CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 1 of 84 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on 12.10.2011 + CRL.A. 357/2008 RAVI KANT SHARMA … Appellant - versus - STATE … Respondent Advocates who appeared in this case: For the Appellant : Mr Sushil Kumar, Sr. Advocate with Mr Sudarshan Rajan and Md. Qamar Ali For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil AND + CRL.A. 486/2008 SHRI BHAGWAN SHARMA … Appellant - versus - STATE … Respondent Advocates who appeared in this case: For the Appellant : Mr Siddharth Luthra, Sr. Advocate with Mr T.S. Ahuja, Mr Madhav Khurana, Mr Neeraj Gaur & Mr Amit Sharma For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil AND + CRL.A. 396/2008 SATYA PRAKASH SHARMA … Appellant - versus - CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 2 of 84 STATE … Respondent Advocates who appeared in this case: For the Appellant : Mr Sarfaraz Hussain with Mr Masood Hussain For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil AND + CRL.A. 338/2008 PRADEEP SHARMA … Appellant - versus - STATE … Respondent Advocates who appeared in this case: For the Appellant : Mr D.B. Goswami with Mr S. Gaurav Saran For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil AND + CRL.A. 751/2009 STATE … Appellant - versus – VED PRAKASH SHARMA … Respondent Advocates who appeared in this case: For the Appellant : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil For the Respondent : Mr Mahavir Sharma AND + CRL.A. 752/2009 STATE … Appellant CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 3 of 84 - versus – VED PRAKASH @ KALU … Respondent Advocates who appeared in this case: For the Appellant : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil For the Respondent : Mr N. Hariharan with Mr Akshai Malik CORAM: HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE MANMOHAN SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be reported in Digest? YES BADAR DURREZ AHMED, J 1. These six appeals arise out of the common judgment dated 18.03.2008 delivered by the Additional Sessions Judge, Karkardooma Courts, Delhi whereby the appellants Ravi Kant Sharma, Shri Bhagwan, Satya Prakash and Pradeep Sharma were convicted for the offence punishable under Section 120-B read with Section 302 IPC for hatching a criminal conspiracy to kill Shivani Bhatnagar (deceased), who was actually killed by Pradeep Sharma in execution of the said conspiracy. The other accused were Ved Prakash Sharma and Ved Prakash @ Kalu, who were acquitted of all charges. The State has preferred two appeals (Crl. A. 751/2009 & Crl. A. 752/2009) in respect of Ved Prakash Sharma and Ved Prakash @ Kalu against the said acquittals. The impugned judgment dated 18.03.2008 was delivered in Sessions Case No. 14/2006 and arose out of the FIR No. 21/1999 under Sections 302/201/403/404/411/ 419/392/397/120-B/34 IPC registered at Police Station Mandawali on 23.01.1999. CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 4 of 84 2. All the convicted persons were, by an order dated 24.03.2008 passed by the said Additional Sessions Judge, Karkardooma Courts, Delhi, sentenced to imprisonment for life. Convict R. K. Sharma was also directed to pay a fine of ` 20,000/- while the other three convicts, namely, Shri Bhagwan, Satya Prakash and Pradeep Sharma were directed to pay a fine of ` 10,000/- each. In default of the payment of the said fines, the convicts were directed to undergo an additional period of six months’ simple imprisonment. 3. The main charge framed against all the six accused on 03.03.2003 was that all of them, during December, 1998 to January, 1999 at Delhi and other places, had agreed to commit the murder of Shivani Bhatnagar as she had threatened R. K. Sharma to spoil his life and career, after developing physical intimacy with him. As per the charge, it had also been agreed to dishonestly misappropriate a camera from her house as also a gold chain by having it removed from her dead body and also to destroy evidence regarding the commission of murder. The charge goes on to state that in pursuance of the said criminal conspiracy, all the six accused aided and abetted the commission of the murder of Shivani Bhatnagar and that Satya Prakash and Pradeep Sharma went to Navkunj Aparments, Patparganj, Delhi on 23.01.1999 where the accused Pradeep Sharma falsely personated himself as Rajiv Bhatnagar and entered into B-42, Navkunj Apartments, the residence of Shivani Bhatnagar on the pretext of extending an