Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 1 of 21 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.A.10685/2008 (delay) in CRL.REV.P. 497/2008 & CRL.M.A.10683/2008 Reserved on : 29th April 2009 Decision on : 29th May 2009 SALONI ARORA ..... Petitioner Through: Mr. D.S.Kohli, Advocate. versus STATE ..... Respondent Through: Mr. Sanjay Lao, APP. BAIL APPLN. 1169/2008 DEEPAK SINGH ..... Petitioner Through: Mr.B.S.Rana with Mr.Amit Ahlawat and Mr. Raj Singh, Advocates. versus STATE ..... Respondent Through: Mr. Sanjay Lao, APP. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes JUDGMENT 29.05.2009 S. Muralidhar,J. CRL.M.A.10685/2008(delay) For the reasons stated therein, the application for condonation of delay is allowed and the delay in re-filing the revision petition stands condoned. The application stands disposed of. Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 2 of 21 Crl. Rev. P. No. 497/2008 & Bail Appln. No.1169/2008 1. Criminal Revision Petition No. 497 of 2008 by Saloni Arora is directed against the order dated 22nd November 2007 passed by the learned Additional Sessions Judge (ASJ) Delhi holding that offences under Sections 120-B/364/365/302/201 IPC are prima facie made out against the accused persons in FIR No.133 of 2006 registered at P.S: Anand Vihar. In addition, it was held that the offences punishable under Section 25/27 of the Arms Act were also made out against the accused Deepak, the offence under Section 411 IPC was also made out against accused Jeetender, and the offence punishable under Section 182 IPC was also held to be made out against the petitioner Ms. Saloni Arora. 2. Bail Application No. 1169 of 2008 is by Deepak Singh seeking regular bail in the same case. He has been in judicial custody since 3rd September 2006. 3. The case of the prosecution is that Shri Sahab Singh s/o Shri Bode Singh, resident of House No. 32/91 Gali No.10, Bhikam Singh Colony, Delhi informed the police that his brother-in-law Shailender Singh who was taking coaching from the I.I.H.T. Computer Institute, Gali No.11, Hargovind Enclave, Delhi and residing with him had gone to the Institute on the morning of 12th June 2006 but had not returned till 15th June 2006. The case was registered at P.S. Anand Vihar. On 21st June 2006 Sahab Singh made a supplementary statement that on 11th June 2006 two to three calls received on mobile Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 3 of 21 phone No. 9873288984 (maintained by Sahab Singh) from two other mobile phone Nos. 9818391164 and 9811117235. When Sahab Singh enquired from Shailender Singh about the calls, the latter informed him that these were from Jitender Singh, r/o Aligarh and Saloni Arora, the petitioner herein. Shailender Singh is supposed to have further informed Sahab Singh that on 12th June 2006 he would go along with Jitender, Deepak and Adesh Chaudhary to Hapur. On 12th June 2006 Shailender Singh made a call to Sahab Singh’s house informing that he was in the company of above said persons and would return to home late. In a supplementary statement Sahab Singh informed the police that Prahlad Singh his brother-in-law had informed him that Shailender Singh was in love with a girl named Deepshikha @ Gudiya d/o Satbir Singh, r/o Aligarh (UP) and wanted to marry her. The family of Deepshikha was not in favour of this marriage and this fact was informed by her to Prahlad Singh on phone. Deepak is a co-accused and petitioner in Bail Appln. No.1169 of 2008 and cousin brother of Deepshikha. Jitender is her brother. Sahab Singh suspected that Deepak and Jitender Singh, both residents of Aligarh, Adesh Chaudhary, r/o Ghaziabad and Smt. Neera, the second mother of Deepak, a resident of Delhi had kidnapped Shailender Singh. Non-bailable warrants for the arrest of Deepak, Jitender and Adesh Chaudahry were obtained from the court. 4. On 16th July 2006, Jagdish Prasad, father of Shailender Singh handed over a photocopy of a letter of recovered from the bag of Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 4 of 21 Shailender Singh to Head Constable (HC) Rakesh Bhati of P.S: Anand Vihar. This letter was addressed to the District Magistrate, Aligarh by Deepshikha @ Gudiya in which she narrated the entire story of her being in love with the Shailender Singh and that both of them were receiving threats from her family members and feared that her maternal uncle Tejvir Singh @ Guddu who was a desperate criminal would kill both of them. 5. The investigation of the case was subsequently transferred to a Special Cell, Lodhi Colony. The statements of Sahab Singh, Prahlad Singh and Jagdish Prasad were recorded. Prahlad Singh told the police that on 14th June 2006 Deepshikha called on mobile Nos. 9873288984 and 9873404088 stating that Shailender Singh had been abducted by her brother Jitender, Deepak (her mama’s son and cousin) and Adesh Chaudhary. The call details of the mobile numbers of the suspected persons were examined. 