Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 1 of 183 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : 21st July, 2009 Judgment Delivered on: August 27, 2009 + CRL.A. 19/2007 RAKESH KUMAR & ORS. ..... Appellants Through: Mr. M.L.Yadav, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CRL.A. 51/2007 SHARDA JAIN & ANR. ..... Appellants Through: Mr. R.N.Mittal, Sr.Advocate with Mr. Tanveer A.Mir, Advocate and Mr. Manoj Kumar, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CRL.A. 121/2007 PUSHPENDER ..... Appellant Through: Mr. Rajpal Singh, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CRL.A. 139/2007 ROSHAN SINGH ..... Appellant Through: Mr. R.N.Mittal, Sr.Advocate with Mr. Tanveer A.Mir, Advocate and Mr. Ashutosh Bhardwaj, Advocate versus STATE ..... Respondent Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 2 of 183 Through: Ms. Richa Kapoor, Advocate CRL.A. 144/2007 RAJINDER @ RAJESH @ RAJU ..... Appellant Through: Mr. Rakesh Kumar, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CRL.A. 65/2007 NIRVIKAR @ DOCTOR ..... Appellant Through: Mr. D.B.Goswami, Advocate versus STATE ..... Respondent Through: Ms. Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Atma Ram Gupta (hereinafter referred to the “Deceased”), a member of the Indian National Congress, was a Councillor of the Municipal Corporation of Delhi, having been elected from Ward No.27, Tri Nagar, Delhi, in the Elections held in February 2002. Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 3 of 183 2. At 10:15 AM on 24.8.2002 he left his residence in an Indica Car bearing registration No.DL 6SA 0025 owned by him, which was driven by his driver Prabhu Yadav PW-17. While leaving the house he told his wife Sumitra Gupta PW-18, that he was going to attend a rally organized by the Congress Party at Firozshah Kotla Grounds Delhi. 3. He did not return to his residence till late evening and could not be contacted on his mobile phone since the same was switched off. His wife got worried. She contacted the younger brothers of Atma Ram Gupta as also her children and apprised them of the situation. The children of Atma Ram Gupta as also his younger brothers came to his residence and made inquiries from persons who were in contact with Atma Ram Gupta during the day. They could not ascertain the whereabouts of Atma Ram Gupta till midnight and thus Rajinder Pal Gupta PW-9, the younger brother of Atma Ram Gupta, lodged a missing person report at PS Keshav Puram. HC Ashok Kumar PW-6, recorded DD No.31, Ex.PW-6/A at 1:00 AM on 25.8.2002 in which it stands recorded that on 24.8.2002 at about 10:30 AM Atma Ram Gupta left his residence in his white coloured Indica Car bearing registration No.DL 6SA 0025 which was driven by the driver Prabhu Yadav and that he went to the residence of Sharda Jain, a Member of Indian National Congress and also a Municipal Councillor from Keshav Puram Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 4 of 183 Ward New Delhi. That on reaching the residence of Sharda Jain, Atma Ram sent back his car with the driver and thereafter, in the company of Sharda Jain and another person, Atma Ram Gupta left the residence of Sharda Jain in an Indica Car bearing registration No.DL 3SAB 0016 belonging to Sharda Jain, which was driven by Prakash Chauhan the driver of Sharda Jain and they left for Firozshah Kotla grounds to attend a rally. When Atma Ram Gupta did not return home till evening his family members contacted Sharda Jain who told them that Atma Ram Gupta had accompanied her to the rally held at Firozshah Kotla grounds and attended the same for sometime. Leaving the venue of the rally the said four persons proceeded in the car of Sharda Jain towards ring road and at a red light near Jamuna Bazar, Hanuman Mandir, opposite Nigam Bodh Ghat the driver of Sharda Jain got down from the car as he was not feeling well. The unidentified person started driving the car. Sharda Jain further told them that after some time Atma Ram Gupta got down from her car. 4. On 25.8.2002 itself, Inspector Shiv Raj Singh PW-55, recorded the statement, Ex.PW-62/DB, of Sumitra Gupta PW- 18, as also the statement Ex.PW-9/C of Rajinder Pal Gupta PW- 9, the younger brother of Atma Ram Gupta. 