invitation of marriage and thereafter, murdered her by strangulating her with a piece of electric wire and by stabbing knives on her neck at about 3/3:30 pm. It is further alleged in the charge that the accused Pradeep Sharma, thereafter, in pursuance of the said criminal conspiracy, removed a Kodak camera and certain documents from the said flat and a gold chain from the body of the deceased Shivani Bhatnagar. It is further alleged that the sim card corresponding to the mobile phone number 9811008825 was destroyed by the accused Satya Prakash. It was, CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 5 of 84 therefore, alleged that in this manner all the six accused had committed an offence under Section 120-B read with Sections 302/201/403/404 IPC within the cognizance of the said Court. All the accused pleaded not guilty to the said charge as also to the other ancillary charges framed separately and claimed trial. 4. Pradeep Sharma was additionally charged under Section 404 IPC for having dishonestly misappropriated the gold chain by removing the same from the dead body of Shivani Bhatnagar. He was also charged under Section 419 IPC for having cheated by falsely personating himself to be Rajiv Bhatnagar and entering the same in the visitors’ register of Navkunj Apartments as also by representing himself to be Rajiv Bhatnagar to Shivani Bhatnagar at the time of entering the apartment. Pradeep Sharma was, however, acquitted of this charge. 5. Pradeep Sharma and Satya Prakash Sharma were also jointly charged for having committed an offence punishable under Section 302/34 IPC for having committed the murder of Shivani Bhatnagar in furtherance of their common intention to kill her. This charge was not accepted by the learned Additional Sessions Judge and they were not convicted under Section 302/34 IPC. 6. Satya Prakash Sharma was also charged for having committed an offence punishable under Section 201 IPC for allegedly causing the destruction of the sim card of mobile phone No. 9811008825 with the intention to screen himself and other offenders from legal punishment. This charge was also found to be not established and, therefore, Satya Prakash Sharma was acquitted of the same. The accused Ved Prakash Sharma and Ved Prakash @ Kalu were charged for having committed an offence punishable under Section 392/397 read with Section 34 IPC for having committed, in furtherance of their common intention, robbery of a Kodak camera and a gold chain belonging to Shivani Bhatnagar and at the time of the commission of the CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 6 of 84 robbery, for having caused or attempted to cause death or grievous hurt to the said Shivani Bhatnagar. This charge was also not established and both the accused, namely, Ved Prakash Sharma and Ved Prakash @ Kalu were acquitted of the same. A charge under Section 404 IPC in respect of the gold chain belonging to Shivani Bhatnagar was also framed against Ved Prakash Sharma. He was, however, acquitted of this charge. 7. Lastly, a separate charge was framed against the accused Ved Prakash @ Kalu under Section 411 IPC in respect of the Kodak Camera which was allegedly recovered consequent to a disclosure statement made by the said accused, who had allegedly dishonestly received and retained the same believing the same to be stolen property. The accused Ved Prakash @ Kalu was acquitted of this charge also. PROSECUTION’s CASE: 8. Mrs Shivani Bhatnagar (deceased) used to work with Asian Age and in February, 1997, she joined Indian Express in the capacity of Principal Correspondent. She was looking after the legal and constitutional implications covering investigating agencies such as the CBI and Intelligence Bureau and in this connection she used to cover the Prime Minister’s Office in the year 1997. Her husband, Mr Rakesh Bhatnagar was also a journalist and was working as a Legal Editor with the Times of India. Both of them were living together at B-42, Navkunj Apartments, Patparganj, Delhi. 9. On 22.01.1999, Rakesh Bhatnagar’s brother-in-law B. S. Bhatnagar, who was a resident of Panchkula, had come to stay with them. At about 10 am on 23.01.1999, the said B. S. Bhatnagar left the house as he had to attend a meeting. Rakesh Bhatnagar also left the apartment at 12:15 pm and as a consequence, the only persons CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 7 of 84 left in the said flat were Shivani Bhatnagar, their infant son Tanmay and maid servant Vally. At about 3:30 pm, Shivani Bhatnagar informed Rakesh Bhatnagar over the phone that one person from the Tribune, Chandigarh had brought an invitation card concerning the marriage of one Mr Adhikari’s son. The phone was handed over to the said person, who had come with the invitation card and he also had a talk with Rakesh Bhatnagar and while doing so, he gave his name as ‘Sharma’. 