Crl.A.No.561/2008 & 624/2008 Page 1 of 48 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 02.02.2009 Judgment delivered on: 16.03.2009 + CRL.A. No.561/2008 VINOD KUMAR …Appellant Through : Mr.L.K.Verma, Advocate. versus STATE …Respondent Through : Mr.Pawan Sharma, Advocate. CRL.A. No.624/2008 VIJAY PAL ..... Appellant Through : Mr.Dinesh Piarni, Advocate. versus STATE …Respondent Through : Mr.Pawan Sharma, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. Crl.A.No.561/2008 & 624/2008 Page 2 of 48 1. On the intervening night of 13/14.08.2001 Const.Bhagwan Das PW-16, who was on patrol duty along with Const.Avtar, saw a Honda City car bearing registration No.DL-3C-S-2356 parked near Hill View Apartment, Block No.78, CPWD Colony, Vasant Vihar, New Delhi in which a lady, wearing a lehenga and chuni, having wounds on her head and chest, was lying on the front left seat of the car and a man sitting on the rear seat was crying with his face covered with a handkerchief. PW-16 transmitted the said information to Police Station Vasant Vihar where HC Shri Kumar PW-13, recorded DD No.4A, Ex.PW-13/A at 12.45 A.M. on 14.08.2001 noting that two people were found injured at the afore-noted place. 2. HC Laxmi Chand PW-9, on patrol duty in a PCR van who also got the information reached the spot and removed the injured lady to Safdarjung Hospital. Likewise, the injured man was taken in another PCR van and got admitted at Safdarjung Hospital. 3. A copy of the DD Entry, Ex.PW-13/A, was handed over to SI J.K.Bhardwaj PW-18, for investigation. Accompanied with Const. Narender he reached the spot. Simultaneously, other police officers, namely, SI Dalip Kumar PW-20 and Inspector Inder Singh PW-29, who had also received the information reached the spot. On learning that the injured persons had been removed to Safdarjung Hospital, SI J.K. Bhardwaj PW-18 and Insp. Inder Singh PW-29, proceeded to the hospital where they were informed that the injured lady whose name is Rajni @ Geetika (hereinafter referred to as the “deceased”) has been declared brought dead as noted in the MLC Ex.PW-32/A and the injured man named Vijay Pal (herein after referred to as the “accused Crl.A.No.561/2008 & 624/2008 Page 3 of 48 No.1”) was admitted in an injured condition as per MLC Ex.PW-32/B. Inspector Inder Singh PW-29 moved an application Ex.PW-29/X for recording the statement of Vijay Pal on which the doctor opined that the patient was not fit for statement. Thus, the MLC of the deceased and of accused No.1 was obtained by the police officers. We note that on the MLC Ex.PW-32/B of accused No.1 following has been recorded:- “H/o gun shot injury to left thigh; pt. Brought to casualty by police at 1.03 A.M. o/e pt conscious, oriented ........ 1. Gun shot wound seen on anterior wall of left thigh around 1.5 cm diameter with powder burn seen surrounding wound. No exit wound seen. 2. Hematoma over right parietal region.” 4. The pant of accused No.1 which he was wearing at the time of his admission in the hospital was handed over to Const.Sunil Kumar PW-5, who seized the same vide memo Ex.PW-5/A. 5. Thereafter PW-18 and PW-29 returned to the spot. Since no eye- witness was found present at the spot or at the hospital, PW-29 made an endorsement, Ex.PW-29/A, on the copy of the DD Entry, Ex.PW- 13/A, and forwarded the same through Const.Abdul Rashid PW-16 to the police station for registration of a FIR. Abdul Rashid took Ex.PW- 29/A to the police station and handed over the same to HC Ram Kushal PW-22 who recorded the FIR No.235/2001, Ex.PW-22/A. 6. At the spot, PW-29 prepared the site plan, Ex.PW-29/B, recording therein the place at point 'A' where the car was found Crl.A.No.561/2008 & 624/2008 Page 4 of 48 parked. On thorough search of the car, one live cartridge was found therein which was seized vide memo Ex.PW-18/A. PW-18 prepared the sketch Ex.PW-18/S of the said cartridge. Blood was found staining the car seat covers. The blood-stained portions of the seat covers of the car, Ex.PW-18/2, PW-18/3 and PW-18/4 were cut and seized vide memo Ex.PW-18/B. Pieces of broken glass of the window of the left side of the car were seized vide memo Ex.PW-18/R. The hair, Ex.PW- 18/4, found near the left door of the car were seized vide memo Ex.PW-18/B. The Honda City car, Ex.PW-18/1, was seized vide memo Ex.PW-18/T and was handed over to SI Daleep Kumar PW-20. 7. Const.Chandan Singh (Photographer) PW-12 and Const.R.N. Rawat (Finger Print Expert) PW-17, from the crime team were summoned. 