Runeet Gulathi v. State

16. Learned counsel for the Appellants further contended that the footage obtained from Apollo Pharmacy which was produced by the prosecution in order to show the involvement of Appellant/Mahima in the commission of crime is not admissible in the eyes of law as the CRL.A. 1175/2018 & other connected matters certificate stipulated under Section 65-B of the Evidence Act was not furnished by the prosecution. In support of his contention, the learned counsel for the Appellants relied upon the case of Anvar P.V. vs. P.K. Basheer and Ors reported in (2014) 10 SCC 473. He further contended that authenticity of the alleged CCTV footage is also doubtful as the CD of the CCTV footage was neither sent for FSL examination nor the original DVR was seized by the Investigating Officer.

17. While concluding his arguments, learned counsel for the Appellants contended that learned Trial Court erred in convicting Appellant/Mahima for the offence punishable under Section 302 of the IPC as no charge was framed against her under Section 302 of the IPC.

18. Lastly, it was urged by the learned counsel for the Appellants that in view of the aforesaid facts and circumstances, the prosecution has failed to prove the case against the Appellants beyond reasonable doubt and had failed to complete the chain of events and sought acquittal of the Appellants. Submissions of Appellant/Abhay Dewan

19. Mr. Hrishikesh Baruah, learned counsel for the Appellant/Abhay Dewan in CRL.A. 1268/2018 submitted that the present case is based on circumstantial evidence and in such cases it is a well settled law that prosecution must establish a complete chain of events which is conclusive in nature and consistent with the hypothesis of guilt of the accused and the prosecution in the present case has not been able CRL.A. 1175/2018 & other connected matters to prove the guilt and incriminate Appellant/Abhay Dewan in the commission of the alleged offence.

20. He further contended that the case of prosecution revolves around two-star witnesses, i.e. PW-19 (Vishal Verma) and PW-23 (Indal). With regard to the testimony of PW-23 (Indal), he has categorically denied going to the ‘Nahar’ around 3:45 - 4:00 am on 18.07.2012 and his testimony is of complete denial. To substantiate his arguments learned counsel for the Appellant relied upon the case of Raja Ram Vs. State of Rajasthan reported in 2005 (5) SCC 272 and the case of Girdhari Vs. State NCT of Delhi reported in 2011 (15) SCC 373.

21. Learned counsel for the appellant further contended that no Test Identification Parade was conducted and the Appellant/Abhay Dewan was identified for the first time by the star witness, PW-19 (Vishal Verma) in Court, which has no value and cannot be relied upon. He further contended that PW-19 (Vishal Verma) is a planted witness and the testimony of the said witness is purely hearsay evidence and the same cannot be relied upon for convicting the Appellants in the present case as: - • there was no mention of PW-19 (Vishal Verma) in the missing report (Ex. PW3/A). • that the statement of PW-19 (Vishal Verma) recorded under Section 161 Cr.P.C. was only recorded on 23.07.2012 which proves that he was introduced as last seen witness at a later stage. • that PW-19 (Vishal Verma) had disclosed the registration number of Swift car as DL2C AN 3335 only on 23.07.2012, however, PW-49 (Inspector Anil Sharma) deposed that he came to know about the noninvolvement of Swift car bearing registration no.

DL CAN 4654 only on 25.07.2012, which proves that the statement of PW-19 (Vishal Verma) under Section 161 Cr. P.C. was not even recorded on 23.7.2012.

22. In support of his contention, learned counsel for the Appellant relied upon the case of V.C. Shukla & ors Vs. State (Delhi Administration) reported in 1980 (2) SCC 665; Rameshwar Singh vs. State of Jammu & Kashmir reported in 1971 (2) SCC 715; Sheikh Hasib vs. State of Bihar reported in 1972(4) SCC 773 and Girdhari vs. State (NCT of Delhi) reported in (2011) 15 SCC 373.

23. The learned counsel for the Appellant further contended that there is no motive for the Appellant to commit the alleged offence. He contended that as per the case of the prosecution the alleged offence had been committed by the Appellant in order to extort an amount of Rs.25 lacs by way of ransom from the father of the deceased, however, the prosecution failed to produce any documentary evidence that the parents of the deceased were having money out of the sale proceeds of a property, situated in Malkaganj. He further contended that the allegation of motive was based on the testimony of PW-18 (Sanjeev Kapoor), however, the witness in his statements dated 19.07.2012, 30.07.2012 and 15.10.2012 recorded under Section 161 of the Cr.P.C and in his examination-in-chief failed to CRL.A. 1175/2018 & other connected matters raise any allegation of motive and the same has been introduced only for the first time on 06.10.2016 during his cross examination. He further contended that the importance of motive in a case of circumstantial evidence is paramount and the absence of motive in a case of circumstantial evidence is critical to the version of the prosecution and since no motive has been proved by the prosecution in the present case, the Appellant deserves acquittal. To substantiate his arguments learned counsel for the Appellant relied upon the case of Surinder Pal Jain Vs. Delhi Administration reported in 1993 Supp. 3 SCC 681; Arjun Marik Vs. State of Bihar reported in 1994 Supp 2 SCC 372 and Sukhram Vs. State of Maharashtra reported in

24. He further contended that the Appellant/Abhay Dewan, Appellant/Mahima Dewan and Appellant/Jatin were apprehended from Nepal Border on 23.07.2012 and kept in illegal detention from 25.07.2012 to 26.07.2012, even, the Call Detail Records of Appellant clearly depicts that at the relevant time they were at Nepal Border which proves that the documents prepared by the Investigating Agency i.e. arrest memos, search memos and seizure memos were all fabricated documents and were an afterthought. He further contended that the learned Trial Court erred in not giving equal weightage to the defence witnesses, which evidently sustains the fact that the prosecution has manipulated the records of arrest. To substantiate his arguments, learned counsel for the Appellant relied upon the case of Adambhai Sulemanbhai Ajmeri and Others vs. State of Gujarat reported in 2014 (7) SCC 716.

25. Learned counsel for the Appellant further contended that it is important to point out that a person cannot be convicted on the sole basis of recovery effected pursuant to disclosure statement made by the Appellant/accused. He further contended that as per Section 25 & Section 26 of the Indian Evidence Act any confession made before a police officer is not admissible and the recoveries pursuant to disclosure are also barred under Section 27 of the Evidence Act, if the fact discovered, are not in consequence of the statement of the accused; and also, if the fact discovered, are not otherwise accessible to all and sundry. Learned counsel further contended that the recoveries effected at the instance of the Appellant are doubtful as: - • there were 31 documents being arrest memos, disclosure statements and seizure memos which were executed on 25.07.2012 but only three police witnesses i.e. PW49 (Anil Sharma), PW25 (Manoj Raghav) and Pyarelal have signed these documents and out of these three police witnesses, Pyarelal was never examined which proves that the documents have been fabricated. • That at the time of recovery of pistol and clothes from the house of Abhay Dewan (C2/16, Sector 15, Rohini, Delhi) despite the family members being present, none of them were made witness to the recovery. • That no local police were informed and nor were they made part of the investigation during the recovery proceedings from the areas (Amar Colony, Rohini, Prem Bari) wherein the investigating officer of P.S Maurya Enclave had no territorial jurisdiction. • That no site plan during the recovery proceedings was prepared and the only site plan which is available on record was of the place from where the dead body of the deceased was recovered vide Ex.PW4/A and place from where the mobile phone of the deceased was recovered vide Ex. PW25/Z. • That the disclosure statement and the recovery memo clearly depict that no blood-stained clothes were recovered. However, while describing the clothes of the accused persons at S. No. 10 ‘a’ and ‘b’ of the DNA Report (Ex.PW-1/B), it erroneously brings forth that the clothes are blood stained, pointing to the conclusion that evidence and records had been manipulated by the police authorities. • That the recovery from the Maruti Swift car no. 3335 from DMC Booth, opposite H.No.B-140/141, Amar Colony, Lajpat Nagar-4, Delhi is doubtful as various articles(one clip of bandage, one bandage, one empty cartridge case lying in the middle of both front seats, one front pellet lying inside the adjacent seat of the driver seat of the car, some coins, three SIM cards, one paper cutter and one water bottle) were recovered from the aforesaid swift car and the same were planted against the Appellant because the smaller CRL.A. 1175/2018 & other connected matters window pane on the right rear side of the swift car was broken.

26. He further contended that the abovementioned recoveries are not admissible as evidence in the eyes of law because no genuine and sincere efforts were made by the investigating officer to validate the recoveries with the presence of any Independent/Public witnesses. To substantiate his arguments, learned counsel for the Appellant relied upon the case of Surendra vs. State of Rajasthan reported in 2011(15) SCC 78 and Mohmed Inayatullah vs. State of Maharashtra reported in (1976) 1 SCC 828.

27. Learned counsel for the Appellant further contended that the medical & scientific evidence is not corroborating with the version of the prosecution because there is a huge time gap between the recovery of Pistol and Bullets and their forensic examination. He further contended that the Ballistic expert Dr. N.P. Waghmare who prepared the report had not been examined and instead PW-52 (R. Enivyan) had proved the report, who was not the actual author of the ballistic analysis report. He further contended that there were two ballistic reports and both are contradictory to each other and had been wrongly relied upon by the Trial Court. To substantiate his arguments, learned counsel for the Appellant relied upon the case of Murarilal vs. State of M.P. reported in AIR 1980 SC 531 and Santa Singh vs. State of Punjab reported in AIR 1956 SC 526.

28. Counsel for the Appellant lastly urged that the Trial Court had not correctly appreciated the facts and circumstances of the case; hence, the impugned judgment was liable to be set aside. Submissions on behalf of Appellant/Jatin

29. Mr. Ajay Pipaniya, learned counsel for the Appellant/Jatin in CRL.A. 107/2019 adopted the arguments advanced by the learned counsel for the co-Appellants. In addition to the arguments addressed by other counsel, Mr. Pipaniya contended that as per the testimony of PW-45 (Amit Bhatia), Toll Officer, the Hyundai accent DL 4CAJ 9666 crossed the Faridabad toll way to Delhi at 01:57:23 and as per the Post mortem report (Ex. PW-37/A), Shivam Kapoor (the deceased) was dead by this time, which establishes the fact that Appellant/Jatin had been falsely implicated in the present case.