10. At about 5 pm, on the same day, Rakesh Bhatnagar received a phone call from his brother-in-law B. S. Bhatnagar, who told him that he was not able to open the door of the flat. Rakesh Bhatnagar asked him to make another attempt and at about 5:30 pm, the said B. S. Bhatnagar again made a phone call to Rakesh Bhatnagar and informed him that Shivani Bhatnagar had been stabbed in their apartment and that he should come immediately. 11. Rakesh Bhatnagar left his office and on his arrival at the flat, he found that Shivani Bhatnagar was lying in the front bedroom of the said apartment and her neck was bleeding. A kitchen knife was found stuck to her neck and another knife was lying on her body. He also saw a tawa and a piece of yellow electric wire lying around her body. The articles lying in the three rooms were scattered and the almirahs were found to be ransacked. He also saw two cups of tea, namkeen, biscuits, an empty glass of water and one sweetmeat box lying near the sofa. 12. In the meanwhile, one Parul, who was a news reporter with the Times of India, had informed the police control room at about 6:13 pm that at B-42, Navkunj Apartments, Patparganj, near mother dairy, a woman had been stabbed. The exact words used by her were:- “aurat ko chaku mar hua hai”. CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 8 of 84 This information was reduced to writing in the form of DD No. 13-A, Exhibit PW50/1. Thereafter, an FIR was registered at Police Station Mandawali, under Section 302 IPC and SI Radhey Shyam arrived at the spot at about 6:35 pm. He was followed by Inspector Satya Pal Singh and the Crime Team. 13. Shivani Bhatnagar was taken to Swami Dayanand Hospital, where she was declared as having been brought dead. However, on the persuasion of Rakesh Bhatnagar, the deceased was also taken to Apollo Hospital, where also, she was declared as having been brought dead. 14. The Crime Team lifted 10 chance prints from the sweetmeat box, wooden bowls containing namkeen and biscuits, cups of tea and the refrigerator. On 25.01.1999, the Crime Team further lifted chance prints from a perfume bottle and lipstick. Blood samples were also seized. 15. According to the prosecution, the person who brought the invitation and the sweetmeat box and who had given his name as ‘Sharma’ while speaking to Rakesh Bhatnagar over the phone, was the killer and he had entered Navkunj Apartments at 2:40 pm on 23.01.1999 after making an entry in the register maintained at the gate, giving his name as Rajiv Bhatnagar and his address as House No. 311, Tribune Colony, Chandhigarh and indicating that the apartment to be visited was B-42 for the purpose of an invitation. According to the said register, the said person departed from Navkunj Apartments at 15:10 hours. 16. The post mortem examination of the dead body of Shivani Bhatnagar was conducted by a Board of Doctors consisting of Dr R. K. Sharma, Additional Professor, Department of Forensic Medicine (AIIMS), Dr D. N. Bhardwaj, Associate Professor and Dr S. K. Gupta, Assistant Professor. As per the post mortem report, the following injuries were found on the dead body:- CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 9 of 84 (i) Stab wound measuring 2 cm x .75 cm (on the left front of chest) elliptical in shape. (ii) Stab wound elliptical in shape over left neck measuring 1.5 cm x 0.5 cm x 1 cm deep. (iii) Stab wound elliptical in shape over left neck measuring 1 cm x 0.5 cm over right neck. (iv) Stab wound measuring 1.5 cm x 0.5 cm situated 2 cm below right mandible and 9 cm from right mastoid over right neck. (v) Stab wound 2 cm x 0.75 cm x subcutaneous tissue deep over right neck situated 0.4 cm from midclavicular point. (vi) Incised wound 1 cm superficial over right angle of mandible. (vii) Contused abrasion measuring 4 cm x 3 cm over front of the neck situated 12 cm below chin. (viii) Multiple contused abrasions over lower lobe neck and front of upper left chest. (ix) Multiple contused abrasions over lower right neck ranging from 0.2 cm x 0.3 cm in an area of 12 cm x 6 cm. (x) Ligature mark around the neck measuring in breadth 0.5 cm circumference 35 cm. In their opinion, the cause of death of Shivani Bhatnagar was asphyxia as a result of ante mortem strangulation by ligature. Injuries No. 1-6 were caused by a sharp edged weapon and were said to be ante mortem in nature. As per the post mortem report, injuries No. 1 and 4 were sufficient to cause death of a person in the ordinary course of nature. 