Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 1 of 118 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 30th October, 2009 Judgment Delivered on: 16th December, 2009 + CRL.A. 237/2008 TEJINDER VIRDI @ DOLLY ..... Appellant Through: Pt.R.K.Naseem and Mr.Nitin Tittal, Advocates. versus STATE ..... Respondent Through: Mr.Pawan Sharma, Advocate. + CRL.A. 415/2008 ROMESH SHARMA ..... Appellant Through: Mr.Ram Jethmalani, Sr. Advocate with Mr.Jaswinder Singh and Mr. Pranav, Advocates. versus THE STATE ..... Respondent Through: Mr.Pawan Sharma, APP. + CRL.A. 459/2008 SURINDER MISHRA ..... Appellant Through: Mr.O.P.Malviya, Advocate. versus STATE ..... Respondent Through: Mr.Pawan Sharma, APP. + CRL.A. 536/2008 HEM CHAND @NANI ..... Appellant Through: None. versus Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 2 of 118 STATE OF NCT OF DELHI ..... Respondent Through: Mr.Pawan Sharma, APP. + CRL.A. 604/2008 SANT RAM ..... Appellant Through: Ms.Anu Narula, Advocate. versus STATE ..... Respondent Through: Mr.Pawan Sharma, APP. + CRL.A. 639/2008 RAMESH @ BOBBY @ RAJESH @ AJAY @ RAJU ..... Appellant Through: Ms.Anu Narula, Advocate. versus STATE ..... Respondent Through: Mr.Pawan Sharma, APP. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 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. The above captioned appeals arise out of the impugned judgment dated 15.02.2008 and the order on sentence dated Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 3 of 118 18.02.2008 passed by the learned Additional Sessions Judge in Sessions Case No.14/1999 arising out of FIR No.188/1999 registered at Police Station Mehrauli. By virtue of the impugned judgment, appellants Surinder Mishra, Tejinder Virdi @ Dolly, Romesh Sharma and Hem Chand @ Nani, Sant Ram and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju have been convicted for the offence punishable under Section 120-B IPC read with Section 302 IPC. Additionally, appellants Hem Chand @ Nani, Sant Ram and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju have been convicted for the offence punishable under Section 302 IPC read with Section 34 IPC. With respect to the offence punishable under Section 120-B IPC read with Section 302 IPC, appellants Surinder Mishra and Tejinder Virdi have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.5,000/-, in default to undergo SI for three months; whereas Romesh Sharma has been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.50,000/-, in default to undergo SI for six months. With respect to the offence punishable under Section 302 IPC read with Section 34 IPC, appellants Hem Chand @ Nani, Sant Ram and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.1,000/-, in default to undergo SI for one month. The learned trial court did not award any sentence to the Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 4 of 118 appellants Hem Chand @ Nani, Sant Ram and Ramesh @ Bobby @ Rajesh @ Ajay @ Raju for the offence punishable under Section 120-B IPC read with Section 302 IPC on the ground that they have been already sentenced for major offence punishable under Section 302 IPC read with Section 34 IPC. 2. The case set up by the prosecution against the appellants is that in the afternoon of 20.03.1999 Inspector Jagdish Meena PW-36, along with some other police officials was patrolling in the area around Chattarpur Mandir when at around 2.00 P.M. Ram Achal Tiwari PW-16, met Inspector Jagdish Meena and informed him that a lady has been murdered at Jai Mata Di farmhouse situated near Chattarpur Mandir. Inspector Jagdish Meena immediately made a telephone call to police station Mehrauli and gave the aforesaid information to SI Sunil Lamba PW-6, who recorded DD No.12A, Ex.PW-6/4. 3. Simultaneously, Inspector Jagdish Meena PW-36, transmitted the aforesaid information to SI J.S.Joon PW-35 and Const. Garib Chand PW-20. Thereafter Inspector Jagdish Meena along with Ram Achal Tiwari PW-16, proceeded to Jai Mata Di farmhouse where he saw that a lady named Kunjum (hereinafter referred to as the “Deceased”) was lying dead on Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 5 of 118 the ground. Inspector Jagdish Meena noticed that the shirt worn by Ram Achal Tiwari was stained with blood and therefore, he seized the same vide memo Ex.PW-16/1. On inspecting the spot, Inspector Jagdish Meena found a slip of paper on which the telephone number 7166786 was written. 