30. He further contended that the charge under Section 120-B IPC and 364 IPC are baseless as the record reveals that the case of the prosecution is that Appellant/Abhay Dewan and Appellant/Runeet Gulati conspired to abduct the deceased for ransom and during the course of commission of crime/abduction they fired one bullet in the stomach of the deceased which as per the testimony of PW-37 (Dr. Vijay Dhankar) was sufficient enough to cause death in ordinary course of nature, hence, the Trial Court erred in convicting Appellant/Jatin for the aforesaid offences.

31. Learned counsel for the Appellant relied on the impugned judgment passed by the Trial Court to the extent that the Trial Court has acquitted the Appellant for the offence punishable under Section 27 of the Arms Act on the ground that the prosecution failed to establish that the second bullet was fired by the Appellant and contended that since no charge is made under Section 27 of the Arms Act, CRL.A. 1175/2018 & other connected matters conviction of the Appellant – Jatin under Section 302 IPC rendered by the Trial Court, is illegal and arbitrary.

32. He further contended that the present case is based on circumstantial evidence and in such cases it is a well settled law that prosecution must establish a complete chain of evidence which is conclusive in nature and consistent with the hypothesis of guilt of the accused and the prosecution in the present case had not been able to prove the guilt and incriminate Appellant/ Jatin in the commission of the alleged offence and as such he deserves acquittal. Submissions on behalf of the State

33. Ms. Aashaa Tiwari, learned APP for State, on the other hand, strongly refuted the submissions made by the counsel for the Appellants and submitted that the impugned judgment is based on proper appreciation of the facts and evidence, no interference in the impugned judgment is called for by this Court; that the statements of prosecution witnesses and medical/scientific evidence are corroborative in nature and the prosecution has been able to prove its case beyond reasonable doubt.

34. Ms. Tiwari, further submitted that the test identification parade is only a procedural aspect and failure to hold the said parade in the present case for the identification of the Appellants will not be fatal to the case of prosecution and it will not make the evidence of their identification in Court inadmissible. She further submitted that Appellant/Runeet Gulati was a childhood friend of PW-19 (Vishal Verma) and was specifically named as a suspect in the missing report (Ex.PW3/A), hence there was no need for conducting a TIP for the CRL.A. 1175/2018 & other connected matters identification of Appellant/Runeet Gulati. To substantiate her arguments learned APP for State relied upon the case of Mukesh vs. state(NCT of Delhi) reported in 2017 (6) SCC 1; Malkhan Singh vs. State of MP reported in JT 2003(5) SC 323; Anwar@Addha vs. State NCT of Delhi reported in 2017 LawSuit(SC) 1542; Rafikul Alam & Others Vs The State of West Bengal reported in 2008 Crl. L.J 2005 and Noor Ahammad & ors Vs State of Karnataka reported in (2016) 3 SCC 325.

35. Learned APP for State further submitted that the prosecution had placed on record the CCTV footage of Apollo Pharmacy, situated at A-16, Sector 9, Rohini, Delhi which clearly indicates that Appellant/Mahima Dewan in the intervening night of 17.07.2012 and 18.07.2012 had entered the said pharmacy at 2:43:30 hrs and had purchased certain items (one liquid Suthol & four bandages) and left at 2:46:29 hrs. The said fact is also corroborated with the testimony of the Pharmacist, PW-40 (Varun Kumar) who was on duty at the said outlet in the intervening night of 17.07.2012 and 18.07.2012. Subsequently, no objection has been raised to prove the CCTV footage neither at the time of exhibiting the CDs nor at any other stage prior to the pronouncement of judgment of the Trial Court. As such, the Appellants may not raise an objection to the mode of proof of the CCTV footage at the stage of appeal because the CCTV footage is admissible in the eyes of law. To substantiate her arguments learned APP for State relied upon the case of Kundan Singh Vs State reported in 2016(1) DLT (CRI), Sonu @ Amar vs. State Of Haryana reported in 2017 8 SCC 570; Shafhi Mohammad vs. State of Himachal Pradesh reported in (2018) 2 SCC 801.

36. Learned APP for State further submitted that motive is a relevant factor in all criminal cases, whether based on direct or circumstantial evidence, but the inability to establish motive in a case of circumstantial evidence is not always fatal to the prosecution version. To substantiate her arguments learned APP for State relied upon the case of State of Uttar Pradesh vs. Babu Ram reported in AIR 2015 SC 1735; State of Himachal Pradesh vs. Jeet Singh reported in AIR 1999 SC 1293 and Ranganayaki vs. State by Insp of Police reported in (2004) 12 SCC 521.

37. She further submitted that the prosecution has relied upon various recoveries which were pointed out at the instance of the Appellants and there is no cogent reason to doubt the aforementioned recoveries on the ground that the same are effected in the presence of the police witnesses and the same are inadmissible as the same were not supported with the presence of an independent witness. To substantiate her arguments learned APP for State relied upon the case of State Govt of NCT of Delhi Vs. Sunil & Anr reported in (2001) 1 SCC 652 and Gian Chand & ors vs. State of Haryana reported in JT 2013(10) SC 515.

38. Ms. Tiwari, further submitted that the medical/scientific evidence are corroborating the testimony of prosecution witnesses, however, there is a minute variance between medical evidence and oral evidence in the present case because Dr. Vijay Dhankar (who conducted the post mortem of the deceased) has deposed in his cross examination that CRL.A. 1175/2018 & other connected matters the time of death of the deceased was 12:45 pm on 18.07.2012, which is contradictory to his own post-mortem report(Ex.PW-37/A), wherein it is stated that death occurred approximately 2-3 hours after the last meal. She points out that as per the oral evidence (testimony of police witnesses) the deceased had died in the intervening night of 17.07.2012 & 18.07.2012. She further submitted that it is a settled law that in case of a conflict between oral evidence and medical evidence, the former is to be preferred, wherein medical evidence is only suggestive and not conclusive in nature and to substantiate her arguments learned APP for State relied upon the case of Umesh Singh vs. State of Bihar reported in (2013) 4 SCC 360 and Rakesh & ors vs. State of Madhya Pradesh reported in (2011) 9 SCC 698;)

39. Learned APP for State further submitted that there is no manipulation in the records pertaining to the arrest of the Appellants as the police witnesses PW-25 (HC Manoj Raghav), PW-43 (Ct Rakhi) and PW-49 (Insp. Anil Sharma)) who arrested the Appellants have consistently deposed on the same lines and there is no cogent reason to doubt the credibility of the alleged arrest memos. She further submitted that it is the case of the Appellants that Appellant/Abhay Dewan, Appellant/Mahima Dewan & Appellant/ Jatin were apprehended at Nepal Boarder and were illegally detained in the police station from 24.07.2012 and Appellant/Runeet Gulati was illegally detained from 18.07.2012 to 25.07.2012 at PS Maurya Enclave. However, the Appellants are completely silent in their statements recorded under Section 313 Cr.P.C regarding their illegal detention and arrest from Nepal Border, which eventually CRL.A. 1175/2018 & other connected matters demolishes their version leading to an adverse inference against them. To substantiate her arguments learned APP for State relied upon the case of Prahlad vs. State of Rajasthan reported in 2018 SCC OnLine SC 2148 and Raj Kumar vs. State of MP reported in 2014(2) JCC 1217.

40. She further submitted that it cannot be held as a rule of universal application that the testimony of prosecution witnesses becomes unreliable merely because there is a delay in recording the statement of prosecution witness under Section 161 Cr.P.C and in support of her argument she relied upon the case of V.K Mishra and ors vs. State of Uttarakhand and ors, reported in (2015) 9 SCC 588.

41. Learned APP for the State further contended that vide amended charge dated 05.02.2013, Appellant/Mahima was charged under Section 302 Cr. P.C. and was also charged under Section 120-B of the IPC hence no interference in the impugned order on sentence is called for by this Court.

42. Counsel for the state lastly urged that the evidence produced on record as well as the circumstances proved by the prosecution, form a complete chain pointing unequivocally towards establishing the guilt of the accused. Based on these submissions counsel for the State urged that this Court may not interfere with the well-reasoned order passed by the learned Trial Court convicting the Appellants for the alleged offence. Credibility of Material witnesses/ Last Seen/ Testimonies

43. In the present case the police machinery was set into motion when the father of the deceased PW-18 (Sanjeev Kapoor) made a missing report at about 2:45 am (Ex.PW3/A) which was registered vide DD No. 8A at Police Station Subzi Mandi. English translation of the relevant portion of Missing report (Ex.PW3/A) registered vide DD No. 8A is reproduced herein below: DD NO. 8A DATED 18.07.12 P.S. SUBZI MANDI, DISTT.

NORTH DELHI Sanjeev Kapoor S/o Shadi Lal Kapoor R/o 14, Gandhi Square, Malka Ganj Delhi-110007 Information regarding Missing and handing over Time: 2.45 AM: At this time, it is entered that the person mentioned in Column No.2 came present at the Police Station and got recorded to the following effect: “My son namely Shivam aged 20 years had left for an excursion at 9.30 PM in a usual manner by a Scooter No. DL 1SS 2887 and had not returned till 12 O’Clock in the night. We, therefore, contacted him on his mobile no. 8586807081 but the same was switched off. We made a search of him and found parked his scooter near Malka Ganj Gurudwara. I could’t know anything about my son. We kept on making a search of him in our own way till now. My report may be lodged and the whereabouts of my son may be ascertained. The description of my son is as follows: height 5’ 7”, complexion fair, stout body. He is wearing T-shirt and ‘Pajama’ and slippers of NIKE in his feet. My son is mentally fit. There is a cut mark on the right side of the forehead of my son. Some people have told me that my son was seen in the company of Runeet who resides in our neighborhood at about 11.00 PM. I suspect him. The information regarding missing was entered in the ‘Rojnamacha’ and a call was made at No. 100 which was attended on Channel No. 116 by Constable Ankur Tomar, NO. 1914/ PCR. After lodging a report regarding missing, a copy of CRL.A. 1175/2018 & other connected matters the same after having been separated is being handed over to SI Sombir as per the directions of the SHO who will initiate proper action in the said regard. Scribed by: HC/DO Note: It is a true copy. Sd/-Illegible HC Bheem Singh No. 394-N/(-sic-) DO, P.S. Subzi Mandi

44. It is relevant to point out here that perusal of the missing report, (Ex.PW3/A) shows that the complainant i.e PW-18 (Sanjeev Kapoor) father of the deceased raised suspicion against the accused/Appellant/Runeet Gulati in the complaint who resided in their neighborhood. The Missing Report has been proved by HC Bhim Singh, who stepped into the witness box as PW-3 and deposed as under: “On 18.07.2012, I was posted at Police Station Subzi Mandi and was working as Duty Officer from 12 at Night to 8 AM. On that day, at about 2:45 (night) Sanjeev Kapoor S/o Shadi Ram R/o 14, Gandhi Square, Malkaganj, Delhi, came to the police station and gave a missing report of his son Shivam aged 20 years. I recorded the DD vide DD No. 8A dated 18.07.2012 at 2:34 AM and handed over the same to SI Somvir Singh. The copy of the said DD is Ex.PW3/A bearing my signatures at point A.”