9 photographs, Ex.PW-12/P10 to Ex.PW-10/P18; negatives whereof are Ex.PW-12/P1 to Ex.PW-12/P9 were taken. Chance finger-prints were attempted to be lifted. (Vide report Ex.PW- 17/A, PW-17 opined that no chance prints could be lifted from the car.) 8. Since the key of the car could not be traced or found, PW-20 requisitioned the services of M/s Balaji Crane Service and towed the car from the spot to the police station. 9. In the meanwhile the father and the brother of the deceased got information of the deceased dying. They reached Safdarjung Hospital, where in the presence of PW-29 they identified the deceased as Rajni @ Geetika; statements Ex.PW-29/E and Ex.PW-29/F of the father and the brother respectively were recorded to said effect. Crl.A.No.561/2008 & 624/2008 Page 5 of 48 10. Since the deceased was declared brought dead at the hospital, her body was sent to the mortuary, where Dr.Arvind Theragaonkar PW-1, conducted the post-mortem at about 12.00 P.M. on 14.08.2001 and gave his report, Ex.PW-1/A, which records the following external ante-mortem injuries:- “1. Fire arm entry wound on right front parietal region of skull with laceration of scalp in the area of 9 cm X 5 cm skull vault exposed with deglobin of local scalp in the area of 3.5 cm X 3.5 cm with fracture of right parietal bone interiorly. There was blackening of margins of perforating fracture of skull bones and margins of scalp. The margins of fractured bone were inverted and fracture bone tips were invaginated into brain matter. The pulp of brain matter was protruding from fracture side. Size of perforation of wound by which the entry wound was 1.4 cm X 1.4 cm. The sieging of hair were seen around the entry wound. No tattooing, charring, pallets were seen around the wound. Entry wound was located 8 cm above the right eye brow and 5 cm right lateral to mid body line and 9.5 cm above and medial to tragus of right ear. 2. Exit wound was present on left temporal region size was 1 X 0.3 cm. It has everted margins and irregular border. It is 4.5 cm above the tragus of left ear. 9.5 cm lateral to left eye brow. Track was directed from right to left medially downwards and laterally. 3. Fire arm entry wound was seen on the chest in the center on oval shape. 1.6 X 1.5 cm in size with abraded temperate collar of the wound 2 mm size on upper and lower margin of the wound. The wound is located 4 cm below supra sternal notch 12 cm above xiphistarnum 13 cm from medial to left axillary fold and 1 cm medial of right axillary fold. No tattooing charring pallets etc seen at the wound. The margin of the wound irregular, inverted. 4. Tear of right ear lobe 0.5 cm with 0.5 cm with nail abrasions on right ear lobe 0.3 cm X 0.1 cm in size.” 11. The general observations recorded in the post-mortem report Ex.PW-1/A, are as under:- “Dressed in pink coloured designed chunni with blood stains, with white bra, pink blouse and pink lehnga, white panty. No cut mark was seen on the clothes. Pink bangles Crl.A.No.561/2008 & 624/2008 Page 6 of 48 were seen on arm (25 nos). All intact. Rigour mortis was present all over the body. PM staining present on back. Eyes closed, no sub conjunctive hemorrhage was seen. Illegible.” 12. Needless to state, two entry wounds of the bullet, one on the chest and the other on the right fronto parietal region of the skull of the deceased were noted; one exit wound pertaining to the first wound aforesaid was noted; meaning thereby that one bullet had pierced outside the skull. He opined that the cause of death was cardio respiratory failure due to conjoint effect of injury to the brain and heart caused by discharge from a fire-arm from a distance of approximately contact range. It was opined that both injuries caused by the fire-arm were individually and collectively sufficient to cause death in the ordinary course of nature. 