17. Appellant R. K. Sharma, an IPS officer, was posted as an Officer on Special Duty in the Prime Minister’s Office from 02.07.1997 to 23.04.1998. He was also posted as a Director (Vigilance), Air India at Mumbai from 23.04.1998 to 30.06.2000. In connection with his said duties, the appellant R. K. Sharma was said to be in CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 10 of 84 possession of various secret/ classified documents. It is the prosecution case that Shivani Bhatnagar used to visit him in the Prime Minister’s Office to gather information and their frequent meetings developed into intimacy. The appellant R. K. Sharma used to make frequent phone calls to Shivani Bhatnagar and vice versa. They also used to meet each other after office hours. It is the case for the prosecution that Shivani Bhatnagar had gone to London and remained there from 08.03.1998 to 07.06.1998 except for a period from 08.04.1998 to 29.04.1998, when she had returned to India as she was unwell. It is alleged that during her stay in London, she had confided in her roommate Smt. Saijal Shah (PW83) that she was deeply in love with the appellant R. K. Sharma and that she was also pregnant. 18. It is the case of the prosecution that the relationship between the appellant R. K. Sharma and the deceased Shivani Bhatnagar developed to such an extent that they had decided to get married after divorcing their respective spouses. Shivani Bhatnagar gave birth to a male child in October, 1998 and she asked her sister Sevanti (PW26) to inform R. K. Sharma about the birth of a baby boy. However, by that time, the appellant R. K. Sharma was apparently no longer interested in Shivani Bhatnagar. This, allegedly, irked Shivani Bhatnagar and she allegedly threatened to ruin the life and career of R. K. Sharma by completely exposing him. Because of this, the appellant R. K. Sharma is alleged to have made up his mind to eliminate Shivani Bhatnagar and, therefore, entered into a conspiracy with the co-accused to have her killed. 19. It is through the call details of the deceased, appellant R. K. Sharma, Rakesh Bhatnagar and the co-accused that, according to the prosecution, they were able to unravel the conspiracy behind the murder of Shivani Bhatnagar. It is the case of the prosecution that the accused Shri Bhagwan played a key role in the conspiracy resulting in the murder of Shivani Bhatnagar. The cell phone No. 9811008825, which CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 11 of 84 is alleged to have belonged to Shri Bhagwan, was also regarded as one of the most important pieces of evidence by the trial court. We shall deal with this in greater detail below. For the present, it is sufficient to note that as per the prosecution, Shri Bhagwan was well known to the appellant R. K. Sharma as Shri Bhagwan’s father Onkar Sharma, a retired Haryana police officer, had worked under the appellant R. K. Sharma and that even after his retirement, the said Onkar Sharma continued to be in regular touch with R. K. Sharma. He continued to meet R. K. Sharma during 1997- 1998, when R. K. Sharma was in Delhi and was posted as an Officer on Special Duty in the Prime Minister’s Office. 20. Another accused Ved Prakash Sharma was also connected to Shri Bhagwan inasmuch as Shri Bhagwan’s wife is Ved Prakash’s sister. Ved Prakash @ Kalu, another accused, is the nephew of Shri Bhagwan being his sister’s son. It is the case of the prosecution that both Ved Prakash Sharma and Ved Prakash @ Kalu were introduced to the appellant R. K. Sharma by Shri Bhagwan. 21. Another accused Satya Prakash was also connected with Shri Bhagwan inasmuch as he was a tenant of Shri Bhagwan at Gurgaon. It is alleged that Shri Bhagwan, Satya Prakash, Ved Prakash Sharma and Ved Prakash @ Kalu were all in the business of real estate and had operated from Gurgaon as well as Delhi. 