45. At about 4:27 am, PW-8 (Constable Ravinder) received a call from the mobile phone number 9990787947 informing that “VIPS College ke samne Haider Pur Water Plant Ekta Camp Jhuggi ke pass AE Block Pitam Pura ek dead body padi hui hai”. The relevant portion of PCR form (Ex.PW-8/A) is reproduced herein below:- “PCR. No. received 136 Report received from VAN 18/07/2012 04:55:29 HALAT KE LIYE WAIT HAI 18/07/2012 05:11:59 CALL IS TRUE EK MALE AGE ABOUT 28 YEAR HT 5 FOOT 7 INCH RANG GORA HEALTHY BODY HAI FACE PER KAPDA BANDHA HAI AUR HATH BANDH RAKHE HAI BLUE JEANS AUR BLACK AND GREEN T SHIRT PAHNI HAI MITTI KA TEL DALKAR JALANE KI KOSHISH KI HAI LEKIN HAL KA JALA NAHI ISKE LEFT GARDAN AUR RIGHT SIDE PATE ME KOI NUKILI CHIJJ MARI HAI EK CHOTA BACHOHA NAME INDAL AGE 8 YEARS JO PADOSH KI JHUGGI ME RAHTA HAI NE BATAYA EK WHITE COLOUR KI GADI NO. 4654 ME ISKO FAKE KAR MACHIS KI TILLI FAKE KAR BHAG GAYE QRT STAFF MOKE PAR C/ROOM INF 18/07/2012 05:15:24 ACP AND SHO WITH STAFF MOKE PAR C/ROOM INF 18/07/2012 05:39:27 MOKA HAWALE CRIME TEAM BHI MOKA PAR C/ROOM INF.”

46. The said PCR form (Ex.PW8/A) has been proved by PW-8 (Constable Ravinder), who deposed that: “On the intervening night of 17/18.7.2012 I was posted as constable in PCR/PHQ from 8 PM to 8AM. On that day at about 4.27 AM, I received a call from mobile No. 9990787947 that VIP College ke samne Haiderpur water plant Ekta Camp Jhuggi ke paas AE Block Pitampura ek dead body padi hui hai.” I forwarded the said message through computer on commander net of PCR for circulation. On 01.09.2012 at 4 PM my statement was recorded by the IO. Copy of PCR form is Ex.PW8/A.”

47. As per the PCR Form the call was made from mobile phone number 9990787947 which was registered in the name of Munshi Singh Yadav, who was examined as PW-36. PW-36 (Munshi Singh Yadav) during his examination-in-chief deposed that: “I had seen working in a Water Treatment Plant, Sonepat, Haryana in the year 2012. On 18.07.2012, I was at my said house and at about 4.00 AM one boy with the name of Inder (Court observation: name given by the witness has been cross-checked and witness reiterates that name was Inder) came to my jhuggi along with other persons and informed me that one dead body had been thrown from one car by someone near the gate of VIP College. I was at that time Pradhan of Jhuggies of Ekta Camp. I also went there and saw a dead body of a young male whose hands were found tied with the help of garam patti (crape bandage) and were above the head. His eyes and mouth were also similarly covered with white tape. That deceased was wearing jeans pants and Tshirt (half sleeves). I informed the police from my mobile number 9990787947. Police had reached at the spot in my presence. Police had also recorded my statement.”

48. Pursuant to the information given by PW-36 (Munshi Singh Yadav), PW-9 (HC Rishipal) received an information at 04:30 am from Control Room, North-West ‘that a dead body is lying at Water Tank Ekta Camp, AE Block, near the Jhuggis of Haiderpur, VIPS College’ and the same was registered as DD No. 6A (Ex.PW-9/A). English CRL.A. 1175/2018 & other connected matters translation of the relevant portion of DD No. 6A (Ex.PW-9/A) registered at PS Maurya Enclave is reproduced herein below: - “DD No. 6A Dated 18.07.12 PS Maurya Enclave Information received through PCR Call and departure Time 4.30 AM. At this time,it is entered that Control Room North West has informed through telephone that a dead body is lying at Water Tank Ekta Camp, AE Block, near the Jhuggis of Haiderpur, VIPS College. From Constable Ravinder No. 7547/PCR Tel. No. 9990787947. The information so received through PCR Call was entered into the Rojnamacha and a copy of the report was handed over to ASI Satdev who along with Constable Sandeep, NO. 2101/NW left for the spot and will initiate proper legal action. Inspector Anil Kumar has also left for the place of occurrence. Scribed by: HC/DO Sd/-Kapil (In Hindi) HC Kapil 332/NW”

49. On receipt of DD No. 6A (Ex.PW-9/A), PW-42 SI Satya Dev alongwith Constable Sandeep went to the place of incident which was a cemented road near VIPS Institute and found a dead body of young male, who was wearing jeans and T-shirt of blue colour. PW-49 (Inspector Anil Sharma) joined the team of PW-42 (SI Satya Dev) at the spot, who in his testimony deposed that “I found a male dead body lying there. The age of the deceased was approximately 20-25 years and height was 5 feet and 6 inches, wearing blue jeans and blue T- Shirt which were in semi-burnt condition. Both the hands of the deceased were found tied with crape bandage and his mouth and eyes CRL.A. 1175/2018 & other connected matters were also found wrapped with doctor tape. The legs of dead body were facing towards the cemented road and the head was on the conrete. One burnt plastic bottle was also found lying on the spot. Its make was Kinley. Its cap was also lying separately at the spot. There were cut marks over the face, temple region and elbow of the said body. PCR team had reached at the spot before my arrival.” PW-49 (Inspector Anil Sharma) prepared the site plan (Ex.-PW-49/B) and also preapred rukka which was exhibited as (Ex-PW49/A). Relevant portion of Rukka (Ex-PW49/A) reads as under:- “Note: It is true copy of original. To The Duty Officer P.S. Maurya Enclave Delhi Sir, It is submitted that while on government duty today on receipt of aforesaid DD No. 6A I, the Inspector, along with the accompanying staff left for the place of occurrence via Outer Ringh road, VIPS Institute, Pitampura towards the Jhuggis of Ekta Camp, AU Block Pitampura and reached the road at a distance of about 100 Mtrs. from the Outer Ringh Road where a male dead body aged about 25-30 years, height about 5 Ft. 6 Inches, stout build, round face, wheatish complexion was found. The deceased is waring a blue coloured jeans (make Mufti) having a white coloured cloth belt on the buckle whereof, the words “Numero Uno” are written, a blue green coloured T-shirt, white vest and a brown underwear having a red coloured broad elastic bearing the words “Chromozome” in English. A ‘Kara’ made of steel and a red coloured thread are present on the right hand of the deceased and he is bare feet. The legs of the deceased are towards cemented road whereas the remaining portion of the body was lying in flat condition on the graveled ground. The hands of the deceased were CRL.A. 1175/2018 & other connected matters tied with crepe bandage and a white coloured doctor tape was present on the eyes and mouth of the deceased. The Pants, T-Shirt and vest of the aforesaid deceased were found to be in half burnt condition. A plastic bottle on the lid whereof the words “KINLEY” are written was found near the deceased in melted condition. The smell of burning and that of oil was emanating therefrom. The Crime Team was called at the spot and the same was got inspected and photograhed. An inspection of the dead body was made. The hands, face and scalp of the deceased were found to be in half burnt condition. A punctured wound was found in the abdomen over the navel of the deceased along with a cut mark on the left forearm and many cut marks on the biceps of left arm of the deceased. When tape was removed from the mouth and eye of the deceased, a deep cut mark was found on the left temple and while removing the tape, blood started oozing out from there. The exhibits were lifted from the place of occurrence and those were taken into Police possession as a piece of evidence by means of this memo. The dead body has not yet been identified. The dead body has been got preserved in the mortuary of BJRM Hospital. No eye witness could be found at the spot. The inspection of the spot and the circumstances prevailing over there disclose the commission of an offence punishable under Sections 302/201 IPC. Hence, the aforesaid writing has been sent to the Police station through ASI Satyadev for the purpose of registration of a Case (FIR) and the number of the same may please be intimated after its registration. The information in the aforesaid regard may be sent to the higher officers through special messenger. I, the Inspector, am busy at the spot commencing investigations. Date and time of offence: 18.07.12 time unknown’ Place of occurrence: Road leading towards Ekta Camp Jhuggi, AU Block, Pitampura from VIPS Institute (at a distance of about 100 Mtrs.), Outer Ring Road Date and time of dispatch 18.07.12 at 7.50 AM CRL.A. 1175/2018 & other connected matters of writing: Sd/- Anil Sharma (In English) Insp. Anil Sharma P.S. Maurya Enclave DD No. 9A at 8.10 AM FIR No. 180/12 u/s 302/201 IPC, P.S. Maurya Enclave Dt. 18.04.12 Sd/- Illegible HC/DO Anita, No. 44/NW PIS NO. 28940602 P.S. Maurya Enclave”