5. In her statement, Ex.PW-62/DB, Sumitra Gupta stated that on 24.08.2002 at about 10.15 A.M. her husband Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 5 of 183 left his residence in his Indica car bearing registration no.DL 6SA 0025 being driven by his driver Prabhu Yadav. Before leaving the house, her husband told her that he would first go to the house of Sharda Jain and thereafter would proceed to a rally along with Sharda Jain. She further stated that while leaving the house her husband was wearing a watch in his right hand as also a gold ring on his finger, on which letters 'AR' were engraved and was also carrying a mobile phone, some cards and documents. After some time Prabhu Yadav returned to the house and told her that he had dropped her husband at the residence of Sharda Jain and that Atma Ram Gupta told him to take back the car to the house because he would go to the rally in the car of Sharda Jain. When her husband did not return home till evening she contacted Sharda Jain over the telephone to enquire about the whereabouts of her husband and Sharda Jain informed her that her husband did not accompany her to the rally. 6. In his statement Ex.PW-9/C, Rajinder Pal Gupta PW- 9, stated same facts which were already recorded in DD No.31, Ex.PW-6/A. 7. On the next day i.e. 26.08.2002, Inspector Shiv Raj Singh PW-55, recorded the statement Ex.PW-11/DA of Om Parkash, the driver of Sharda Jain, and the statement Ex.PW- 10/A of the mother of Om Parkash; namely, Shanti PW-10. Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 6 of 183 8. In his statement Ex.PW-11/DA, Om Parkash stated that he had driven Sharda Jain and Atma Ram Gupta in the car of Sharda Jain to the venue of the rally at Firozshah Kotla Grounds and that another person named Rajesh @ Raju was also in the car. From the venue of the rally they all left and he drove the car towards ring road. When the car reached the red light near Hanuman Mandir at Jamuna Bazar, Nigam Bodh Ghat, since he was not feeling well, he got down from the car and Rajesh started driving the car. He further stated that Raj Kumar the brother of Sharda Jain, Rajesh @ Raju and a person named Roshan Singh Pradhan had visited the house of Sharda Jain 8-10 days prior to 24.8.2002 and he saw them again in the house of Sharda Jain on 22.8.2002. He heard suspicious talks between Roshan Singh and Sharda Jain. He further disclosed that in the night of 24.8.2002 Sharda Jain had visited his house and had told him not to divulge to anyone that Atma Ram Gupta was in her company in the morning of 24.8.2002. 9. In her statement Ex.PW-10/A, Shanti PW-10, the mother of Om Prakash, stated that Sharda Jain visited their house in the night of 24.08.2002 and asked her son Om Parkash not to divulge to anyone that Atma Ram Gupta was in her company in the morning. 10. On 26.08.2002, Inspector V.S.Meena PW-62, took over the investigation of the case. Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 7 of 183 11. The fact that the deceased was present in the company of Sharda Jain and Rajinder @ Rajesh @ Raje @ Raju on the day he went missing; that Sharda Jain, Rajinder @ Rajesh @ Raje @ Raju, Raj Kumar @ Raju and Roshan Singh were meeting each other few days before the deceased went missing and that something fishy was being discussed in the meetings between Sharda Jain, Raj Kumar, Roshan Singh and Rajinder, the said persons became suspects. 12. On 27.08.2002 Inspector V.S.Meena PW-62, accompanied by Inspector Shiv Raj Singh PW-55, SI Anil Kumar PW-44 and HC Sunita PW-31, went to the residence of Sharda Jain and arrested her at 01.00 P.M. as recorded in the arrest memo Ex.PW-31/A. On interrogation by Inspector V.S.Meena PW-62, in the presence of Inspector Shiv Raj Singh PW-55, Anil Kumar PW-44 and HC Sunita PW-31, Sharda Jain made a disclosure statement Ex.PW-31/D wherein she disclosed that she hatched a conspiracy with her brother Raj Kumar and two other persons; namely, Roshan Singh and Rajinder to murder the deceased and that pursuant to the conspiracy the deceased was taken to village Chajjupur on 24.8.2002 in her car. Two hired assassins shot him as per plan when the deceased was led to village Chajjupur. That she could take the police and show the place where the deceased was murdered. Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 8 of 183 13. After she was arrested, Sharda Jain produced one mobile phone having number 9811508688. The phone along with the SIM card were seized vide memo Ex.PW-31/C. Indica car bearing registration No.DL 3SAB 0016 was parked outside the residence of Sharda Jain. It was searched. One pair of molded P.O.P. denture set on which name of Dr.S.C.Rajput was engraved; four invitation cards dated 24.08.2002 one of which had the name of the deceased written thereon and two labels for parking of the car at Firozshah Kotla ground were recovered and hence seized vide memo Ex.PW-44/C. Mud was found sticking on the right rear tyre of the said car. The same i.e. the tyre was seized vide memo Ex.PW-44/C1. 