Ranjeet v. State

12. Learned counsel for the State further contended that the evidence produced on record as well as the circumstances proved by the prosecution, formed a complete chain pointing unequivocally towards the guilt of the accused. Based on these submissions, counsel for the State urged that this Court may not interfere with the well reasoned judgment passed by the learned Sessions Judge. In support of her contentions she relied on the cases of Aghnoo Nagesia vs. State of Bihar (supra) (para 15,18 and 20), Rakesh Kumar Jha Vs State of Delhi reported in 2012 IX AD (Delhi) 338, Faddi Vs State of M.P. reported in AIR 1964 SC 1850.

13. We have heard the learned counsel for the parties and have also perused the material placed on record including the record of the trial court.

ADMISSIBILTY OF RECOVERIES EFFECTED PURSUANT TO THE DISCLOSURE/CONFESSIONAL STATEMENT OF THE ACCUSED

14. Learned counsel for the appellant vehemently argued that the recoveries pursuant to the disclosure statement of the accused are not admissible under Section 25 of the Evidence Act. In this context, from a perusal of the record it transpires that the state machinery was set in motion pursuant to DD No. 14-A (Ex. PW-4/A) and DD No. 15-A (Ex.PW-4/C). PW-15 (Inspector, Sunil Kumar) deposed that the recoveries were effected in his presence at the instance of the accused person. PW-15 (Inspector, Sunil Kumar) during his examination-in-chief deposed that ‘Accused Ranjeet opened the door/lock of the aforesaid house from the keys which was in his possession. Blood was found scattered in the house’. After the interrogation the accused Ranjeet was arrested vide (Ex.PW-1/A) and PW-15 (Inspector, Sunil Kumar) alongwith other police party was led to Nangloi and Kirari Phatak, Camp No. 2 Jungle inside the bushes by the accused. PW-15 (Inspector, Sunil Kumar) further deposed that ‘Public witness Sikander was present with us at the that time. Accused Ranjeet Kumar thereafter got recovered a bag of red and black colour from the aforesaid place and the same was containing a pant, a vest and Darati and knife used in the offence.’ PW-14 (SI Manoj Kumar) corroborated the testimony of PW-15 (Inspector, Sunil Kumar) in relation to recovery of body of the deceased and bag of red and black colour wherein the weapon of offence was recovered. PW-14 (SI Manoj Kumar) deposed that ‘He led the police party alongwith Sikandar and Kiran Bharti to the above stated spot and recovered a bag of red and black colour. Same was containing a pant, a vest and darati and knife used in the houses.’ PW-1 (Sikandar) and PW-2 (Smt. Kiran Bharti) further corroborated the testimony of PW-15 (Inspector, Sunil Kumar) and PW-14 (SI Manoj Kumar). Relevant portion of the confessional statement (Ex. PW-4/A) is reproduced as under: “Samay 12.30 Baje Din Majkoora Thana No.2 Ranjeet s/o Sh. Surat Mehto R/o A-102, Ganga Ram Colony, Tikri Khurd, Delhi, Ne Bahazir Thana Akar Batlaya Ki Usne Apne Ghar Par Apne Ek Jaankaar Ram Awadh r/o Gautam Budh Colony Haiderpur, Delhi Ka murder Kar Diya Hai Aur Uski Dead Body Uske Ghar Par Rakhi Hai Jo Hasb Amad Ittila Darj Roznamcha Darj Ki Gai Aur Nakal Rapat Alak Karke Baraye Munasib Karwahi SI Manoj Sahab Ko Dee Gai Jo Man Ct. Wazir No.1126/OD Khana Mauka Ke Hue Jo Uprokt DD Number Ki Babat Janab SHO/Alipur Sahab Ko Bhi Batlaya Gaya.”