50. A message was transmitted from the control room to the Mobile Crime Team, North West District and on reciept of the aforesaid information, SI Ramesh Chand along with HC Sudhir (photographer) and Ct. Tinu Pal (fingerprint proficient) arrived at the spot and prepared a detailed crime team report (Ex.PW-29/A). English translation of the Crime Team Report (Ex.PW29/A) is reproduced herein below: - “Brief of SOC and any other advice to IO: On receipt of the call, I reached the place of occurrence i.e. Near Ekta Camp, Ekta Camp Road where a male unknown dead body was laying aside the road leading towards camp from Ring Road. The age of the deceased was about 30 years and had a stout built. The hands of the deceased were tied with red crepe bandage (used in pain). White doctor tape was present on the head and eyes of the deceased and he was wearing blue coloured T-shirt and blue Jeans. The deceased was set ablaze by way of pouring inflammable material between the face and the legs as a result whereof the face and legs were charred. A ½ Ltr. Half burnt bottle CRL.A. 1175/2018 & other connected matters of KINLEY was lying near the deceased and its blue coloured lid and three coins of Rs. 2/- each was lying aside road. There was a small hole on the stomach of the deceased which seems to be a bullet injury. There was an injury mark on the head of the deceased on which doctor tape was tied. On removing the bandage, a sharp cut mark of about 7 CM was found on the left side of the forehead. Photographs of the spot were taken. Sd/- Illegible SI Ramesh Chand D-1537 PIS 16040055”

51. Perusal of the Crime Team Report (Ex.PW29/A) reveals that the crime team reached at the spot and carried out the inspection during which, they took the photographs (Ex.PW-30/A[1] to A10) and lifted the pieces of burnt clothes of the deceased, one semi burnt crape bandage (garam patti), white doctor tape stained with blood which was used for tying the mouth and eyes of deceased. Further various articles (semi burnt plastic bottle along with its lid, bloodstained concrete, three coins of Rs. 2/) lying near the dead body and earth control samples were lifted from the spot and were seized vide seizure memo (Ex. PW-42/A) and (Ex. PW42/B). Subsequently, one hue and cry notice (EX. PW-49/C) was also issued and a wireless message was also flashed regarding the details of dead body on ZIP net. PW-49 (Inspector Anil Sharma) received information that the dead body was identified as of Shivam Kapoor son of Sanjeev Kapoor and relatives of the deceased were called to identify the dead body. Corroborating the version of the aforesaid police witnesses, PW-49 (Inspector Anil Sharma) investigating officer has deposed that: - “PCR team had reached at the spot before my arrival. I informed my seniors about the recovery of abovesaid dead body and called staff from the PS. Inquiry was made from various people of that area to ascertain the identity of the deceased. I also tried to contact PCR but could not contact him. I also learnt through PCR officials that they had come to know that dead body had been thrown from a Swift car of white color. Crime team was also summoned. Crime team inspected the said spot and also took the photographs of the spot from various angles. Nothing was recovered from the clothes of the deceased for his identification. I collected the exhibits from the sports i.e., pieces of burnt clothes, piece of semi-burnt crape bandage, one blood smeared doctor tape, one plastic bottle along with its lid, bloodstained concrete, burnt concrete and earth control. Separate pullandas of these articles were prepared and sealed with the seal of “AS” and gave them

┌───────────────────────────────────────────────────────────────────────────────────────────┐
│        serial no. 1288/12 (Ex.PW11/B) on 19.07.2012, is reproduced                        │
│        below:-                                                                            │
│                    “........In   the   presence     of   the   witnesses                  │
│                    mentioned hereinafter, the Doctor at mortuary                          │
│                    of    Dr.     B.S.A.      Hospital,   Rohini    after                  │
│                    conducting the Post-Mortem Examination of                              │
│                    deceased Shivam Kapoor, R/o 14, Gandhi                                 │
│                    Square, Malka Ganj, Delhi, produced an                                 │
│                    envelope duly sealed with the seal of ‘DEPT.                           │
│                    of FM DR. B.S.A. H. GOVT. OF DELHI’                                    │
│                    containing ‘Blood on Gauze’ and a sample                               │
│                    seal of “DEPT. OF FM DR. B.S.A. H. GOVT.                               │
│                    OF DELHI”. The same has been taken into                                │
│                    police possession as a piece of evidence by                            │
│                    means of this memo. The seizure memo has                               │
│                    been prepared.......”                                                  │
│ CRL.A. 1175/2018 & other connected matters                             Page 129 of 159    │
│                                                                        2019:DHC:4753-DB   │
└───────────────────────────────────────────────────────────────────────────────────────────┘

0.[7] cm x 0.[6] cm present over the left side of front of forehead. The margins are inverted and abraded. Tattooing could not be ascertained due to burns present in the area.

(ii) Cruciate laceration 2cm x 1cm present over the front of middle of forehead, 5cm to the right of injury no. 1. The margins are everted. (iii)Punctured would 0.5cm x 0.5cm with contused and abraded margins present over the front of middle of abdomen just above the umbilicus. No blackening or tattooing was present around the wound.

(iv) Incised would 8cm x 2.5cm present over the left temporal region.

(v) Multiple parallel superficial incised wounds present over the front of middle of left arm.

(vi) Laceration 3cm x 1cm present over the back of left forearm just above the wrist.

(vii) Incised wound 1cm x 0.5cm present over the back of left forearm just above the wrist.

(viii) Incised wound 1cm x 0.5cm present over the back of right little finger.

(ix) Superficial to deep burn injuries present over the front of forehead, top of head, right cheek, parts of face, front and back of right arm and forearm, front and back of left arm, forearm and hand, public region, inner aspect of right and left thigh and leg, lateral aspect of right and left side of abdomen. The base is pale and there is no evidence of vital reaction at the margins. There is burning and singeing of hair at places mainly on face and scalp. There are dry fragile blisters at places on both upper limbs measuring 2mm to 5mm in size. As per my examination, injury no. 1 is entry wound which made its exit through injury no. 2. Track of such injury has been given in detail in para – xi(1) of my report. Injury No. 3 was also entry would of a bullet and track of injury has been mentioned in para (xi)(2) of my report and such bullet could not exit and during the postmortem, a jacketed bullet around 7mm in diameter was found lodged in paraspinal muscle such bullet was preserved, sealed and handed over to the police and such aspect is also mentioned in my report in relation to internal examination of abdomen. Internal examination of head, neck, chest, abdomen, pelvis and vertebral column are also correctly mentioned in my report in para (x). In my opinion, death was due to combined effect of craniocerebral damage and hemorrhagic shock consequent to the firearm injury to the head and abdomen. All injuries were antimortem and fresh at the time of death. Injury NO. 1 to 3 and corresponding internal injuries were caused by a projectile discharged through some firearm. Injury No. 1 to 4 were sufficient to cause death in the ordinary course of nature individually as well as combined with other injuries present on the body. All burn injuries were post-mortem in nature. My detailed postmortem report is Ex.PW37/A (running in eight pages) and bears my signatures on each page. I also handed over the sealed pullanda as detail mentioned in my post-mortem report to the police. On 23.08.2012 I was asked by the police to give opinion regarding the weapon used and a parcel having seven seals of AS was produced before me. Seals were found intact. I was opened and found containing a knife. I had also prepared the sketch of the knife and gave opinion that injury No. 4 to 8 as mentioned in my said report as Ex.PW37/A were possible with such knife. After such examination, the weapon was sealed with seal of the department and handed over to the concerned police official with sample seal. My such report is Ex.PW37/B which bears my signatures at point A. My both the reports are correct. (At this stage one sealed pullanda having seal of FSL VSN DELHI has been produced. Opened up. It contains one open envelope which further contains one paper cutter/knife. Same is shown to witness who states that his is the same cutter which was produced before him and after examining the same, he prepared report Ex.PW37/B). Cutter is exhibited as Ex.P-10.

127. PW-37 (Dr. Vijay Dhankar) during his cross-examination deposed as under: - “I examined the weapon on the basis of request of the police. Such application is Ex.PW37/DA (two pages). Police might have mentioned that the injury was possible with such knife in said letter. (Vol. I gave opinion on the basis of my observations). Total length of the knife was 22 cms. I cannot comment whether the police had shown the length of knife as 21.[5] cm when they seized it. It is correct that one day as mentioned in the probable time since death by me would mean

12.45 PM on 18.07.2012.”

128. After examining the testimony of Dr. Vijay Dhankar and the post mortem report (Ex.PW37/A) it is observed that the version of the aforesaid doctor with regard to the time of death of deceased has a lot of astonishing infirmities from its inception. As per his examination- CRL.A. 1175/2018 & other connected matters in-chief he has deposed that the deceased had died after 2-3 hours of his last meal, thus assuming that the time of the death could have been between 02:00-03:00 am on 18.07.2012. Contradicting his own post-mortem report (Ex.PW-37/A) he has deposed in his cross examination that the time of death of the deceased was 12:45 pm on 18.07.2012

129. However as per the oral evidence (testimony of police witnesses) the deceased had died in the intervening night of 17.07.2012 & 18.07.2012; PW-9 (HC Rishipal) received an information at about 04:30 am from Control Room, North-West ‘that a dead body is lying at Water Tank Ekta Camp, AE Block, near the Jhuggis of Haiderpur, VIPS College’ and the same was registered vide DD No. 6A (Ex.PW- 9/A). Further on receipt of DD No. 6A (Ex.PW-9/A), PW-42 (SI Satya Dev) alongwith Constable Sandeep went to the place of incident and found a dead body of young male, who was wearing jeans and T-shirt of blue & green colour. PW-49 (Inspector Anil Sharma) joined the team of PW-42 (SI Satya Dev) at the spot, who in his testimony deposed that ‘I found a male dead body lying there. The age of the deceased was approximately 20-25 years and height was 5 feet and 6 inches, wearing blue jeans and blue T-Shirt which were in semi-burnt condition. Subsequently a message was transmitted from the control room to the Mobile Crime Team, North West District and on reciept of the aforesaid information, SI Ramesh Chand along with HC Sudhir (photographer) and Ct. Tinu Pal (fingerprint proficient) arrived at the spot and prepared a detailed CRL.A. 1175/2018 & other connected matters crime team report (Ex.PW-29/A) and carried out the inspection during which they took the photographs (Ex.PW-30/A[1] to A10).