13. PW-1 recovered one bullet from the body of the deceased pertaining to the wound on the chest. The deceased was wearing 25 pink coloured glass bangles. The clothes worn by the deceased and her blood sample on a gauze were preserved. After the post-mortem the same i.e. the bullet, the glass bangles, the blood stained clothes of the deceased and her blood sample on a gauze were handed over by PW-1 to SI J.K.Bhardwaj PW-18 who seized the same vide memo Ex.PW-18/Q. 14. On 14.8.2001, Inspector Inder Singh PW-29, recorded the statement Ex.PW-4/DA of Rahul Khari PW-4, the brother of the deceased, under Section 161 Cr.P.C. wherein he disclosed that on 13.08.2001, around 10.30 P.M. the deceased along with her husband accused No.1 had left her parental house for her matrimonial house in Crl.A.No.561/2008 & 624/2008 Page 7 of 48 a Honda City car bearing no.DL-3C-S-2356. That the deceased was wearing a mangalsutra, a gold chain, gold bangles, gold ring and other jewellery at that time. That he had taken a photograph of the deceased and accused No.1 from his camera at the time of their departure from the house. That accused No.1 was having his mobile phone having No. 9810062488 with him. 15. On 16.08.2001, Inspector Inder Singh recorded the statement Ex.PW-29/G of accused No.1, translated version whereof reads as under:- “I state that I reside with my family at the aforementioned address and work as a property dealer. That we live with my uncles in a joint family. That the Honda City car was received by Ved Pal who is the son of my uncle in his marriage and we keep using cars belonging to each other. That I was married to Rajni who is resident of Wazirpur village in the month of February. That about four months ago while returning from Gurgaon our car met with an accident due to which my wife sustained injuries on her arm and face and had been residing in her matrimonial home since then. That on 13.08.2001 I went to Wazirpur village Ashok Vihar where my wife used to reside in Honda City car to bring her back. That at about 10.30 taking Rajni along I left for my house. That when I reached Sector 1 R.K. Puram Munirka I saw that a boy with a bag in his hand was standing at the Ber Sarai stand. That my wife was sitting on the front seat. That I stopped the car and the boy said that he has to go to Mahipalpur on which I replied that we are going to Ayanagar. That the boy told me to drop him at Vasant Kunj and sat on the rear seat. That while going ½ k.m. towards the road which was going to Kishan Nagar he pointed the katta at my wife and pulled the trigger. That I got scared and he told me to drive the car as per his instructions. That thereafter he pointed the katta at me, threatened me and then talked to somebody saying that 'Sanjiv I am coming'. That after driving for about 800-900 meters we met 2 men on the road near the forest and he asked me to stop the car. That one of the two men who had come later and was about 35-40 years in age sat on the rear seat and they made sit in the middle. That the other boy started to drive the car and they kept inquiring from me about my belongings. That they took my watch Crl.A.No.561/2008 & 624/2008 Page 8 of 48 and wallet and removed the jewellery i.e. mangalsutra and ring of my wife. That they had also taken out Rs.10,000/- lying in the desk of the car and kept the same in a polythene. That they once said that a bullet has fallen in the car. That they asked me to cover my face with a handkerchief and kept driving the car for about quarter of an hour. That they shot a bullet at my leg due to which I became unconscious. That thereafter a PCR car took me to hospital where I learnt that my wife has died due to the gun shot. That I can identify the said persons if they are brought in front of me. That they had also taken my phone. I have read my statement and the same is correct.” 16. On 17.08.2001, PW-29 recorded the statement Ex.PW-2/DA of Nepal Singh PW-2, the father of the deceased, wherein he stated that the marriage of the deceased and accused No.1 was solemnized on 20.02.2001 as per Hindu rites and ceremonies. That the deceased used to mostly reside at her parental home even after the marriage because of her illness and that accused No.1 used to frequently meet the deceased. That on one occasion, accused No.1 had taken the deceased for an outing in an old car and that the deceased had told him on return that accused No.1 had taken her towards Palam and that the car had broken down on the way and that after getting the car repaired from a mechanic, they had returned home. That he had gifted an Accent car to the deceased at the time of her marriage but accused No.1 used to mostly bring an old worn out car to their house. That on 01.04.2001 accused No.1 again took the deceased in the same old car for an outing and did not tell her about his plans for outing despite her repeated inquiries about the same. That on said day, late night they were telephonically informed that the deceased and her husband i.e. accused No.1 had met with an accident and had been admitted in Kalyani Hospital. That on reaching the hospital they Crl.A.No.561/2008 & 624/2008 Page 9 of 