4. On receiving the information about the incident in question, SI J.S. Joon PW-35, Const. Garib Chand PW-20 and HC Satish Chand PW-22 reached the spot. Inspector Jagdish Meena PW-36, handed over the slip of the paper found at the spot to SI J.S.Joon PW-35, upon which he and HC Satish Chand PW-22, proceeded to make inquiries in respect of the telephone number written on the said slip. 5. In the meantime, a telephone call was received in the police control room in connection with the incident in question pursuant to which Lady Constable Milyani PW-29, made an entry in the PCR form Ex.PW-29/1 at 2.53 P.M. on 20.03.1999, to the effect that a telephonic information was received from a lady named Rani having telephone number 6425714 informing that a man named Romesh Sharma has murdered a girl at Jai Mata Di farmhouse. HC Joseph PW-3, recorded the information contained in the PCR form Ex.PW-29/1 in the log book PW-3/1. 6. Inspector Jagdish Meena PW-36, recorded the statement Ex.PW-6/1 of Ram Achal Tiwari PW-16, and made an Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 6 of 118 endorsement Ex.PW-6/1A thereon, and at around 03.00 P.M. on 20.03.1999 forwarded the same through Const. Garib Chand PW-20, to the police station for the purposes of registration of an FIR. Const. Garib Chand took the endorsement Ex.PW-6/1A to SI Sunil Lamba PW-6, who recorded the FIR No.188/99 Ex.PW-6/2 at 03.20 P.M. on 20.03.1999. SI Sunil Lamba contemporaneously prepared DD entry no.14A Ex.PW-6/5, recording the timing of the registration of the FIR Ex.PW-6/2. Thereafter at around 04.35 P.M. SI Sunil Lamba handed over a copy of the FIR Ex.PW-6/2 to Const. Khushi Ram PW-26, for the purposes of delivery of the FIR to the Area Magistrate and senior police officers. SI Sunil Lamba prepared DD entry no.15A Ex.PW-6/6, recoding the timing of the delivery of the FIR to the Area Magistrate and senior police officers. 7. In his statement Ex.PW-6/1, Ram Achal Tiwari PW-16, stated that he works as a caretaker at Jai Mata Di farmhouse since last two years and that he resides in the said farmhouse. The said farmhouse is owned by Romesh Sharma who is lodged in prison since last few months and that Surinder Mishra who is the nephew of Romesh Sharma takes care of the farmhouse in the absence of Romesh Sharma. Today, at around 08.00 A.M. Surinder Mishra came to the farmhouse and Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 7 of 118 met his associates Nani, Ramesh @ Rajesh, Rakesh and Pramod. The aforesaid persons were employed by Surinder Mishra to work at the farmhouse since last about 1 ½ months. After about 20 minutes Surinder Mishra told him that Kunjum madam would come to the farmhouse today so he should clean the temple and help the deceased in performing puja. Thereafter Surinder Mishra left from there. At about 11.30 A.M. two girls named Dolly and Sonu along with one Pandit Chavidas who resides at Lodhi colony came to the farmhouse in a car and told him that he should open and clean the temple; that a puja will be performed at the temple; that they are going to the market to purchase the things required for performing the puja and that they would return in a short while. The said girls had come with Surinder Mishra to the farmhouse on various occasions. Thereafter at about 12.00 P.M. when he returned to the farmhouse after purchasing ration he saw that Kunjum Madam had come there in her Toyota car bearing No.DL-3C-B-9399 and that she was standing near her car. Kunjum told him that the tyre of her car was punctured and that he should bring a mechanic upon which he brought a mechanic from a shop situated outside the farmhouse. After inspecting the car the mechanic left the farmhouse to bring some tools. At that very moment, Kunjum Madam told him that he should take the keys of kothi from her Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 8 of 118 and open the same, upon which, accompanied by Kunjum he went towards the kothi and opened the door of the kothi. He and Kunjum went inside the kothi and Kunjum saw the puja room after which they started going upstairs from the basement of the kothi. At around 12.30 P.M. Kunjum reached the main gate of the kothi and he was climbing the stairs when suddenly the four boys who used to reside in the farmhouse; namely, Nani, Ramesh @ Rajesh, Rakesh and Pramod @ Prahalad @ Bobby entered the kothi. Nani and Rakesh were having knives in their hands whereas Pramod and Ramesh were having bottle and revolver respectively in their hands. On entering the kothi the aforesaid persons told Kunjum that „how dare did she enter the kothi‟. Ramesh and Rakesh pushed Kunjum, upon which she fell down on the floor. Thereafter Nani gave knife blows on the neck, chest and forehead