130. Keeping in view the facts of the present case, the photographs (Ex.PW-30/A[1] to A10) were perused in the Court room and as per the photographs which were taken by the crime team during 05:10 am to 06:40 am on 18.07.2012, it was evidently established that the deceased Shivam had died in the intervening night of 17.07.2012-

131. With regard to the evidentiary value of the medical evidence, the Hon’ble Supreme Court of India in a very recent judgment titled as Balvir Singh Vs State of Madhya Pradesh reported in 2019 SCC Online SC 233, has held that oral evidence always has supremacy over medical evidence as the latter can only be considered as opinionative in nature. Relevant part from the aforesaid judgment is extracted below:

132. The Hon’ble Apex Court in the case of Menoka Malik and Ors. vs. The State of West Bengal and Ors reported at AIR 2018 SC 4011, it has been held that the medical evidence is only corroborative in nature and not conclusive. The germane portion of Menoka Malik (Supra) is extracted below:

133. Hence, relying on the dicta of the Apex Court, we are of the view that the aforesaid contradiction in the post mortem report and the testimony of PW-37 does not demolish the version of the prosecution as the same are countered by the ocular testimonies which have a better standing than the medical evidence and prove that the deceased Shivam had died in the intervening night of 17.07.2012-

134. Moreover, as per the PCR Call (Ex.PW8/A) Constable Ravinder (PW-8) received a call that “VIP College ke samne Haiderpur water plant Ekta Camp Jhuggi ke paas AE Block Pitampura ek dead body padi hui hai”. Post Mortem Report(Ex.PW37/A) reveals that the death has occurred three hours from the last meal that is in between 11:00pm to 03:00am on the intervening night of 17.07.2012-18.07.2012, which strengthens the case of the prosecution that when Appellant/Abhay Dewan and Appellant/Mahima Dewan picked up Jatin at about 01:30 pm from Faridabad the deceased(Shivam) was alive. Scientific Evidence

135. As per the version of the prosecution, the Appellants had burnt the dead body of the deceased after murdering him, to conceal his identity which fact is corroborated from the post mortem report (Ex.PW.37/A) wherein it was opined that “there were burn mark present at places all over the body with singeing of hair at places. Also there were stain marks over the skin indicating contact with corrosive liquid. The base of burns was pale and dry friable blisters were present at places.”

136. Further substantiating the version of the prosecution, PW-32, Dr. Lingaraj Sahoo, SSO (Chemistry), FSL Rohini carried out the chemical examination and proved his report as Ex. PW32/A wherein he opined that the residue of kerosene was detected on exhibit no. 2 (black burnt clothes stated to be of deceased), exhibit no. 3 (partially burnt crape bandage) and exhibit no. 4 (partially burnt, melted bulged plastic bottle). Relevant portion of FSL.2012/C-6650 (Ex.PW.32/A) is reproduced below: Results of Examination Report On Chemical TLC & GC examination

(i) Exhibits 2, 3 & 4 were found to contain residue of kerosene.

(ii) Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in Exhibits 1A, 1B, 1C & 1D.

(iii) Petrol Kerosene Diesel or its residue could not be detected in Exhibits 5 & 6. *Exhibit 2 Brownish black burnt cloth pieces stated to be burnt clothes of deceased. *Exhibit 3 Brownish black partially burnt crape bandage stated to be burnt crape bandage *Exhibit 4 one partially burnt, melted bulged plastic bottle, stated to be one semi-burnt plastic bottle

137. PW-37 (Dr. Vijay Dhankar) conducted the post mortem on the body of the deceased and handed over 9 (Nine) Inquest Papers, Sealed Viscera along with blood sample, Sealed Scalp hair along with sealed bullet and DNA Samples of the deceased to PW-49 (Inspector Anil Sharma). Relevant portion of the post mortem report is reproduced herein below:- “Department of Forensic Medicine Dr. Baba Saheb Ambedkar Hospital (Govt. of NCT of Delhi) Rohini, Delhi – 110085 Post Mortem Examination Report POST MORTEM NO. 391/2012 Dated: 19 July 2012 of Shivam Kapoor @ Pandey S/o Sanjeev Kapoor of P.S. Maurya Enclave After the post-mortem examination the dead body was handed over to the I.O P.M. Report in original in 8 (Eight) pages along with:

1. 9 (Nine) Inquest Papers.

2. Sealed Viscera along with blood sample.

3. Sealed Scalp hair.

4. Sealed clothes.

5. Sealed Nail clipping

6. Sealed Teeth for DNA.

7. Sealed Bullet.

138. The facts mentioned by PW-37 (Dr. Vijay Dhankar, Specialist and HOD, Forensic Medicine, BSA Hospital, Rohini) in the Post Mortem Report (Ex.PW-37/A) in relation to handing over blood and DNA samples of the deceased to PW-49 (Inspector Anil Sharma) has also been reiterated by PW-37 in his testimony which is reproduced as under:- “.....My detailed post-mortem report is Ex.PW37/A (running in eight pages) and bears my signatures on each page. I also handed over the sealed pullanda as detail mentioned in my post-mortem report to the police. On 23.08.2012 I was asked by the police to give opinion regarding the weapon used and a parcel having seven seals of AS was produced before me. Seals were found intact. It was opened and found containing a knife. I had also prepared the sketch of the knife and gave opinion that injury no. 4 to 8 as mentioned in my said report Ex. PW37/A were possible with such knife. After such examination, the weapon was sealed with seal of the department and handed over to the concerned police official with sample seal. My such report is Ex. PW37/B which bears my signatures at point A. My both the reports are correct.”

8. Sample seal of the department. Handed over to Police personnel Signature ………. Name - Sunil Kumar Rank & P.S. – Constable M/Enclave Date and Time – 27/7/2012 at 4:00 pm. P.M. Report handed over by - Surender Tanwar”

139. Corroborating the aforesaid version, the investigating officer PW-49 (Inspector Anil Sharma) has deposed that: “After post-mortem, the doctor had handed over sealed pullandas containing viscera, clothes of the deceased, blood gauze, left and right nail clippings and bullet which was recovered from the body of deceased during the post-mortem along with sample seal. All these pullandas were taken into possession vide seizure memos already Ex.PW47/A[1] to A[5]. All said memos bear my signatures at point X. These exhibits were deposited in the malkhana of PS Maurya Enclave.”

140. Perusal of the testimony of the investigating officer reveals that ‘blood gauze and clothes of the deceased, left and right nail clippings and the bullet’ which was recovered from the body of the deceased during the post mortem were sealed in pullandas vide seizure memos Ex.PW47/A[1] to A[5] and the same were deposited in the malkhana of Police Station Maurya Enclave. HC Madan Lal stepped into witness box as PW-11 and deposed that: “On 19.07.2010[2] Inspector Anil Sharma again deposited two plastic boxes and five envelopes in sealed condition with the seal of DEPT.OF FM DR BSAH, GOVT OF DELHI with sample seal in the malkhana CRL.A. 1175/2018 & other connected matters and I deposited the same in the malkhana vide serial no. 1288/12 of register no. 19. The entry was made by me at Ex.PW11/B.”

141. English translation of Ex. PW-11/B whereby the aforesaid envelope containing ‘Blood Gauze of the deceased’ which was sealed with the Seal of ‘DEPT.OF FM DR BSAH, GOVT OF DELHI’ by PW-49 (Inspector Anil Sharma) and was deposited in the malkhana vide serial no. 1288/12 (Ex.PW11/B) on 19.07.2012, is reproduced below:- “........In the presence of the witnesses mentioned hereinafter, the Doctor at mortuary of Dr. B.S.A. Hospital, Rohini after conducting the Post-Mortem Examination of deceased Shivam Kapoor, R/o 14, Gandhi Square, Malka Ganj, Delhi, produced an envelope duly sealed with the seal of ‘DEPT. of FM DR. B.S.A. H. GOVT. OF DELHI’ containing ‘Blood on Gauze’ and a sample seal of “DEPT.

OF FM DR. B.S.A. H. GOVT. OF DELHI”. The same has been taken into police possession as a piece of evidence by means of this memo. The seizure memo has been prepared.......”

142. PW-49 (Inspector Anil Sharma) also recovered the clothes of the appellants at the instance of the appellants, which were sent for biological examination to the FSL. Relevant portion of the testimony of PW-49 (Inspector Anil Sharma) whereby the recoveries which were effected from Appellant/Abhay Dewan, is reproduced as under:- “Thereafter, accused Abhay led us to the second floor of same building. There was one gathari of clothes in a room. He took out one blue jeans and green color T-shirt from such Gathari claiming that he was wearing those at the time of incident. There were blood stains marks over those. These were also taken into possession vide memo Ex. PW25/Q which bears my signature at point B. He also got recovered keys of the car from one almirah of same room from its lower shelf. He claimed that the key of the car number DL2CAN-3335 make Swift and also revealed that said car was used in the commission of crime.....”

143. PW-1 (Manisha Upadhaya, Senior Scientific Officer (Biology) FSL, Rohini) examined the 24 parcels deposited by PW-49 (Inspector Anil Sharma) and deposed that:- “On 05.09.2012 24 parcels in sealed condition were received in our office in case FIR No. 180/12 of PS Maurya Enclave. The seal was found intact and tallied with the sample seal. I marked the parcel as parcel no. 1 to 24. On opening the parcel No. 1, I found a dirty blackish brown cloth tape alongwith the hair kept in a plastic container described CRL.A. 1175/2018 & other connected matters a blood stain medical/doctor tape and I marked the same as Ex. 1. On opening the parcel No. 2, I found blood stain concrete and I marked the same as Ex. 2. On opening the parcel No. 3, I found brownish blackish banyan and one brownish blackish underwear and I marked the same as Ex. 3a, Ex. 3b, Ex. 3C, Ex. 3d respectively. On opening the parcel No. 4, I found blood on gauge and I marked the same as Ex. 4. On opening the parcel No. 5, I found nail clippings (left) and I marked the same as Ex.5. On opening the parcel no. 6, I found nail clippings (right) and I marked the same as Ex. 6. On opening the parcel No.7, I found bunch of hairs and I marked the same as Ex. 7. On opening the parcel No. 8, I found a dirty metallic piece described as fired bullet and I marked the same as Ex. 8. On opening the parcel No. 9, I found a dirty metallic piece containing in a plastic contained described as fired bullet (front side of round) and I marked the same as Ex.9. On opening the parcel No. 10, I found one T shirt and one pant (Jeans) and I marked the same as Ex. 10a and Ex. 10b respectively. ON opening the parcel No,.11 found one lady’s top and one pajama (lower) and I marked the same as Ex. 11 and Ex. 11b respectively. On opening the parcel No. 12, I found one pant and I marked the same as Ex. 12. On opening the parcel NO. 13, I found one dirty nicker described as Barmuda/Kacha and I marked the same as Ex.13.........

XXXX XXXX XXX I examined the above said exhibits and blood was detected on all the above said CRL.A. 1175/2018 & other connected matters exhibits. My detailed biological report is Ex. PW1/B (three pages) bearing my signatures at point A on each page.”