14. When aforenoted events were transpiring in the house of Sharda Jain, Raj Kumar the brother of Sharda Jain came there and tried to slip away on seeing the police. However, he could not manage to escape and was arrested at 3 P.M. as recorded in the arrest memo Ex.PW-44/A. On being interrogated by Inspector V.S.Meena PW-62, in the presence of Inspector Shiv Raj Singh PW-55 and SI Anil Kumar PW-44, Raj Kumar made a disclosure statement Ex.PW-44/O wherein he disclosed that he was a party to the conspiracy with Sharda Jain and two other persons; namely, Roshan Singh and Rajinder to murder the deceased and that two other persons; namely, Pushpender and Nirvikar were the hired assassins who Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 9 of 183 fired shots at the deceased in pursuance of the said conspiracy. He stated that he could lead the police to the place and identify the same, where the deceased was murdered. He further disclosed that he had removed the wrist watch of the deceased and could get the same recovered. 15. Pursuant to their respective disclosure statements, Sharda Jain and Raj Kumar led the police party consisting of Inspector V.S.Meena PW-62, HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55 to a Dak Bangla near a Rajwaha (minor canal) situated behind village Chajjupur, U.P. and vide pointing out memos Ex.PW-44/D and Ex.PW-44/E both of them, at the same time, pointed out a spot and stated that the said spot is the place where the deceased was murdered. 16. On a thorough investigation of the place pointed out by accused Sharda Jain and Raj Kumar, the earth therein was found to be stained with blood at three different spots. SI Ram Kumar PW-32, lifted the portions of the earth stained with blood as also the earth control and seized the same vide memo Ex.PW-44/F. Thereafter the control mud/soil at the place in question was lifted and seized vide memo Ex.PW-44/G. Inspector V.S.Meena PW-62, prepared the site plan Ex.PW-62/B of the spot in question; recording therein at points „A‟, „B‟ and Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 10 of 183 „C‟, the spots where the earth was found to be stained with blood and samples lifted. 17. SI Manohar Lal PW-29, a draftsman and HC Sajjan Kumar PW-33 a photographer were summoned. SI Manohar Lal prepared the site plan to scale Ex.PW-29/A of the place in question, at the instance of Inspector V.S.Meena. HC Sajjan Kumar took five photographs Ex.PW-33/A to Ex.PW-33/E of the place in question; negatives whereof are Ex.PW-33/A1 to Ex.PW-33/E1. 18. Thereafter accused Raj Kumar led the police party consisting of Inspector V.S.Meena PW-62, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55, to his residence at village Gulawati, District Bulandshar, UP and recovered a wrist watch of make „Citizen Quartz‟ with a gold chain from behind a speaker kept at a ventilator in the balcony of his house and the same was seized vide memo Ex.PW-44/H. The said watch was deposited in the Malkhana on the date of its recovery itself i.e. 28.08.2002 as recorded vide entry No.1560 entered by HC Dinesh Kumar PW-43, in the Store-Room Register (Part I). 19. Attempts made to locate the dead body of Atma Ram Gupta failed till 31.08.2002, when around 5 A.M. on 31.8.2002, Ram Kumar PW-22, an agriculturist and resident of village Deher Ki Madia, Bulandshar, UP saw a dead body of a Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 11 of 183 male person lying in a sub-canal of the canal known as „Bulandshar Rajwaha/Sanota Canal‟. Ram Kumar apprised the police officials. Since the body found in the canal appeared to be that of the deceased, the police called the relatives of the deceased for the purposes of the identification of the said body. Rajinder Pal Gupta PW-9, Ved Prakash Gupta PW-15, Rajpal Gupta PW-16, brothers of the deceased and Mahender Pal Gupta PW-8 and Amrit Lal Singhal PW-37, friends of the deceased, identified the body found in the canal as that of the deceased. 