15. Thus on confessional statement (Ex. PW-4/A), pointing out memo (Ex. PW-1/E), recovery of the dead body as well as the weapon of the crime was effected. However, according to Section 25 of the Indian Evidence Act 1860, no credence can be placed upon the confession made by the accused which reads as under:

25. Confession to police officer not to be proved No confession made to a police officer shall be proved as against a person accused of any offence. However, section 27 of the Indian Evidence Act is in the nature of a proviso or an exception which partially lifts the prohibition imposed by Section 25 and reads as under: Section 27 of the Indian Evidence Act:

27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

16. In the light of Section 27 of the Indian Evidence Act, 1872 whatever information is given by the accused in consequence of which a fact is discovered only that would be admissible in the evidence, regardless of the fact that such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by the subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from an accused, such a discovery is true and admissible. The information might be confessional or noninculpatory in nature, but if it results in discovery of a fact it becomes reliable information.

17. Further, the Division Bench of this court in Rakesh Kumar Jha vs. State of NCT of Delhi (2013) 1 DLT (Cri) 79 has extensively dealt with the admissibility of the confession made by the accused to the police. Relevant portion is reproduced as hereunder:

offence. Section 27partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of Sections 24, 25and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the Court to take into consideration against a co- accused a confession of another accused affecting not only him but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession. xxxxx

8. Accordingly, the statement recorded in the First Information Report was admissible, in respect of the identity of the accused as the maker of the same i.e. his name, address and other details and the fact that he had come to the police station to make the report, which was recorded and read over to him. The other portions of the statement recorded in the First Information Report were not admissible, save and except the portions which come within the purview of Section 27 of the Evidence Act. Therefore, the other portions had to be excluded. xxxxxx xxxxxxx xxxxxxx

13. In Bheru Singh v. State of Rajasthan (1994) 2 SCC 467, there are some observations which purport that the motive recorded in the self-implicating First Information Report are admissible and not hit by Section 25 of the Evidence Act, as they do not amount to confession of committing any crime. However, as clarified by a Division Bench of this Court in Mukesh v. State Crl. Appeal NO. 615/2008 decided on 4.5.2010, in Aghnoo Nagesia case (supra) three Judges of the Supreme Court have firmly held that confession not only includes admission of the offence but also other admissions of incriminating facts relating to the offence. Motive, therefore, has to be excluded.

14. Read in this manner, we have to completely ignore and discard the extra judicial confession allegedly made to PW-20 on telephone, on 14th May, 2006 at 1.15 -1.20 P.M., i.e. after the appellant had gone to Police Station, Lajpat Nagar and DD entry No. 11A (Ex. PW1/A) was recorded at 1.00 P.M. The alleged extra judicial confession to PW-20 is hit by Section 26 of the Evidence Act. DD entry No. 11-A (Ex. PW1/A) is admissible to the limited extent that it discloses identity of the appellant, address and details of the maker of the First Information Report. This portion is admissible under Section 8 of the Evidence Act. Other portions of DD entry 11A have to be excluded, except the portion(s) which comes under the purview of Section 27 of the Evidence Act. This portion, noticed below, will consist of appellant’s statement that dead body of Suman Rai was lying in flat No. E-20, First Floor, Gautam Nagar, New Delhi, and the knife used and blood stained clothes of the accused were lying in the same flat.

15. Head Constable Raghubir Prasad(PW-1) was the duty officer at the Police Station, Lajpat Nagar and had first interaction with the accused, at Police Station, Lajpat Nagar, where he had recorded his confessional statement, vide DD entry No. 11A(Ex. PW1/A). The DD entry reads as: "I reside at 50 E, First Floor, Gautam Nagar, New Delhi in the Flat of Smt. Suman Roy and loved her. I came to know about her illicit relations with some other persons, on which some hot arguments took place between us. As a result whereof I became furious and today at about 8:00 o’clock in the morning I finished her by giving knife blows. I had kept the blood stained knife and clothes at the locale itself. I have locked the flat and the key of the flat is in my possession. I have come here at Lajpat Nagar Police Station to inform you, because I knew about the Lajpat Nagar Police Station only. (The underlined portion of the DD entry is admissible)”