144. Relevant portion of Serological report (Ex.PW-1/B) prepared by PW- 1 (Manisha Upadhaya, Senior Scientific Officer (Biology) FSL, Rohini) reads as under:- “RESULTS OF ANALYSIS Parcel ‘4’: One sealed envelope sealed with the seal of “Dr. BSAH Dept of FM GOVT. OF Delhi” containing exhibit ‘4’.

XXX XXXX XXXX Parcel ‘10’: One sealed cloth parcel sealed with the seal of “AS” containing exhibits ‘10a’ & ‘10b’. Exhibit ‘10a’: One T-shirt having very few light brown stains. Exhibit ‘10b’:One pant (jeans) having very few dark brown stains. Exhibit ‘11b’:One pyjama (lower) having very few dark brown stains. Parcel ‘12’: One sealed cloth parcel sealed with the seal of “AS” containing exhibit ‘12.’ Exhibit ‘12’:One pants having dirty brown stains Parcel ‘13: One sealed cloth parcel sealed with the seal of “AS” containing exhibit ‘13.’ Exhibit ‘13’:One dirty Nikker described as Barmuda/Kachha. Parcel ‘14: One sealed plastic bag sealed with the seal of “AS” containing exhibits ‘14a’, ‘14b’ & ‘14c’. Exhibit ‘14a’:Few dirty muddy netted covers described as removable sun shade (Jali.) Exhibit ‘14b’:Two pieces of dirty muddy seat cover described as head rest cover. Exhibit ‘14c’:Pieces of dirty muddy seat cover described as car seat cover.

XXXX XXXXXX XXXX RESULTS OF ANALYSIS

1. Blood was detected on exhibits ‘1’, ‘2’, ‘3a’, ‘3b’, ‘3c’, ‘3d’, ‘4’, ‘5’, ‘6’, ‘7’, ‘8’, ‘9’, ‘10a’, ‘10b’, ‘11a’, ‘12’, ‘13’, ‘14a’, ‘14b’, ‘14c’, ‘15’, ‘16’, ’17’, ‘18’, ‘19’, ‘20’, ‘21’, ‘22’, ‘23’ & ‘24’.

2. Report of serological analysis in original is attached herewith.”

145. PW41 (V. Shankarnarayanan, SSO, Regional Forensic Laboratory) carried out the biological examination of the clothes of the accused persons which they were wearing at the time of the incident and proved his report as Ex.PW41/A wherein he opined that as per the DNA/STR Analysis report blood of the deceased from the source exhibit ‘4’(Blood stained gauze cloth piece of deceased) was detected on ‘exhibit 10’(T-Shirt of accused Abhay Dewan), ‘exhibit 11b’(Pyjama of accused Mahima Dewan), ‘exhibit 12’(Pants of accused Runeet Gulati) and ‘exhibit 13’(Knickers of accused Jatin). Relevant portion of the FSL-2012/B-6661(Ex.PW-41/A) is reproduced herein below: - “RESULT OF ANALYSIS Blood was detected on exhibits ‘4’, ‘10a’, ‘10b’, ‘11a’, ‘11b’, ’12’, ‘13’, ‘14’, ‘19’ & ‘24’.

DNA EXAMINATION The DNA examination on the Exhibit ‘4’ i.e., Blood stained gauze cloth piece of deceased, exhibits ‘10a’ (i.e., T-Shirt of accused, Abhay Dewan), ‘10b’ (i.e. Pants of accused, Abhay Dewan), ‘11a’ (i.e. lady top of accused, Mahima Dewan), ‘11b’ (i.e. Pyajama of accused, Mahima Dewan), ‘12’ (i.e. Pants of accused, Runeet Gulati), ‘13’ (i.e. Knickers of accused, Jatin) & ‘24’ i.e. Paper Cutter, were subjected to DNA isolation. DNA were isolated from Exhibit ‘4’, Exhibit ‘10a’, Exhibit ‘10b’, Exhibit ‘11a’, Exhibit ‘11b’, Exhibit ‘12’, Exhibit ‘13’ & Exhibit ‘24’ and were amplified using Amp F/STR Identifier Plus Kits and these data were analysed by using GeneMapper IDx software. DNA profile was generated from Exhibit ‘4’, Exhibit ‘10a’, Exhibit “11b’, Exhibit ‘12’, Exhibit ‘13’. A complete DNA profile could not be generated from Exhibit ‘10b’, Exhibit ‘11a’ and Exhibit ‘24’ due to inhibitors/degradation of samples. However, DNA could not be isolated from Exhibit ‘14’ i.e., exhibit said to be recovered from uncovered Nala & Exhibit ‘19’ said to be recovered from car due to degradation of samples.

RESULTS Alleles from exhibit ‘4’ (i.e. Blood stained gauze cloth piece of deceased), were accounted in exhibits ‘10a’ (i.e T-shirt of accused, Abhay Dewan), ‘11b’, (i.e. Pyjama of accused, Mahima Dewan), ‘12’ (i.e. pants of accused, Runeet Gulati) & ‘13’ (i.e. Knickers of accused, Jatin). CONCLUSIONS The DNA analysis/STR analysis were performed on the source of exhibit ‘4’ i.e. Blood stained gauze cloth piece of deceased are sufficient to conclude that it is similar with that of the source of exhibit ‘10’ (i.e. T-Shirt of accused, Abhay Dewan), ‘11b’, (i.e. Pyjama of accused, Mahima Dewan), ‘12’ (i.e. Pants of accused, Runeet Gulati) & ‘13’ (i.e. Knickers of accused, Jatin)”

146. In view of the above Forensic Science Laboratory reports, Ex-PW- 32/A Ex-PW-1/B and Ex. PW-41/A coupled with the testimonies of relevant witnesses, it is evidently established that the residue of kerosene was detected on the black burnt clothes of the deceased and the blood of deceased (Exhibit ‘4’) matched with the blood detected on Exhibit ‘10’ (i.e. T-Shirt of accused, Abhay Dewan), Exhibit ‘11b’, (i.e. Pyjama of accused, Mahima Dewan), Exhibit ‘12’ (i.e. Pants of accused, Runeet Gulati) & Exhibit ‘13’ (i.e. Knickers of accused, Jatin), leading to the conclusion that all the accused persons had burnt the dead body of the deceased Shivam and conspired together for the commission of the offence. Ballistic Division Examination Report

147. As per the Post-mortem report (Ex.PW37/A), a jacketed bullet around 7.65 mm in diameter was recovered in the ‘para spinal muscle’ of the deceased and the same was sent to FSL for examination along with the other bullets recovered from the swift car.

148. PW-52 R. Eniyavan, Assistant Chemical Examiner (Ballistics), FSL Rohini, Delhi appeared on behalf of Dr. N.P. Waghmare Assistant Director (Ballistics) FSL Rohini, Delhi, who had carried out the Ballistic Examination and proved his report as Ex. PW52/A. The relevant portion of his statement recorded on 31.03.2017 is reproduced below- “Dr. N.P. Waghmare was working as Assistant Director (Ballistics) in our FSL Rohini, Delhi. He has since been transferred to Goa as Director (FSL). I had worked under him and, therefore, I am in a position to identify his signatures. In the present case also, I had assisted him. I have now been shown report No. FSL 2012/F7200 dated 22.11.2012. It bears his signatures at point A which I identify. Such report is now exhibited as Ex.PW52/A. As per report, in the present case, our FSL had received three pullandas having seal of “AS”. First pullanda was containing on improvised pistol of 7.65mm which was marked as F[1] in the laboratory. Second pullanda was containing one standard 7.65mm cartridge which was marked as A[1] in the laboratory. It seemed that due to oversight instead of “cartridge”, the same has been described as “cartridge case” at portion now encircled in red and marked X. Third pullanda was containing one standard 7.65mm cartridge which was marked as A[1] in the laboratory. It seemed that due to oversight instead of “cartridge”, the same has been described as “cartridge case” at portion now encircled in red and marked X. Third pullanda was containing one standard 7.65mm cartridge case which was marked as EC[1] in the laboratory. On examination, exhibit F[1] was found to be a firearm capable of chambering and firing. It was also found in normal working order after test firing CRL.A. 1175/2018 & other connected matters and cartridge A[1] was also found to be live ammunition before it was test fired. The pertinent characteristic marks of improvised pistol F[1] present on crime cartridge case i.e., EC[1] were compared with the test cartridge case, fired through same pistol F[1]. Comparison was done with the help of comparison microscope and keeping in mind the firing pin and breech face marks, it was opined that EC[1] had been fired through said firearm F[1]. Mark A[1] as well as mark EC[1] were accordingly opined as ammunition and part of ammunition respectively. Exhibits/remnants were sealed with the seal of “FSL NPW Delhi” and were sent back to the concerned SHO along with report. Said report is correct. I have also been shown report no. FSL2012/CFU- 8426 dated 17/12/2012 given by him. Such report also bears his signatures at point which I identify. Such report is exhibited as Ex.PW52/B.”

149. From the perusal of the aforesaid testimony, it is evident that the pistol (exhibit F[1]) which was recovered at the instance of appellant/Abhay Dewan from C2/16, Sec.15, Rohini, Delhi (residence of Abhay Dewan) was in a normal working condition and the said firearm was capable of chambering and firing. Further, keeping in mind the firing pin and breech face marks on exhibit ‘EC1’ it was opined that crime cartridge case marked exhibit ‘EC1’ had been fired through the pistol (exhibit F[1]). Relevant portion of the FSL-2012/F-7200 (Ex. PW52/A) is reproduced herein below: Results of Examination/Opinion (1)Exhibit ‘F1’ is a firearm as defined in Arms Act. It is an improvised pistol, capable of chambering & firing standard 7.65mm ammunition. (2)The exhibit 7.65mm cartridge marked ‘A1’ & one 7.65mm cartridge taken from laboratory stock were chambered and successfully test fired through exhibit improvised pistol marked ‘F1’. Hence, it is opined that exhibit improvised pistol marked ‘F1’ is in normal working order and exhibit 7.65mm cartridge marked ‘A1’ was live ammunition before it was test fired in the laboratory. (3)The pertinent characteristic marks of improvised pistol marked exhibit ‘F1’ present on the crime cartridge case marked exhibit ‘EC1’ were compared with test cartridge cases fired through improvised pistol marked exhibit ‘F1’ under a comparison microscope. After thorough examination and comparison, firing pin and breech face marks present on exhibit ‘EC1’ were similar with firing pin & breech face marks present on test cartridge cases. Hence, it is opined that exhibit empty cartridge case marked ‘EC1’ had been fired through the improvised pistol marked exhibit ‘F1’ (4)The exhibit 7.65mm cartridges marked ‘A1’ is ammunition as defined in Arms Act, 1959. (5)The exhibit 7.65mm cartridge case marked ‘EC1’ is a part of ammunition as defined in Arms Act.