of Kunjum and Ramesh hit the bottle on the chest of Kunjum. Pramod showed him the revolver and threatened him by saying that he should not come upstairs otherwise they would shoot him. After having murdered Kunjum the aforesaid four boys took the black colored handbag and mobile phone of Kunjum and fled from the kothi. Having witnessed the incident he got scared and came out of the kothi. After telling the other security guards present in the farmhouse about the incident he went out of the farmhouse to give a telephone call to the Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 9 of 118 police. When he could not contact the police over telephone he ran to Chattarpur temple where he informed Inspector Jagdish Meena about the incident. When the aforesaid four boys were inflicting knife blows on the person of Kunjum the shirt worn by him got stained with blood of Kunjum. He removed the said shirt and the same was seized by the police. The aforesaid four boys had murdered Kunjum and that they had fled from the spot after taking the black colored bag and mobile phone of Kunjum. 8. Inspector Jagdish Meena PW-36, commenced the spot investigation after the registration of the FIR Ex.PW-6/2. He noticed that the ground where the deceased was lying dead was stained with blood and that a slipper was lying near the body of the deceased. He lifted blood sample from the ground as recorded in the memo Ex.PW-20/2. He also seized the aforesaid slipper vide memo Ex.PW-20/1. Thereafter he prepared rough site plan Ex.PW-36/1 of the spot. 9. Thereafter the crime team reached the spot. SI Mohar Singh PW-14, Finger Print Expert, inspected the spot. However no chance prints could be detected therein. Const.Brijbir Singh PW-2, Photographer, took 7 photos Ex.PW-2/1 to Ex.PW-2/7 of the spot; negatives whereof are Ex.PW-2/8 to Ex.PW-2/14. Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 10 of 118 10. In the meantime, a telephone call was received at the police control room in connection with the incident in question pursuant to which Lady Constable Milyani PW-29, made an entry in the PCR form Ex.PW-29/1 at 2.53 P.M. on 20.03.1999, to the effect that a telephonic information was received from a lady named Rani having telephone number 6425714 informing that a man named Romesh Sharma has murdered a girl at Jai Mata Di farmhouse. 11. SI J.S.Joon PW-35 and HC Satish Chand PW-22, made enquiries with respect to telephone number 7166786 and came to know that said number is installed at house bearing municipal No.21/24, Mangol Puri, New Delhi. The aforesaid police officers went to the said house where they met one boy named Asal who told them that a man named Rakesh used to live at the said house and that presently he is residing at B-16, Staff Quarters, Fire Station, Moti Nagar. Thereafter the said police officers went to the address provided by Asal but they could not find Rakesh there. 12. On the same day i.e. 20.03.1999 Inspector Jagdish Meena PW-36, recorded the statements of Sunil Kumar PW-15, Hari Chand PW-17, Pandit Deepak Sharma PW-18 and Dilbag Singh PW-19, under Section 161 Cr.P.C. Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 11 of 118 13. In his statement Ex.PW-15/DA, Sunil Kumar stated that he is employed as a security guard at Jai Mata Di farmhouse. Apart from the guards, seven persons namely Nani, Rakesh, Ramesh @ Bobby, Sant Ram, Balle, Babu and Guddu reside in the said farmhouse. The gardener and the other security guards had told him that the aforesaid seven persons were employed by Surinder Mishra. Whenever Surinder Mishra visited the farmhouse he used to talk to said seven persons in a closed room. Surinder Mishra came to the farmhouse in the evening of 19.10.2003 and consumed liquor with the aforesaid persons till late in the night. In the morning of 20.10.2003 at about 8.00 A.M. Surinder Mishra came to the farmhouse, talked to Nani and his associates for about ten minutes and thereafter left from there in a car. Thereafter at around 11.30 A.M. two madams and one priest came at the farmhouse and left from there after telling Tiwari (Ram Achal Tiwari) about the performance of a puja at the farmhouse. The aforesaid three persons did not return to the farmhouse. Thirty minutes thereafter the deceased came there in a car, one tyre of which was punctured. Madam asked Tiwari to call a mechanic pursuant to which Tiwari brought a mechanic to the farmhouse. Thereafter Tiwari and the deceased went inside the kothi pursuant to which Nani, Rakesh, Ramesh and Sant Ram also went inside the kothi. After about ten minutes the Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 12 of 118 aforesaid four persons came out of the kothi and left from the farmhouse along with their three associates who were standing at the gate of the farmhouse. Sometime thereafter, Tiwari who was in a perplexed condition came out and informed him and other security guards that the aforesaid seven persons have murdered the deceased with knives. Tiwari went out of the farmhouse to inform the police that he and other security guards saw the deceased lying dead in a pool of blood near the gate of the kothi. 