18. In view of the above, Section 27 of the Indian Evidence Act, 1872 is applicable, if confessional statement leads to discovery of some new facts. It is further not in dispute that a fact discovered on an information supplied by the accused in his disclosure statement is a relevant fact and that is admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused (Ref-Kamal Kishore Vs. State (Delhi Administration), (1997) 2 Crimes 169 (Del). In the present case, the confessional statement made by the accused (Ex. PW-4/A) is inadmissible as per Section 25 of the Indian Evidence Act, 1872, however, there is nothing on record to disbelieve the testimony of PW-15 (Inspector, Sunil Kumar), PW-14 (SI Manoj Kumar), PW-1 (Sikandar) and PW-2 (Smt. Kiran Bharti) in whose presence the recovery of dead body of the deceased and weapon of offence were recovered on the basis of disclosure (Ex. PW-1/C) made by the accused which is admissible under Section 27 of the Indian Evidence Act. The testimonies of the prosecution witnesses in relation to recoveries are consistent and trustworthy and corroborative, as such the ground raised by learned counsel for the appellant in relation to inadmissibility of the recoveries at the instance of the accused person holds no ground.

MEDICAL AND SCIENTIFIC EVIDENCE

19. Having discussed the admissibility of recoveries made under Section 27 of the Indian Evidence Act, 1872, we deem it appropriate to examine the medical and scientific evidence adduced by the prosecution. Dr.V.K. Jha, Medical Officer, BRJM Hospital, Jahangirpuri, Delhi conducted the post-mortem on the body of the deceased (Ex. PW-11/A) and during his examination-in-chief he deposed as under:- “Opinion Cause of death as hemorrhagic shock as a result of cut throat injury inflicted by other party. All injuries were antemortem in nature and Injury No. 6 was sufficient to cause death in ordinary course of nature. Injury No. 1, 4 and 5 have been inflicted are defence wound and time since death was approximately 26 hours.”

20. Dr. K.L. Sharma, SR. CMO, Subzi Mandi Mortuary, Delhi during his examination-in-chief also revealed the External and Internal Injuries suffered by the deceased. The examining Doctor further conducted the internal examination of the body of the deceased and revealed as under:- “External Injuries

1. Incised wound on (L) wrist 2cm x 1cm x muscle deep

2. Incised wound on lateral angle of (L) eye 1.5cm x 1cm

3. Incised wound on (L) parietal region 12cm x 1cm x subscalp

4. Incised wound on middle plalanges of middle Right hand of size 2cm x 2cm x muscle deep.

5. Incised would on web space between middle finger and ring finger right hand of size 2cmX1cmXmuscle deep.

6. Multiple incised would about ten in numbers on left side of neck. The biggest one is 10cmX2cmXvessel deep. On dissection, it has cut skin, muscles and vessels. Blood and blood clot present. Internal examination On internal examination brain matter was soften, stomach was empty.”