20. Since the body of the deceased was found within the jurisdiction of Police Station Gulawati, UP, the police officials of the said police station were joined in the recovery. Inspector V.S.Meena PW-62, informed the duty officer of PS Gulawati by way of a written application Ex.PW-62/C about the recovery of the body of the deceased based whereon Const.Lalit Kumar PW-60, prepared DD Entry Ex.PW-60/B at 5.00 A.M. on 31.08.2002. Taking along a copy of the afore- noted DD Entry, SI Rambir Singh PW-61, reached the canal, lifted the earth from near the canal and water oozing out from the body of the deceased and seized the same vide Ex.PW- 23/A. SI Rambir Singh also prepared inquest report Ex.PW-61/A and other documents pertaining to the recovery and conduct of post-mortem of the deceased. Inspector V.S.Meena PW-62, Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 12 of 183 prepared the rough site plan Ex.PW-62/D of the place of the recovery of the body of the deceased; recording therein at points „A‟ and „B‟ the spots where the body of the deceased was found stuck in the heap of garbage in the canal and where the body was kept after being taken out from the canal. HC Sajjan Kumar PW-33, photographer, reached the said place and took the photographs Ex.PW-33/X1 to Ex.PW-33/X12 of the body of the deceased and the place of the recovery of the said body; negatives whereof are Ex.PW33/X1A to Ex.PW-33/X12A. (It may be noted here that the photographs Exhibits PW-33/X1, PW-33/X7, PW-33/X8, PW-33/X9, PW-33/X10 and PW-33/X11 are the photographs of the body of the deceased whereas the photographs Exhibits PW-33/X2, PW-33/X3, PW-33/X4, PW- 33/X5 PW-33/X6 and PW-33/X12 are the photographs of the place of the recovery of the dead body of the deceased) Ravinder Singh PW-23 and Jai Chand PW-26, public persons, witnessed the investigation conducted at the place in question and preparation of the memos as also the other documents prepared by the police in connection with recovery of the body of the deceased. 21. Thereafter the body of the deceased was sent to the mortuary at District Hospital, Bulandshar, where Dr.S.K.Aggarwal PW-21 and Dr.M.M.Aggarwal conducted the post-mortem of the deceased at 2.30 P.M. on 31.08.2002 and Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 13 of 183 prepared the post-mortem report Ex.PW-21/A which records following ante-mortem injuries on the person of the deceased:- “1. Firearm wound of entry 1.0 cm x 1 cm x cavity deep on right side forehead 2.0 cm above lateral end of right eye brow, margins inverted. 2. Firearm wound of exit 2.0 cm x 3.5 cm x cavity deep on left side of head 1.0 cm above left ear. On exploration, injuries nos.1 and 2 found communicating with each other. Margins inverted. 3. Abraded contusion 2.5 cm x 1.5 cm above top of head.” 22. The relevant portion of the external examination of the deceased recorded in the post-mortem report Ex.PW-21/A reads as under:- “…Skin peeled off at places, scalp hair loose and easily detachable. Body covered with mud at places. Skin of hands and feet (soles) wrinkled. Foul smell present. Face scrotius and penis swollen.” 23. The post-mortem report further records that the brain of the deceased was in a liquefied state; that the small intestine was contain gases; that the death was caused due to coma, shock and haemorrhage as a result of ante-mortem injuries found on the person of the deceased and that the death of the deceased had taken place about one week prior to the conduct of the post-mortem. 24. After the post-mortem, the doctors handed over the clothes and artificial teeth, six in number; viscera of the deceased; vial of sample of preservative used for preserving Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 14 of 183 the viscera of the deceased and one sample seal to SO of PS Gulawati. HC Ajay Pal PW-4, handed over the afore-noted materials as also the materials seized vide memo Ex.PW-23/A; namely, earth lifted from near the canal and water which had oozed out from the body of the deceased; the post-mortem report and its copies and the inquest papers to Inspector V.S.Meena PW-62, vide memo Ex.PW-4/A. 25. Since accused Roshan Singh could not be located in his house, the police flashed a wireless message, Ex.PW-55/A, to all SSP‟s and DCP‟s in India to search for Roshan Singh and a Maruti 800 car bearing registration No.DDU 1371 owned by him. Proceedings were initiated to declare him a proclaimed offender. 26. Attempts were made to trace Pusphpender and Nirvikar. On 6.9.2002, Inspector Ram Chander PW-20, along with other police officials was present near PS Tappal, District Aligarh when a secret informer informed him that accused Pushpender is staying in the house of his relative situated at village Bharatpur. Inspector Ram Chander PW-20, sent the aforesaid information to Police Station Keshav Puram, where DD No.11, Ex.PW-62/E, was recorded at 3.20 P.M. noting the said information. Thereafter Inspector Ram Chander proceeded to village Bharatpur and apprehended Pushpender from a road in the village. Inspector V.S.Meena accompanied Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 15 of 183 by SI Sukaram Pal PW-39 and SI Anil Kumar Chauhan PW-44, reached village Bharatpur and formally arrested accused Pushpender at 7.30 P.M. as recorded in the arrest memo Ex.PW-20/A. 27. The personal search of Pushpender resulted in the recovery of Rs.44/- and one I-Card issued in the name of the deceased by All India Crime Prevention Organization and the same were seized vide memos Ex.PW-20/B and Ex.PW-20/C respectively. On being interrogated by Inspector V.S.Meena PW-62, in the presence of SI Sukaram Pal and SI Anil Kumar PW-44, Pushpender made a disclosure statement Ex.PW-20/D wherein he disclosed that he had fired a shot at the deceased in pursuance of a conspiracy to murder the deceased. 