC PS Mehrauli

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St. Vs Surinder Mishra etc.

1.

I have heard the convicts on the point of sentence.

Convicts have prayed to take lenient view. 2. Ld. Special PP for the State has argued that it is a

case where extreme penalty of death is to be awarded to Romesh Sharma (A-4) who hatched criminal conspiracy with an ulterior motive to get deceased Kunjum murdered. He also prayed to award death penalty to Hem Chand @ Nani (A-5), Sant Ram (A-6) and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju (A-7) as they actually committed murder of the deceased. 3. Ld. defence counsels for the convicts have argued

that it is not a case where extreme penalty of death is to be awarded to any of the convicts. It is not one of the rarest of rare cases. 4. I have considered the prayer of Ld. Special PP for

the State and Ld. defence counsels for the convicts and have

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gone through the file. On perusal of the file, it reveals that the offence committed by the convicts is highly shocking and atrocious. Convict A-4 exploited the innocence of an unsuspecting victim who used to have devotion, love and affection for him and used to pray for his early release. Convicts for no fault of the deceased brought an end to a young life. Court can well understand the trauma of parents and other relations of the deceased whose life was cut short by the convicts. On that account, convicts deserve no leniency. 5. At the same time, I am also of the view that it is not

one of the rarest of rare cases where extreme penalty of death is to be awarded to the convicts. The case of the prosecution is based upon circumstantial evidence. In the latest case “Bishnu Prashad Sinha and Another Vs. State of Assam AIR 2007 SC 848, the Hon'ble Supreme Court has observed :

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“..... but it must be borne in mind that appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the preposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded......” 6. In the present case also, the case of the

prosecution is based only on circumstantial evidence. 7. There are other mitigating circumstances also not to

award death penalty to the convicts. None of these persons is a previous convict. No previous conviction of any of the

convicts has been proved on record. The convicts have suffered trial in this case for more than nine years and except A-2, all have remained in J/c since then. 8. There are six convicts. A-3 who was arraigned as

accused in this case has already been acquitted. Some of the associates of the convicts could not be arrested till date. Role of the absconding associates of the convicts is uncertain.

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There is no material to bifurcate the role of the convicts in the commission of the offence. 9. After considering the guidelines laid down in the

case of “Bachan Singh (AIR 1980) SC 898” and “Machi Singh AIR 1983 SC 957”, I am of the considered view that it is not one of the rarest of rare cases where extreme penalty of death is to be awarded to any of the convicts. 10. In the case reported in “State of Madhya Pradesh

Vs. Santosh Singh” AIR 2006 SC 2648, the Hon'ble Supreme Court has given an instance to award either sentence : “Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given

circumstances in each case, the nature of the crime, the

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manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deepseated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence”. 11. It is also well settled that if two views are possible

then the benefit should go to the convicts in awarding the life sentence. In the case reported in AIR 2001 SC 1903, it was observed that, “when two views are possible about quantum of sentence, a view which favours the grant of life in comparison of death is generally accepted”. 12. In the case of “Om Prakash Vs. State of Haryana

AIR 1999 SC 1332”, the Hon'ble Supreme Court observed

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that : “there are numerous other circumstances justifying the passing of the lighter sentence as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3) judges should never be bloodthirsty”. 13. Considering all the facts and circumstances of the

case; the age of the convicts; the role played by each one of them in the commission of the offence; the period of their detention in jail; the period during which they suffered trial in this case; the factum that none of the accused persons has been proved to be a previous convict; the factum that none of

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the convicts is involved in any other organized criminal activity; their liability to maintain their families and similar other circumstances on record, I am of the considered view that ends of justice would be met if they all are sentenced to undergo imprisonment for life with reasonable fine. 14. Accordingly, Surinder Mishra (A-1) is sentenced to

undergo imprisonment for life with fine of Rs. 5000/- and failing to pay the fine, to undergo SI for three months for the commission of the offence punishable U/s.120B/302 IPC. 15. Tejinder Virdi @ Dolly (A-2) is sentenced to

undergo imprisonment for life with fine of Rs. 5000/- and failing to pay the fine, to undergo SI for three months for the commission of the offence punishable U/s.120B/302 IPC. 16. Romesh Sharma (A-4) is sentenced to undergo

imprisonment for life with fine of Rs. 50,000/- and failing to pay the fine, to undergo SI for six months for the commission of the offence punishable U/s.120B/302 IPC.

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17.

Hem Chand @ Nani (A-5) is sentenced to undergo

imprisonment for life with fine of Rs. 1000/- and failing to pay the fine, to undergo SI for one month for the commission of the offence punishable U/s.302/34 r/w. Section 120B IPC. 18. Sant Ram (A-6) is sentenced to undergo

imprisonment for life with fine of Rs. 1000/- and failing to pay the fine, to undergo SI for one month for the commission of the offence punishable U/s.302/34 r/w. Section 120B IPC. 19. Ramesh @ Bobby @ Rajesh @ Ajay @ Raju (A-7)

is sentenced to undergo imprisonment for life with fine of Rs. 1000/- and failing to pay the fine, to undergo SI for one month for the commission of the offence punishable U/s.302/34 r/w. Section 120B IPC. 20. No separate punishment is being awarded to A-5 to

A-7 for the commission of the offence punishable U/s. 120B IPC as they have already been sentenced for major offence U/s. 302/34 IPC.

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21.

Copy of the judgment be given free of cost to each

of the convicts. File be consigned to record room.

Announced in the open court on 18.02.2008 Additional Sessions Judge New Delhi

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