14. In his statement Ex.PW-17/DA, Hari Chand stated the facts which were already stated by Sunil Kumar in his statement Ex.PW-15/DA. 15. In his statement Ex.PW-19/DA, Dilbag Singh also stated the facts which were already stated by Sunil Kumar in his statement Ex.PW-19/DA. Additionally, he stated that on the evening of 19.10.2003 when Surinder Mishra had come to the farmhouse he heard Surinder Mishra telling Nani and his associates that the deceased would surely come to the farmhouse tomorrow, that they should positively eliminate the deceased and that he would tell them the future course of action later to which Nani and his associates replied that they would finish the work assigned to them. Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 13 of 118 16. In his statement Ex.PW-18/DA Pandit Deepak Sharma stated that he used to perform puja at the residence of Romesh Sharma. On 19.03.1999 he along with Sonu and Dolly went to C-30, Mayfair Garden, the residence of Romesh Sharma, and performed puja there. On the next day he along with Sonu and Dolly went to Jai Mata Di farmhouse where they were met by one Tiwari. Dolly told Tiwari to clean the temple, that they are going to purchase things required for performing puja and that they would return shortly. When they reached at the gate of the farmhouse after making purchases Sonu and Dolly said that the police is present at the farmhouse and thereafter they drove the car towards C-30, Mayfair Garden. Dolly and Sonu dropped him at Main Road, Khelgaon wherefrom he went to the temple where he used to reside. 17. Inspector Jagdish Meena recorded the supplementary statement Ex.PW-16/DA of Ram Achal Tiwari wherein he stated that 1½ months prior to the day of the murder of the deceased one Subba Rao forcibly tried to take possession of Jai Mata Di farmhouse due to which Surinder Mishra had employed Nani and his associates for safety of the farmhouse. Surinder Mishra used to visit the farmhouse almost every day and consume liquor with Nani and his associates. The boy who was referred by him as Prahlad @ Pramod in his earlier statement Ex.PW- Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 14 of 118 16/A is also known by the name of Sant Ram. Surinder Mishra had often told him that his uncle Romesh Sharma is very distressed these days as the deceased is causing him lot of trouble. The demands of the deceased are increasing day by day despite the fact that Romesh Sharma has given her the house bearing municipal No.C-31, Hauz Khas. One day Surinder Mishra told him that Romesh Sharma would give all his properties to the deceased despite the fact that he, Dolly and Sonu are acting as parokars of Romesh Sharma. At the time of the murder of the deceased, Nani, Ramesh, Rakesh and Sant Ram had gone inside the kothi while Balle, Guddu and Babu were standing at the gate of the farmhouse. Dilbag Singh had told him that Balle, Guddu and Babu were standing at the gate of the farmhouse at the time of the murder of the deceased. 18. On the next day i.e. 21.03.1999 the body of the deceased was sent to mortuary at AIIMS, where Dr.Lal Rozama conducted the post-mortem of the deceased at 11.30 A.M. and prepared the post-mortem Ex.PW-31/A which records following ante-mortem injuries on the person of the deceased:- “1. Incised wound 3 x 1 cm x subcuteuors depth on left abdomen 6 cm from midline 13 cm from ant superior iliac spine Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 15 of 118 2. Incised cut wound 3.5 x 1 cm x 5 c depth 3 cm from midline & 13 cm from left nipple on left abdomen 3. Incised stab wound 2.5 x 1 cm x 5 cm deep on left breast 7 cm from nipple 4. Incised stab wound 4 cm x 1 cm x 5 cm depth on left breast 1 cm below nipple 5. Stab wound incised 3.5 x 1 cm x chest cavity depth on 1 cm above left nipple directed downwards and (illegible) piercing tab ant left lung at (illegible) depth 6. (Illegible) cut wound long x 5 cm depth (illegible) 7. Incised wound 3 x 1 cm x bone depth left arm laterally 6 cm above elbow (illegible) 