28. On 17.09.2002 Inspector Ram Chander PW-20, telephonically informed duty officer at PS Keshav Puram that accused Nirvikar who was granted bail in connection with FIR bearing no.250/01 registered against him and had got his bail cancelled and is lodged in Aligarh Jail, based whereon, DD No.7A Ex.PW-62/F, was recorded at 10.45 A.M. noting the same information. On receipt of said information, Inspector V.S.Meena PW-62, proceeded to Aligarh, where after filing an application and getting permission from the District Judge, Aligarh, he obtained the custody of accused Nirvikar and Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 16 of 183 formally arrested him at 01.00 A.M. on 18.09.2002 as recorded in the arrest memo Ex.PW-39/A1. 29. On interrogation by Inspector V.S.Meena PW-62, in the presence of SI Sukaram Pal PW-39, accused Nirvikar made a disclosure statement Ex.PW-39/A, wherein he disclosed that the shot which caused the death of the deceased was fired by him. Additionally, he stated that he can point out the place where the deceased was murdered and the residence of accused Roshan Singh and can also get recovered the country made pistols used for committing the murder of the deceased. Pursuant to his disclosure statement, Nirvikar led the police party consisting of Inspector V.S.Meena PW-62 and SI Sukaram Pal PW-39, to a Dak Bangla near a Rajwaha which was situated behind village Chajjupur, U.P. and vide pointing out memo Ex.PW-39/B pointed out a spot and stated that said spot is the place of the murder of the deceased. (It may be noted here that the said spot is the same which was told by accused Sharda Jain and Raj Kumar as the spot where the murder of the deceased was committed i.e. the spot was already known to the police). Thereafter, he led the afore-noted police officials to the residence of his brother-in-law situated at village Chajjupur and got recovered an I-card issued in the name of the deceased by ISCKON, from underneath a trunk, which was seized vide memo Ex.PW-39/C. (It may be noted Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 17 of 183 here that in the disclosure statement Ex.PW-39/A made by accused Nirvikar he has not made any mention of any I-card or of the fact that he can get one recovered). 30. On the basis of secret information, the police party, consisting of Inspector V.S.Meena PW-62, SI Anil Kumar Chauhan PW-44 and SI Sukaram Pal PW-39, arrested accused Rajinder Singh at a bus stand situated at JJ Colony, Wazirpur, Delhi, at 8.30 P.M. on 30.09.2002 as recorded in the arrest memo Ex.PW-44/J. On being interrogated by Inspector V.S.Meena PW-62, in the presence of SI Sukaram Pal and SI Anil Kumar PW-44, Rajinder Singh made a disclosure statement Ex.PW-39/E, wherein he disclosed that he hatched a conspiracy with Sharda Jain, Raj Kumar, Roshan Singh and Rajinder to murder the deceased and that two unknown persons fired shots at the deceased in pursuance of the said conspiracy. Pursuant to his disclosure statement, Rajinder Singh led the police party consisting of Inspector V.S.Meena PW-62 and SI Sukaram PW-39, to a Dak Bangla near a Rajwaha which was situated behind village Chajjupur, U.P. and vide pointing out memo Ex.PW-39/G pointed out a spot and stated that spot is the place of the murder of the deceased. Thereafter he led the afore-noted police officials to the residence of Sharda Jain and vide pointing out memo Ex.PW- 39/F pointed out the said house as the place where the Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 18 of 183 conspiracy to murder the deceased was hatched. (It may be noted here that the said places were already in the knowledge of the police). 31. On 01.10.2002, Inspector V.S.Meena PW-62, filed an application Ex.PW-62/H before the court of Metropolitan Magistrate for conduct of Test Identification of Rajinder. Rajinder refused to participate in the TIP proceedings on the ground that he is known to the witnesses. Said fact was recorded in the record Ex.PW-40/A pertaining to the TIP proceedings. 32.