150. Further PW50 V.R. Anand, Assistant Director (Ballistic), FSL, Rohini, Delhi carried out the Ballistic Examination of the improvised pistol 7.65 mm caliber marked Ex. F[1] in FSL No. 2012/F7200 and proved his report as Ex. PW50/A. The relevant portion of his statement recorded on 06.02.2017 is reproduced below- “On 04.01.2013 three sealed parcels in connection with the present case were duly received in the office of FSL, Rohini through Ct. Surender Kumar. Parcel No. 1 was sealed with seal of NPW FSL Delhi containing once improvised pistol 7.65 mm caliber already marked Ex. F[1] in case FSL No. 2012/F7200. Parcel No. 2 was sealed with the seal of MU FSL Delhi containing one bullet marked Ex.EB[1]. Parcel No. 3 was sealed with the seal of MU FSL Delhi containing one bullet marked Ex.EB[2]. On examination, bullets marked Ex.EB[1] and Ex.EB[2] corresponded to the bullets of 7.65mm cartridges. Two 7.65mm cartridges taken from laboratory stock were test fired through the improvised pistol marked Ex. F[1]. The test fired cartridge cases were marked as TC[1] and TC[2] and recovered bullets were marked as TB[1] and TB[2]. The individual characteristics of rifling marks/striation marks present on evidence bullets marked Ex.EB[1] and EB[2] on test fired bullets TB[1] and TB[2] were examined under comparison microscope and were found identical. Hence, the evidence bullets marked Ex.EB[1] and EB[2] had been discharged through the improvised pistol marked Ex. F[1] in case FSL No. 2012/F-7200. Exhibit EB[1] and EB[2] were ammunition as defined in the Arms Act, 1959. All the exhibits were sealed with the seal of VRA FSL Delhi after examination. My detailed report dated 05.04.2013 is Ex.PW50/A (three pages) which bears my signatures at point A on each page. My report is correct.”

151. From the perusal of the aforesaid testimony, it is evident that three parcels i.e. ‘Sealed parcel no. 1’ (containing one improvised pistol

7.65 mm caliber marked Ex. F[1] in case FSL NO. 2012/F7200), ‘Sealed parcel No. 2’ (containing one bullet marked Ex. EB[1]), ‘Sealed Parcel No. 3’(containing one bullet marked Ex. EB[2]) were received and on examination, it was evidently established keeping in mind the rifling marks that the bullets ‘Ex. EB[1] and Ex. EB2’ were ammunition as defined in the Arms Act 1959 and were discharged through the improvised pistol marked ‘Ex. F1’. Relevant portion of the FSL-2013/F-0121 (Ex. PW50/A) is reproduced herein below: Results of Examination/Opinion (1)The bullets marked exhibits ‘EB1’ & ‘EB2’ corresponds to the bullets of 7.65mm cartridges. (2)The two 7.65mm cartridges taken from laboratory stock were test fired through the improvised pistol 7.65mm caliber already marked exhibit ‘F1’ in case FIR No. 180/12, PS: Maurya Enclave (FSL- 2012/F-7200). Test fired cartridge cases were marked as ‘TC1’ and ‘TC2’ and test fired recovered bullets were marked as ‘TB1’ and ‘TB2’ respectively. (3)The individual characteristic of rifling marks/striation marks present on evidence bullets marked exhibits ‘EB1’ and ‘EB2’ and on test fired recovered bullets marked as ‘TB1’ and ‘TB2’ were compared and examined under comparison microscope model lieca CMC and were found identical. Hence, the evidence bullets marked exhibits ‘EB1’ and ‘EB2’ have been discharged through the improvised pistol 7.65mm caliber already marked exhibit ‘F1’ in case FIR NO. 180/12, PS: Maurya Enclave (FSL-2012/F-7200). (4)The exhibits ‘EB1’ & ‘EB2’ are ammunition as defined in the Arms Act, 1959

152. In view of the aforesaid Ballistic division reports, which are corroborating with the version of the prosecution, it is evidently established that the pistol (which was recovered at the instance of Abhay Dewan from C2/16, Sec.15, Rohini, Delhi) was in working condition and was used to kill the deceased. Criminal Conspiracy ‘under Section 120-B of the Indian Penal Code’

153. Learned counsel for the appellants argued that the prosecution failed to prove any criminal conspiracy among the appellants to hold them guilty of offence punishable under Section 120-B IPC.

154. To bring an offence within the ambit of criminal conspiracy, the following factors are necessary to be present there: i) First, involvement of more than one person and ii) An agreement/among such persons to do or causing to be done an illegal act or an act which is not illegal but is done or causing to be done by illegal means.

155. Therefore, in order to constitute a conspiracy, meeting of mind of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and every detail of the conspiracy, which is being hatched and nor it is necessary to prove their active part/role in such meeting.

156. In other words, presence and participation of each person in such meeting alone is sufficient. Its existence coupled with the object for CRL.A. 1175/2018 & other connected matters which it was hatched has to be gathered on the basis of circumstantial evidence, such as conduct of the conspirators, the chain of circumstances leading to holding of such meeting till the commission of offence by applying the principle applicable for appreciating circumstantial evidence for holding the accused guilty for commission of an offence.

157. The Apex Court in the case of Baldev Singh v. State of Punjab reported in 2009 6 SCC 564 has held as under: -

466. The most important aspect of the offence of conspiracy is that apart from being a distinct statutory offence, all the parties to the conspiracy are liable for the acts of each other and as an exception to the general law in the case of conspiracy intent i.e. mens rea alone constitutes a crime. As per Section 10 of the Evidence Act, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then, anything done by any one of them in reference to their common intention, is admissible against the others. As held in State of Maharashtra v. Damu [State of Maharashtra v. Damu, (2000) 6 SCC 269: 2000 SCC (Cri) 1088], the only condition for the application of the rule in Section 10 of the Evidence Act is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence.

467. The principles relating to the offence of criminal conspiracy and the standard of proof for establishing offence of conspiracy and the joint liability of the conspirators have been elaborately laid down in Shivnarayan Laxminarayan Joshi v. State of Maharashtra [Shivnarayan Laxminarayan Joshi v. State of Maharashtra, (1980) 2 SCC 465: 1980 SCC (Cri) 493], Mohd. Usman Mohammad Hussain Maniyar v. State of Maharashtra [Mohd. Usman Mohammad Hussain Maniyar v. State of Maharashtra, (1981) 2 SCC 443: 1981 SCC (Cri) 477], Kehar Singh v. State (Delhi Admn.) [Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609: 1988 SCC (Cri) 711], State of Maharashtra v. Som Nath Thapa [State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659: 1996 SCC (Cri) 820], State (NCT of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715], State v. Nalini [State v. Nalini, and Yakub Abdul Razak Memon v. State of Maharashtra [Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1: (2014) 7 SCC (Cri) 1].

468. Another significant aspect of the offence of criminal conspiracy is that it is very rare to find direct proof of it, because of the very fact that it is hatched in secrecy. Unlike other offences, criminal conspiracy in most of the cases is proved by circumstantial evidence only. It is extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. Conspiracy is a matter of inference, deduced from the words uttered, criminal acts of the accused done in furtherance of conspiracy. (Vide Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra [Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696: 1970 SCC (Cri) 274], Firozuddin Basheeruddin v. State of Kerala [Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596: 2001 SCC (Cri) 1341], Ram Narayan Popli v. CBI [Ram Narayan Popli v. CBI, (2003) 3 SCC 641: 2003 SCC (Cri) 869], Yogesh v. State of Maharashtra [Yogesh v. State of Maharashtra, (2008) 10 SCC 394: (2009) 1 SCC (Cri) 51], Pratapbhai Hamirbhai Solanki v. State of Gujarat [Pratapbhai Hamirbhai Solanki v. State of Gujarat, (2013) 1 SCC 613: (2013) 1 SCC (Cri) 579] and Chandra Prakash v. State of Rajasthan [Chandra Prakash v. State of Rajasthan, (2014) 8 SCC 340: (2014) 3 SCC (Cri) 457], etc.)

469. In Yogesh v. State of Maharashtra [Yogesh v. State of Maharashtra, (2008) 10 SCC 394: (2009) 1 SCC (Cri) 51], this Court, after referring to the law laid down in several pronouncements, summarised the core principles of law of conspiracy in the following words: (SCC p. 402, para 25) “25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and CRL.A. 1175/2018 & other connected matters renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.”

470. In the present case, there is ample evidence proving the acts, statements and circumstances, establishing firm ground to hold that the accused who were present in the bus were in prior concert to commit the offence of rape. The prosecution has established that the accused were associated with each other. The criminal acts done in furtherance of conspiracy, is established by the sequence of events and the conduct of the accused. Existence of conspiracy and its objects could be inferred from the chain of events. The chain of events described by the victim in her dying declarations coupled with the testimony of PW 1 clearly establish that as soon as the complainant and the victim boarded the bus, the accused switched off the lights of the bus. Few accused pinned down PW 1 and others committed rape on the victim in the backside of the bus one after the other. The accused inserted iron rods in the private parts of the prosecutrix, dragging her holding her hair and then threw her outside the bus. The victim has also maintained in her dying declaration that the accused persons were exhorting that the victim has died and she be thrown out of the bus. Ultimately, both the victim and the complainant were thrown out of the moving bus through the front door, having failed to throw them through the rear door. The chain of action and the act of finally throwing the victim and PW 1 out of the bus show that there was unity of object among the accused to commit rape and destroy the evidence thereof.