8. Incised cut wound 7.5 cm long x tracheal depth horizontally on neck 4 cm from suprsternal notch 9. Cut wound 6 cm long horizontal placed on front of suprsternal notch and 6 cm from chin trachea horizontally 10. Incised cut wound 6 cm x 2 cm x bone depth (illegible) of outer table of frontal bone (skull) horizontally 11. Incised wound 7 cm long x 1 cm x bone depth (illegible) middle of left (illegible) linear fracture 3 cm long” 19. The post-mortem report further records that the death of the deceased was caused due to the cumulative effect of the afore-noted injuries found on the person of the deceased. That injuries Nos. (5), (10) and (11) found on the person of the deceased were individually sufficient to cause death in the ordinary course of nature and that they were caused by sharp- edged stabbing weapon. Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 16 of 118 20. After the post-mortem, the doctor handed over the clothes and blood sample of the deceased on a gauze to Inspector Jagdish Meena PW-36, who seized the same vide memo Ex.PW-36/3. 21. Since the investigation so far conducted in the case was pointing towards the complicity of Surinder Mishra, Tejinder Virdi @ Dolly, Jaspreet Virdi @ Sonu, Hem Chand @ Nani, Sant Ram @ Pramod @ Prahlad and Ramesh @ Rajesh @ Ajay @ Raju @ Bobby in the murder of the deceased, the police set out to apprehend them. 22. In the night of 22.03.1999 Inspector Tarun Kumar PW-12, Crime Branch, Ahmedabad, received secret information that accused Surinder Mishra is staying at Kapadia Guest House whereupon he went there and learnt that Surinder Mishra is staying at the said guest house under the name of Raj Kumar Bhatia. Inspector Tarun Kumar apprehended Surinder Mishra and immediately sent the information of the apprehension of Surinder Mishra to police station Mehrauli pursuant to which Inspector Jagdish Meena PW-36, accompanied by SI Vijay Kumar PW-32, proceeded to Ahmedabad. On being apprehended and interrogated by Inspector Tarun Kumar PW- 12, Surinder Mishra made a disclosure statement Ex.PW-12/A wherein he disclosed that he, Romesh Sharma, Tejinder Virdi Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 17 of 118 @ Dolly, Jaspreet Virdi @ Sonu hatched a conspiracy to murder the deceased and that Hem Chand @ Nani, Sant Ram @ Pramod @ Prahlad and Ramesh and Rakesh murdered the deceased in pursuance of the said conspiracy. He also disclosed that his mobile number is 9810114857; that the mobile number of Tejinder Virdi @ Dolly is 9811024145 and that the mobile numbers of Jaspreet Virdi @ Sonu are 9810123175 and 9810137333. He further disclosed that Tejinder Virdi @ Dolly gave a call on his mobile phone in the afternoon of 20.03.1999 after the murder of the deceased. Thus, even Romesh Sharma became a suspect. 23. On reaching Ahmedabad, Inspector Jagdish Meena PW- 36, obtained the register of guests maintained at Kapadia Guest House from Amara Bhai PW-5, the manager of the said guest house, and seized the portion Ex.PW-5/1 of the register pertaining to the stay of Surinder Mishra at the said guest house vide memo Ex.PW-36/4. (A perusal of the document Ex.PW-5/1 shows that one Raj Kumar Bhatia checked in Kapadia Guest House at 07.30 P.M. on 22.03.1999). Inspector Jagdish Meena also recorded the statement Ex.PW-5/DA of Amara Bhai PW-5 wherein he stated that Surinder Mishra is the person who was staying as Raj Kumar Bhatia at Kapadia Guest Crl.A.Nos.237/08, 415/08, 459/08, 536/08, 604/08 & 639/08 Page 18 of 118 House. He formally arrested Surinder Mishra in the instant FIR as per arrest memo Ex.PW-32/1. 24. On 25.03.1999 the police recorded the statement Ex.PW- 30/DA of Vikram Singh PW-30, wherein Vikram Singh stated that he is running a security agency under the name and style of Washtower Security Agency and that he had deployed the security guards at Jai Mata Di farmhouse. (It may be noted here that it is not clear as to who is the scribe of the statement Ex.PW-30/DA). 25. On the same day i.e. 25.03.1999 Inspector Jagdish Meena seized three letters Ex.PW-27/B, Ex.PW-28/B and Ex.PW-28/C from Pawan Budhiraja PW-28, the brother of the deceased, vide memo Ex.PW-28/D. 26. The letter Ex.PW-27/B is an incomplete letter purportedly written by the deceased to Romesh Sharma and the same reads as under:- “Sweetheart I do not know what to write and what not to write you are going on saying that go there and do pooja these people are playing tricks and they are not giving the keys to me when pawan asked surinder he said I have given to dolly and dolly says the keys are with surinder and your