6. On 3rd September 2006 on receiving secret information, a raid was conducted in Agra and the accused Deepak Singh and Jitender were arrested. They disclosed that they with the help of co-accused Adesh Chaudhary and Saloni Arora abducted and killed Shailendra Singh in the Wagon R Car No. DL 7CD 8060 belonging to Saloni Arora, who was the girl friend of Deepak Singh. According to the prosecution, the two accused Deepak Singh and Jitender disclosed that as part of the conspiracy, long prior to the actual date of the incident, i.e., 12th June 2006 Saloni Arora had been asked to trap Shailender Singh in Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 5 of 21 the net of friendship. Saloni Arora contacted Shailender Singh on his mobile phone No.9213733439 from the mobile phone No. 9818391164 given to her by Deepak Singh and Jitender. 7. On 12th June 2006 Saloni Arora lured Shailender to come with her in her Wagon R Car to Shipra Mall, Ghaziabad, UP where the other accused persons, viz.,Deepak, Jitender and Adesh were waiting in a Santro Car No. DL-3C-AB-3273. After reaching Shipra Mall, Saloni Arora had handed over her car No.DL-7CD-8060 to all the three accused persons. Shailender Singh continued sitting in the Wagon R car and she returned in the Santro car. Thereafter it is alleged that the accused persons, Deepak, Jitender Chaudahry and Adesh Chaudahry killed Shailender Singh in the Wagon R car by firing at him inside the moving car and later strangulated him. The dead body of Shailender Singh was thrown in Ganga Nahar in the area of Murad Nagar, UP. Deepak Singh disclosed that on the same evening, Saloni Arora enquired about the fate of Shailender Singh from Deepak who told her that Shailender Singh is no more. On 14th June 2006 Deepak deposited the Wagon R Car for service/dry-cleaning with M/s Bagga Link Motors, Patparganj Industrial Estate, Delhi, giving a false name of Tushar. Saloni Arora collected the car after servicing on the same evening. Deepak disclosed that Saloni Arora’s father Raman Arora had deposited Rs.20,000 in his Standard Chartered Bank account and a further sum of Rs.47,000 to help him abscond and that he also stayed in Raman Arora’s hotel after the murder. Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 6 of 21 8. The prosecution states that at the instance of Deepak Singh, Saloni Arora was arrested from her house at L-12, Indiraprastha Apartment, Patparganj, Delhi on 4th September 2006. At her instance the Wagon R car was recovered and from her residence three mobile phones along with three SIM cards were recovered. She is alleged to have disclosed that she was provided the SIM No. 9818391164 by Jitender Chaudhary cousin of Deepak Singh. She is alleged to have made several calls on Shailender Singh’s mobile phone Nos. 921373349 (from her mobile No. 9811117235). On 12th June 2006 she made a call on the phone of Shailender Singh from the SIM given to her by Jitender. She asked Shailender Singh to come to Hassanpur, near Patparganj DTC Bus Depot. Then she took him in her Wagon R car and reached Shipra Mall, Ghaziabad and handed over Shailender Singh to all three accused persons and she returned in the Santro car. She also disclosed that she destroyed her SIM Card 9811117235 on 16th June 2006. 9. On 8th September 2006, the Santro car was recovered at the instance of accused Deepak from the parking area of Prashant Apartment, I.P. Extension, Delhi. A search of the Santro car revealed one country made revolver of .32 bore along with 3 live, 2 fired cartridges beneath the mat of driver’s seat. This weapon was allegedly used in the offence. One NCR (non-cognizable report) of SIM No. 9811117235 of Saloni Arora lodged at PS Anand Vihar was also recovered. However she later disclosed that she had destroyed the SIM. It is alleged that she deliberately destroyed the piece of Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 7 of 21 evidence and lodged a false report in this regard at PS Anand Vihar. The Santro car which was recovered belonged to Adesh Chaudhary. 10. Accused Deepak on 8th September 2006 identified the Maruti Service Station, M/s Bagga Links Motors Ltd., Patparganj, Industrial Estate, Delhi where he deposited the Wagon R car in which the crime was committed. He had left the said car there for servicing and dry- cleaning in the name of Tushar. The record of Bagga Links Motors Ltd. dated 14th June 2006 was checked and it confirmed that the said Wagon R car was deposited by Tushar. The supervisor of the servicing department Shri Sri Niwas Sharma identified accused Deepak as Tushar who deposited the car on that date for servicing and dry-cleaning. He stated that when the car was deposited for service it had blood stains on the seats and mats. When he enquired from Tushar (accused Deepak) about it he was informed by Tushar that some accident had taken place with the car. On 15th September 2006, a team of experts from the CFSL/CBI, New Delhi inspected the Wagon R car and detected four samples of blood and two fired lead of bullets and one small piece of lead of bullet and gun shot residue. On 16th October 2006, Adesh Chaudhary of Ghaziabad was arrested and at his instance one mobile phone instrument in which the SIM card of mobile No. 9910477947 used at the time of kidnapping and murder of Shailender Singh was recovered. A handwritten letter in Hindi addressed to the District Magistrate, Aligarh by Deepshikha @ Gudiya in which she apprehended threat to the lives of herself and Shailender Singh by her maternal uncle Tejvir Singh (who is Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 8 of 21 incidentally the father of Deepak Singh) and her family members was recovered. 