22. Another connection between the accused Satya Prakash and the appellant R. K. Sharma was that during 1996, it was alleged that Satya Prakash being the sarpanch of village Utlodha, had invited the appellant R. K. Sharma, who was posted as DIG/ range, Rohtak to inaugurate a portion of the school at the said village. Even a plaque was fixed on the wall of the school on which the names of both R. K. Sharma and Satya Prakash are engraved. Photographs of the function were also collected by the police during investigation. It was also alleged that Satya Prakash visited R. K. Sharma’s residence at N-57, Greater Kailash-I, New Delhi, when he was posted as an CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 12 of 84 Officer on Special Duty in the Prime Minister’s Office during the year 1997-1998. It is through Satya Prakash that accused Pradeep Sharma is connected with the rest of the accused and with the appellant R. K. Sharma. Pradeep Sharma is Satya Prakash’s nephew (sister’s son) and was also known to the other co-accused Ved Prakash Sharma, Shri Bhagwan and Ved Prakash @ Kalu. 23. In January, 1999, the appellant R. K. Sharma was posted at Mumbai. He came to Delhi on 12.01.1999, ostensibly, to meet the Joint Secretary, MOCA and CVC. But, no such meeting actually took place. He stayed at Ashoka Hotel. On 13.01.1999, the co-accused Shri Bhagwan accompanied by Satya Prakash, Ved Prakash Sharma and Ved Prakash @ Kalu met him at Ashoka Hotel, allegedly in Shri Bhagwan’s white Esteem car bearing registration No. HR-26-G-9800. The appellant R. K. Sharma contacted Shivani Bhatnagar over the phone and called her to Ashoka Hotel. She came there along with her son. She was pointed out to the co-accused and her photograph was also given by the appellant R. K. Sharma to Satya Prakash. After Shivani Bhatnagar left Ashoka Hotel, R. K. Sharma went with all the accused in their Esteem car to Navkunj Apartments to show them the location of her flat. 24. Thereafter, R. K. Sharma returned to Mumbai and attended a Vertical Interaction Course for IPS at CIRT, Pune from 18.01.199 to 23.01.1999, possibly with the intention to create an alibi. In order to monitor the events that were planned, he borrowed a mobile phone No. 9822028128 from his friend Suresh Kukreja and it is through this phone that R. K. Sharma had conversations with Shri Bhagwan. 25. Satya Prakash, as a part of the agreed conspiracy, contacted his nephew Pradeep Sharma and required him to liquidate Shivani Bhatnagar and to meet him at Sunder Nagar Market on 19.01.1999. On that date, Pradeep Sharma met Satya Prakash, as arranged, and the other co-accused Shri Bhagwan was also present. Satya CRL.A. Nos.357/08, 486/08, 396/08, 338/08, 751/09 & 752/09 Page 13 of 84 Prakash, once again, persuaded Pradeep Sharma to take up the task and allegedly assured him that he would be reinstated in HUDA, where he had worked and that the case pending against him in Chandigarh would be finished in case he did the job. It is alleged that Pradeep Sharma demanded a sum of ` 3 lacs in addition to the above mentioned favours and this was conveyed to Shri Bhagwan, who paid a sum of ` 50,000/- to Pradeep Sharma as advance. It is alleged that R. K. Sharma talked to Shri Bhagwan on 19.01.1999 and gave his approval for the deal. 26. The job was to be done on 21.01.1999 in the afternoon. But the plan could not materialize as Shivani Bhatnagar had left her house before the time fixed for the execution of the plan. It is alleged that R. K. Sharma called co-accused Shri Bhagwan on 22.01.1999 and they agreed that Shivani Bhatnagar would be killed on 23.01.1999 and necessary directions were given by Shri Bhagwan and Satya Prakash to Pradeep Sharma. On 23.01.1999, Pradeep Sharma reached Patparganj, opposite Mother Dairy, where he purchased one kilogram of besan ke laddu from a sweet shop and he along with Satya Prakash went in the Esteem car (belonging to Shri Bhagwan) to the said Navkunj Apartments. It is alleged that Pradeep Sharma was also carrying a piece of electric wire concealed on his person. Ved Prakash Sharma and Ved Prakash @ Kalu were also said to be present near Navkunj Apartments. They gave a green signal to the accused Pradeep Sharma, who entered Navkunj Apartments by pretending to be one Rajiv Bhatnagar from the Tribune, Chandigarh, who brought an invitation on behalf of one Adhikari for Mr Rakesh Bhatnagar. Pradeep Sharma, after entering the apartment and also having had a talk over the phone with Rakesh Bhatnagar, completed the task of killing Shivani Bhatnagar and left Navkunj Apartments. On their return journey, Pradeep Sharma informed Shri Bhagwan over the phone that the work had been done and who, in turn, conveyed the message to R. K. Sharma