48 learnt that the deceased had suffered grievous injuries while the accused No.1 had suffered minor injuries. That the deceased had told him that accused No.1 drove towards Manesar and that he was driving the car in a strange manner; she had a feeling that he wanted to kill her. He i.e. accused No.1 deliberately drove the car on the wrong side and collided with a truck. His family did not pay heed to the suspicion of the deceased, thinking that it was a case of an accident. That the deceased remained in her parental home because of the injuries sustained by her in the said accident and that accused No.1 used to dilly dally in taking the deceased back to her matrimonial house. That finally, on 13.08.2001, the accused No.1 came in a Honda City car to their house to take the deceased to her matrimonial home. That they had asked him to come during the daytime, but he came around 8.20 P.M. That during the time accused No.1 was present in their house number of calls were received by him on his mobile phone and he had brief conversations in a hushed tone with the caller. That whenever a call was received on the mobile phone, accused No.1 used to quickly go outside the house to speak with the caller. That they could hear only the words 'Pauna Pauna' (three-quarter, three-quarter). That around 10.30 P.M., accompanied by the deceased, accused No.1 left their house in the Honda City car. That he told accused No.1 to keep calling on the way and also on reaching his house; but he did not call even once. That when accused No.1 had come late he got angry and told accused No.1 that it was not safe to travel late in the night since incidents of loot are rampant; to which accused No.1 replied that robbers kill only those people who do not part with their belongings. That the deceased had told him Crl.A.No.561/2008 & 624/2008 Page 10 of 48 several times that accused No.1 used to taunt her because of her illnesses. That he is fully convinced that accused No.1 had a role to play in the murder of the deceased. 17. On the same day i.e. 17.08.2001, PW-29 recorded another statement Ex.PW-4/DB of Rahul Khari, wherein he stated that on 13.08.2001 at around 8.30 P.M. a number of calls were received on the mobile phone of accused No.1. That during the same period, accused No.1 also made calls from his mobile phone. That between the time 10-10.30 P.M., when repeated calls were coming on the phone of accused No.1, he went outside to receive the said calls. That during the said time he once heard accused No.1 saying: 'Vinod I am coming in 45 minutes.....are things ready?....today the job is to be completed'. That the deceased was wearing a gold chain, mangalsutra, 4 gold bangles and 2 rings at that time. That they could not understand the implications of the conversation of the accused No.1 but now understand the purport thereof and he is fully convinced that accused No.1 has a role in the murder of the deceased. 18. Thereafter PW-29 took Nepal Singh PW-2 and Kamlesh PW-28, the mother of the deceased, to the office of the Sub-Divisional Magistrate where Mr.Peter Bara PW-8, the Sub-Divisional Magistrate, recorded their statements Ex.PW-2/A and Ex.PW-8/A respectively. In their respective statements before the SDM, the parents of the deceased disclosed the facts as recorded in the statement Ex.PW-2/A. Crl.A.No.561/2008 & 624/2008 Page 11 of 48 19. Since the parents and the brother of the deceased had accused the husband of the deceased of having murdered her, the needle of suspicion pointed towards the accused No.1 and thus he was called to the police station for interrogation on 18.08.2001. He was interrogated by Inspector Inder Singh PW-29 in the presence of SI J.K. Bhardwaj PW-18, SI Dalip Kumar PW-20 and Mahi Pal Singh PW-10, the brother of the father of the deceased. Accused No.1 made a disclosure statement Ex.PW-10/A confessing his guilt and disclosed that Vinod S/o Raghubir (co-accused who has been acquitted) and Vinod S/o Babulal (accused No.2) had assisted him in the crime of murdering his wife. He disclosed that he knew where the key of the Honda City car was thrown and that he can get recovered the key of the Honda City car. He also disclosed that he can help in getting apprehended accused No.2. Accused No.1 was arrested at 3 P.M. on 18.08.2001 as per arrest memo Ex.PW-18/D. 20. Thereafter accused No.1 led the police party consisting of amongst others, SI J.K.Bhardwaj PW-18, Inspector Inder Singh PW-29 and SI Dalip Kumar PW-20. They were accompanied by Mahi