11. On interrogation Deepshikha disclosed that Tata Mobile phone No.9212201441 was gifted to her by Shailender Singh for her personal use. This mobile phone was in the name of Shailender Singh. On that phone they used to talk to each other. On 11th June 2006, she talked with Shailender Singh from the cell phone to the mobile phone Nos. 9213733439, 9873288984 and 9873404088. On 15th June 2006 she came to know through one of her friends that Shailender Singh had been abducted by her brother Jitender Chaudhary and Deepak Singh and Adesh Chaudhary. When she enquired from them they threatened her to not utter a single word. Her brother Jitender Chaudhary later snatched the Tata Mobile phone No. 9212201441 and destroyed it. 12. The call details of all the mobile phones were thoroughly analyzed by the Investigating Officer (IO). A charge sheet was filed on 30th November 2006. By the impugned order dated 22nd November 2007 order on charge was passed and by the order dated 5th March 2008 charges were framed by the learned ASJ against the accused as indicated hereinbefore. 13. On behalf of petitioner Saloni Arora it is submitted by Mr. D.S. Kohli, learned Advocate that in the impugned order, the learned ASJ has barely noticed the submissions made on her behalf and has dealt Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 9 of 21 with them very cursorily. In para 6 the case of the prosecution that Saloni Arora had misled the IO by stating that she had lost her SIM card when in fact she destroyed it was noted. The second circumstance was that her father had spent a substantial sum on accused Deepak to help him abscond. Barring this, there was no discussion in the impugned order on charge about the precise case concerning Saloni Arora. It is submitted that the case against Saloni Arora at the highest could be that of destroying the SIM card and offence under 182 IPC may be attracted. However, she was not part of the conspiracy to murder Shailender Singh and therefore could not be charged under Section 120B IPC read with Section 302 IPC. It is further submitted that as far as Saloni Arora is concerned apart from some mobile phone records and the fact that the Wagon R car belonged to her there is no evidence to link her to the murder of Shailender Singh and the conspiracy for the commission of the murder itself. It is submitted that the mere call records by themselves do not reflect any conspiracy between the accused persons. It is further submitted that the evidence regarding her father having deposited monies in Deepak Singh’s accounts to help him abscond is also not supported by the counterfoils of the bank deposit slips. It is submitted that she never tried to abscond and in fact cooperated with the police. While her friendship with Deepak Singh is not denied it is submitted that this does not automatically mean that she would be part of all the activities in which Deepak Singh is involved. She had no personal enmity with Shailender Singh. It is accordingly submitted that the framing of the charges against Saloni Arora for Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 10 of 21 offences under Sections 120 B read with 302 IPC, 201/120B IPC, 364/120 B IPC and 365/120 B IPC was not justified. 14. Mr. B.S. Rana, the learned counsel appearing for Deepak Singh submitted that the evidence recorded of the prosecution witnesses showed that they were trying to improve their case from time to time. The improvements were material and rendered the version of these witnesses unworthy of belief. PW3 spoke about receiving a call from Saloni Arora on the mobile of Shailender Singh on 11th June 2006. He however admitted that he had not stated so to the police earlier. The evidence about searching the bag of Shailender Singh on 20th June 2006 and finding a letter addressed by Deepshika to him was also not stated at the time of investigation. The portion about their learning that the mobile phone No. 9818391164 had been lost and mobile phone No. 9811117235 had become non-functional on 13th June 2006 was also an improvement over the earlier statement. It is submitted that this is a case where the body of the victim has yet to be recovered and the case is entirely based on circumstantial evidence. In the first statement made by Sahab Singh to the police he didn’t say about the call received on 14th June 2006 by Prahlad Singh from Deepshikha that Deepak, Jitender and Adesh Chaudhary had taken away Shailender. That information was given to the police only when the supplementary statement was made on 23rd June 2006. It is submitted that if on 14th June 2006 itself this information was available with Prahlad Singh, it is surprising that the police was not informed of it earlier. Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 11 of 21 15. Mr. Rana also criticized the alleged recovery of the wrist watch and the ring stated to belong to the accused. In his cross-examination, Sahab Singh admitted that the said wrist watch and the ring were seen by him for the first time in the police station and later on in the court. It was submitted that the key public witnesses have already been examined. There could be no apprehension of any of the remaining witnesses being threatened and therefore there was no justification in denying bail to the petitioner Deepak Singh. It was further pointed out that Saloni Arora was granted bail on 22nd November 2006 and Adesh Chaudhary on 12th April 2007 and therefore on parity Deepak Singh should also be released on bail. 16. On behalf of the State Mr. Sanjay Lao, the learned APP has taken the court through the entire case of the prosecution step by step. The family of Deepshikha was apprehensive that Shailendra was eyeing the large number of properties owned by them and for that reason befriended Deepshika and wanted to marry her. They resented the relationship but were unable to persuade Deepshikha to stop seeing Shailendra. Therefore a criminal conspiracy to eliminate him was hatched. In particular Mr.Lao points out that the disclosures made by Deepak Singh led to the recoveries of both the Wagon R car in which the murder of Shailender Singh took place as well as the Santro car which was used by the accused. Details provided by Deepak Singh about having given the Wagon R car for service and dry-cleaning to M/s Bagga Link Motors under the false name Tushar has been completely proved by the evidence collected pursuant to such Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 12 of 21 disclosure and the recovery of ballistic evidence in the form of bullets lead and gun shot residue confirmed the killing of Shailender Singh by using a fire arm. The mobile phone records also substantiated the involvement of the accused in the larger conspiracy to commit the murder of Shailender Singh. Deepshikha’s letter to the District Magistrate and her statements made during the investigation also confirmed that she was having an affair with deceased Shailender Singh which was objected to by her cousin Deepak Singh and maternal uncle Tejvir Singh. He also points out that the Deepak Singh’s father Tejvir Singh is a known criminal who is wanted in a large number of cases. Shailender Singh was eliminated on account of the objection of Deepak Singh’s father to the affair of Deepshikha with Shailender Singh. The motive behind the murder of Shailender Singh by Deepak Singh and his friends is clearly established. Mr. Lao further points out that the evidence is at a very critical stage and certain important public witnesses remain to be examined. At this stage, the grant of bail to Deepak Singh would not be safe. 17. As regards Saloni Arora, it is submitted by Mr.Lao that she deliberately misled the IO by stating that her SIM card had been destroyed. She had in fact destroyed the evidence by lodging a false missing report in the form the NCR. Later the SIM card which was reported missing was in fact recovered from her residence. It is submitted that given the background of Deepak Singh, when he wanted Shailender Singh to be brought to the Shipra Mall, Saloni Arora would have definitely known that this was only with a view to Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 13 of 21 eliminate Shailender Singh. The fact that the Wagon R car belonged to her, and was recovered at her instance and she went to collect it after it was left for servicing by Deepak Singh under a false name, showed that Saloni Arora was very much part of the criminal conspiracy to eliminate Shailender Singh. Mr. Lao also refers to the fact that Deepak Singh after the commission of the murder went on a pilgrimage and money was provided to him by Saloni Arora’a father Raman Arora. This also showed that that the Saloni Arora was very much part of the conspiracy to abduct and murder Shailendra Singh. The order on charge as regards Saloni Arora 18. The above submissions have been considered by this Court. First this court proposes to deal with the submissions regarding Saloni Arora being charged with the offence of criminal conspiracy to commit the abduction and murder of Shailender Singh, i.e., for offences punishable under Sections 302/120B, 364/120 B, 365/120 B, 201/120 B and 182 IPC. 19. The scope of a revision petition filed challenging an order on charge has been settled in a large number of decisions of the Supreme Court. In Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 (SCC, p.9) the following principles were explained as guiding the function of the criminal court while passing an order on charge: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 14 of 21 (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 20. In Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135, while reiterating the above principles it was held (SCC, at p. 140): “by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the Crl. Rev. (P) No.497/08 & Bail Appln. No. 1169/08 Page 15 of 21 accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 21. Keeping the above law in mind when the records of the present case are examined with particular reference to the role of Saloni Arora, it is seen that the case of the prosecution is based on circumstantial evidence. The main circumstance is that she was the girl friend of Deepak Singh