471. In this case, the existence of conspiracy is sought to be drawn by an inference from the circumstances:

(i) the accused did not allow any other passenger to board the bus after PW 1 and the prosecutrix boarded the bus;

(ii) switching off the lights; pinning PW 1 down by some while others commit rape/unnatural sex with the prosecutrix at the rear side of the bus;

(iii) exhortation by some of the accused that the victim be not left alive; and

(iv) their act of throwing the victim and PW 1 out of the running bus without clothes in the wintery night of December. Existence of conspiracy and its objects is inferred from the above circumstances and the words uttered. In my view, the courts below have rightly drawn an inference that there was prior meeting of minds among the accused and they have rightly held that the prosecution has proved the existence of conspiracy to commit gang rape and other offences.”

159. The aforesaid judgments were followed by the Apex Court in the case of Bilal Hajar@Abdul Hameed v. State Rep by Inspector of Police reported in 2018 SCC OnLine SC 1865. The relevant para’s is reproduced as under: “27. The expression "criminal conspiracy" is defined in Section 120-A, Indian Penal Code. It CRL.A. 1175/2018 & other connected matters says that when two or more persons agree or cause to be done an illegal act or an act, which is not illegal by illegal means, such an agreement is designated a "criminal conspiracy". It then provides an exception to the effect that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The explanation appended to the Section clarifies that it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

28. Section 120-B, Indian Penal Code provides a punishment for committing an offence of criminal conspiracy. It says that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or upwards shall be punished in the same manner as if he had abetted such offence provided there is no express provision made in the Code for punishment of such conspiracy.

29. Sub-section (2) of Section 120-B, Indian Penal Code, however, provides that a person who is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with an imprisonment of either for a term not exceeding six months or with fine or both.

30. Reading of Section 120-A and Section 120-B, Indian Penal Code makes it clear that an offence of "criminal conspiracy" is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigor, two factors must be present in the case on facts: first, involvement of more than one person and second, an agreement between/among such persons to do CRL.A. 1175/2018 & other connected matters or causing to be done an illegal act or an act which is not illegal but is done or causing to be done by illegal means.

31. The expression "criminal conspiracy" was aptly explained by this Court in a case reported in Major E.G. Barsay v. State of Bombay 1961: (1962) 2 SCR 195. Learned Judge Subba Rao (as His Lordship then was and later became CJI) speaking for the Bench in his distinctive style of writing said: 31....The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.

32. Therefore, in order to constitute a conspiracy, meeting of mind of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and every detail of the conspiracy, which is being hatched and nor it is necessary to prove their active part/role in such meeting.

33. In other words, their presence and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less to public at large.

34. It is for this reason, its existence coupled with the object for which it was hatched has to be gathered on the basis of circumstantial evidence, such as conduct of the conspirators, the chain of circumstances leading to holding of such meeting CRL.A. 1175/2018 & other connected matters till the commission of offence by applying the principle applicable for appreciating the circumstantial evidence for holding the Accused guilty for commission of an offence. (See also Baldev Singh v. State of Punjab.

35. Keeping in view the aforesaid principle of law which is consistently followed and reiterated by this Court in several cases, the issue involved in this case is required to be examined with a view to find out as to whether Appellant (A-6) was a member of a criminal conspiracy which was hatched on 01.09.1991 to kill Siva on 05.09.1991 or in other words whether there is any evidence to sustain Appellant's conviction Under Section 120-B, Indian Penal Code and, if so, whether the evidence adduced by the prosecution is in conformity with the parameters laid down by this Court to prove the guilt of the Appellant beyond reasonable doubt.”

160. In view of the judgments cited above, as well as on the basis of evidence borne out from the previous part of the judgment, it is established that all the appellants were in agreement with each other and were actively involved in the commission of the alleged offence. Hence, the argument raised by the appellants that the prosecution failed to prove any criminal conspiracy under Section 120-B IPC among the appellants holds no ground. Conclusion

161. In our view, the chain of circumstances as recited above coupled with the law laid down by the Apex Court unerringly leads to one CRL.A. 1175/2018 & other connected matters conclusion and that is the guilt of the Appellants. The prosecution has been able to prove the case against the Appellants beyond reasonable doubt. The testimonies of PW-16 (Deepak Kapoor), PW- 18 (Sanjeev Kapoor) and PW-19 (Vishal Verma) are corroborative and clearly point out towards the Appellants as the perpetrators of the crime. The police witnesses PW-25 (HC Manoj Raghav), PW-42 (SI Satya Dev), PW-48 (Insp. Sanjeev Verma) and PW-49 (Insp. Anil Sharma) have testified in Court on the basis of the records and demonstrated the line of investigation and have proved arrest of the Appellants as well as the recoveries made at the instance of the Appellants. Though the Appellants took up a plea that they were apprehended/arrested from Nepal Border but despite opportunity provided to them they failed to raise any defence. Further there is no cogent reason to disbelieve the testimonies of the police witnesses that the recoveries were made pursuant to the disclosure statements made by the appellants. The conviction of the Appellants in the present case is not based solely on the testimonies of police witnesses PW-25 (HC Manoj Raghav) and PW-49 (Insp. Anil Sharma) but the chain of events has also been clearly established by the prosecution with support of testimonies of other witnesses as well, which were corroborated with the testimonies of PW-25 (HC Manoj Raghav) and PW-49 (Insp. Anil Sharma).

162. The Call Detail Records of the mobile phones used by the Appellants as well as the CCTV footage obtained by the Investigating Agency during the course of investigation undoubtedly points out towards the guilt of the Appellants and strengthen the story set up by the CRL.A. 1175/2018 & other connected matters prosecution that Appellants (Abhay Dewan & Mahima Dewan) accompanied each other to Faridabad and after picking up Jatin at about 01:30 am from Faridabad, purchased bandages and Suthol liquid at 02:43 am from Apollo Pharmacy situated at Sector-9, Rohini, Delhi. Further in view of the testimonies of the prosecution witnesses (PW-19(Vishal), PW-25 (HC Manoj Raghav) and PW-49 (Insp. Anil Sharma) it is clear that the swift car bearing registration no. DL2CAN3335 used in the commission of the offence was being used by Appellant/Abhay Dewan who was accompanied by the Appellant/Runeet Gulati and the said car was in exclusive control and possession of Appellant/Abhay Dewan. Moreover, the Ballistic analysis report and scientific evidence produced by the prosecution are clear and cogent that the pistol (which was recovered at the instance of Abhay Dewan from C2/16, Sec.15, Rohini, Delhi) was in working condition and was used in commission of the crime. It was further evidently established by the prosecution that the residue of kerosene was detected on the black burnt clothes of the deceased and the blood of deceased (Exhibit ‘4’) matched with the blood detected on Exhibit ‘10’ (i.e. T-Shirt of accused, Abhay Dewan), Exhibit ‘11b’, (i.e. Pyjama of accused, Mahima Dewan), Exhibit ‘12’ (i.e. Pants of accused, Runeet Gulati) & Exhibit ‘13’ (i.e. Knickers of accused, Jatin).

163. After considering the entire evidence and re-appreciating the same in the light of arguments and the reasons given by the Trial Court, we are of the view that the chain of circumstances is complete, which rules out any possibility that there can be any other person than Appellants who had committed the murder. The circumstances from which an inference of guilt is drawn are cogently and firmly established and the circumstances have a definite tendency to unerringly point towards the appellants as the actual perpetrators of the crime, who had entered into a criminal conspiracy as per section 120-B to commit this gruesome murder; the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Appellants and no one else. In this background, we are of the view that the prosecution has succeeded in establishing its case against the Appellants because the evidence adduced by the prosecution is sufficient, cogent and credible to establish that the Appellants have committed the crime.

164. In the present case we find that the act of the Appellants reflects extreme depravity. It is a case of brutal murder involving most gruesome and barbaric act. The diabolical manner in which crime was committed leaves one worried as to the pervert mental state of the accused persons and the brazenness and coldness with which the act was committed in the night hours. The horrific act reflecting the in-human extent to which the accused could go to satisfy their greed, being completely oblivious, not only to the norms of the society, but also to the norms of humanity. The gruesome manner in which the Appellants had killed Shivam and dealt with his body, we unhesitatingly say that the abhorrent act of the Appellants has definitely shocked our judicial conscience.

165. Keeping in view the facts of the present case and the nature in which the ghastly offence was committed with highest viciousness wherein the human greed was allowed to take such a demonic form, we find no infirmity in the judgment passed by the learned Trial Court and we see no cogent reason to interfere with the same.

166. However, a perusal of the record transpires that the Trial Court vide order dated 05.02.2013 has amended the charges against the Appellants including the charge under Section 302 IPC which read as under: - “Thirdly, on the same intervening night of 17/18.07.2012 in furtherance of the above said criminal conspiracy you all i.e. accused Abhay Dewan @ Gappy, Runit Gulati, Mahima Dewan and Jatin committed the murder of Shivam Kapoor aged 19 years by using force and also by using the firearm and deadly weapon (cutter) and thus you (Abhay Dewan, Runit Gulati and Jatin) Committed an offence punishable U/s 302 r/w section 120B IPC and within my cognizance.”

167. From the perusal of the amended charge under Section 302 IPC we find that substantive charge under Section 302 of the IPC has not been framed against the Appellant/Mahima Dewan. In this background, punishment for the offence punishable under Section 302 IPC against the Appellant/Mahima Dewan without a substantive charge is unwarranted. Accordingly, the order on sentence in relation to Appellant/Mahima Dewan is modified to the extent that the Appellant/Mahima Dewan is sentenced to undergo all the CRL.A. 1175/2018 & other connected matters sentences except for the offence punishable under Section 302 of the IPC as directed vide order on sentence dated 19.09.2018.

168. Accordingly, the conviction of the Appellants under Sections 302/201/364/120B IPC read with Section 25/27 Arms Act is upheld except for conviction of Appellant/Mahima Dewan for the offence punishable under Section 302 IPC and all the appeals are dismissed.

169. Appellant/Mahima Dewan is directed to surrender within 4 weeks before the Trial Court. Bail Bonds are cancelled and sureties stand discharged.

170. Copy of the order be communicated to the Trial Court as well as to the Jail Superintendent, Tihar Jail.

171. Trial Court record be sent back along with a copy of this order. Crl.M.(B)1815/2018, Crl.M.(B) Nos.1997/2018, Crl.M.(B)536/2019 Crl.M.(B) 107/2019

1. In view of the above order passed in the appeals, the present applications are rendered infructuous.

2. All pending applications stand disposed off.

SANGITA DHINGRA SEHGAL, J. MANMOHAN, J. SEPTEMBER 20, 2019 gr/da*