Pal Singh PW-10, to the place where the Honda City car was seized by the police in the night of 13.8.2001. Accused No.1 pointed to a place and got recovered the key Ex.PW-18/7 of the Honda City car from near a wall in the park adjoining Hill View Apartments, Vasant Vihar. The same was seized vide seizure memo Ex.PW-18/F. 21. Thereafter accused No.1 led the police team, which inter alia consisted of Inspector Inder Singh, SI J.K.Bhardwaj and SI Dalip Kumar to village Maidan Garhi and pointed out a house, informing them, that Crl.A.No.561/2008 & 624/2008 Page 12 of 48 it was the residence of accused No.2; who was found in his house and was arrested at 5.30 PM as per arrest memo Ex.PW-18/H. Accused No.2 was interrogated in his house by Inspector Inder Singh PW-29 who recorded his statement Ex.PW-18/G as per which he confessed to his guilt. He stated that the wrist watch which he was wearing belongs to accused No.1 and was given to him by accused no.1 at the time of the incident; that the gold chain which he is wearing was pledged by him and that he had redeemed the same by making necessary payment from the sum given to him by accused No.1 for assisting him in the murder of the deceased; that he can get recovered the mobile phone of accused no.1 which was given to him by accused no.1 at the time of the offence; that a part of jewellery which the deceased was wearing at the time of the incident is with him and that he can get recovered the same; that he can get recovered the desi katta with which he had fired a shot at the head of the deceased; that he can help in getting apprehended accused Vinod s/o Raghubir. 22. Pursuant thereto, the wrist watch, Ex.PW-18/8, and the gold chain Ex.PW-18/9 worn by accused No.2 at the time of his arrest were seized by the police vide memo Ex.PW-18/K. Accused No.2 got recovered two gold bangles Ex.P-1 and a ring Ex.P-2 from a cupboard in a room on the first floor of his house. The same were seized vide memo Ex.PW-18/L. Thereafter accused No.2 led the police team to the hills near Maidan Garhi village and got recovered a desi katta Ex.PW-18/11 and a live cartridge Ex.PW-18/13 from the bushes. The desi katta was having a spent cartridge Ex.PW-18/12 in its chamber. Crl.A.No.561/2008 & 624/2008 Page 13 of 48 The desi katta, live cartridges and spent cartridge were seized vide memo Ex.PW-18/P. PW-18 prepared the sketch Ex.PW-18/N of the said katta and cartridges. Thereafter accused No.2 led the police team to a temple opposite Freedom Fighters Colony, Neb Sarai and got recovered a broken mobile phone, Ex.PW-18/10, having IEMI No.449127881838411 from the grass underneath a tree in the park. The same was seized vide memo PW-18/M. 23. Since both the appellants had indicted Vinod s/o Raghubir (herein after referred to as the “accused No.3”) the police began a lookout for him but he could not be traced. The accused No.3 was finally arrested on 03.10.2002. He was interrogated by Inspector Rajender Sharma PW-31, in the presence of SI J.K. Bhardwaj PW-18. The third accused made two disclosure statements Ex.PW-18/W dated 03.10.2002 and Ex.PW-31/B and 07.10.2002 confessing to his guilt and stated that a part of jewellery which the deceased was wearing at the time of the incident is with him and that he can get recovered the same. 24. Thereafter accused No.3 led the police party, consisting of Insp. Rajender Sharma PW-31, SI J.K.Bhardwaj PW-18 and SI Dalip Kumar PW-20 to a room in his rented accommodation at Tukhlakabad Extension where he removed one loose brick from the wall of the room and got recovered one gold bangle Ex.P-3, two silver toe rings Ex.P-4 and one gold nose pin Ex.P-5 from behind the brick. The same were seized vide memo Ex.PW-18/X. Crl.A.No.561/2008 & 624/2008 Page 14 of 48 25. On 22.10.2001 test identification parade of the jewellery, namely 2 gold bangles and one ring recovered at the instance of the accused No.2 was conducted by Dr.Kamini Lau PW-24, who was posted as Metropolitan Magistrate at the relevant time. The order sheets relating to the said TIP proceedings are Ex.PW-24/A and the same records that Nepal Singh, the father of the deceased, PW-2, had correctly identified that the said articles belonged to the deceased. The applications filed by SI Inder Singh PW-29, for conducting the TIP proceedings and for the supply of the copy of the TIP proceedings before the Metropolitan Magistrate are Exhibits PW-24/C and PW-24/B respectively. 26. On 30.11.2002 test identification parade of the jewellery