21. Blood samples lifted from the spot and clothes of the deceased as well as accused, including pant, shirt, baniyan and underwear were sealed by the Investigation Officer, PW-15 (Inspector, Sunil Kumar), which fact was confirmed from the testimonies of PW-14 (SI Manoj Kumar), PW-1 (Sikandar) and PW-2 (Smt. Kiran Bharti). PW-15 (Inspector, Sunil Kumar) also proved the FSL report as (EX.-PW-15/C) and (Ex.PW-15/D). As per scientific analysis report (EX.-PW-15/C) ‘Blood was detected on exhibits (1a, 1b, 1c, 1d), (3a, 3b, 3c) and 5’. Relevant portion of (Ex.-PW-15/C) and (Ex.PW-15/D) reads as under:- (Ex.-PW-15/C) “DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel ‘1’:One sealed cloth parcel described as envelope at S.No.1 sealed with the seal of FMT BJRM HOSPITAL DELHI containing exhibits ‘1a’, ‘1b’, ‘1c’ & ‘1d’, described as ‘envelope containing gauze’ in the forwarding letter. Exhibit ‘1a’: One pants having brown stains. Exhibit ‘1b’: One shirt having brown stains. Exhibit ‘1c’: One baniyan having brown stains. Exhibit ‘1d’: One underwear having brown stains. Parcel ‘3’: One sealed cloth parcel sealed with the seal of “SKS” containing exhibits ‘3a’, ‘3b’ & ‘3c’. Exhibit ‘3a’: One pants (Jeans) having brown stains. Exhibit ‘3b’: One baniyan having brown stains. Exhibit ‘3c’: One bag having brown stains. Parcel ‘4’: One sealed cloth parcel sealed with the seal of “SKS” containing exhibits ‘4a’ & ‘4b’. Exhibit ‘4a’: One sickle made up of wooden handle and metallic blade having rusty stains described as ‘Fatal sickle’. Exhibit ‘4b’: One knife made up of wooden handle and metallic blade described as ‘Domestic knife’. Parcel ‘5’: One sealed cloth parcel sealed with the seal of “SKS” containing exhibit ‘5’ kept in a plastic container. Exhibit ‘5’: Cemented material having darker stains described as ‘Dry blood’ with floor. Parcel ‘6’: One sealed cloth parcel sealed with the seal of “SKS” containing exhibit ‘6’ kept in a plastic container. Exhibit ‘6’: Cemented material described as Earth Control.

RESULT OF ANALYSIS

1. Blood was detected on exhibits (1a, 1b, 1c, 1d), (3a, 3b, 3c) and 5.

2. Blood could not be detected on exhibits 4a, 4b and 6

3. Report of serological analysis in original is attached herewith.” (Ex.PW-15/D) “BIOLOGY DIVISION The result of the serological analysis reads as: Exhibits Species of Origin ABO Grouping/ Remarks ‘1a’ Pants Human ‘B’ group ‘1b’ Shirt Human No reaction ‘1c’ Baniyan Human ‘B’ group ‘1d’ Underwear Human ‘B’ group ‘3a’ Pants (Jeans) Human ‘B’ group ‘3b’ Baniyan Human ‘B’ group ‘3c’ Bag Human No reaction ‘5’ Blood stained cemented material Human ‘B’ group ‘6’ Cemented material (control) No reaction --- ”

22. Perusal of the post-mortem of the deceased (Ex. PW-11/A) shows that the injuries caused on the person of the deceased were inflicted with sharp edged weapon. The post-mortem report further suggests that the death has been caused due to injury no.6 as deposed by PW-11 (Dr. V. K. Jha) in his statement (Note:-Injury no.7 mentioned in the postmortem report Ex. PW-11/A)) ‘Multiple incised wound about ten in numbers on left side of neck. The biggest one is 10cmX2cmXvessel deep. On dissection, it has cut skin, muscles and vessels. Blood and blood clot present’. The examining Doctor, PW-11 (Dr. V. K. Jha), clearly opined that the ‘Cause of death as haemorrhagic shock as a result of cut throat injury inflicted by other party’. The post-mortem report (Ex. PW-11/A) supports the case of the prosecution and is in consonance with the disclosure statement (Ex. PW-1/C) made by the accused person which was duly corroborated by the testimony of PW-15 (Inspector, Sunil Kumar), PW-14 ( SI Manoj Kumar), PW-1 (Sikandar) and PW-2 (Smt. Kiran Bharti).

23. Moreover, the FSL report (Ex.-PW-15/C) and (Ex.PW-15/D) clearly depicts that the blood group ‘B’ found on the clothes of the accused matched with the blood group of the deceased. The post-mortem (Ex. PW-11/A) report directly points towards the fact that the injuries inflicted on the deceased were caused by the same knife that was recovered at the instance of the accused and points out towards the guilt of the accused person in the commission of the crime for the offence punishable under Section 302 of the Indian Penal Code.

24. Upon perusal of the post-mortem report (Ex. PW-11/A) and scientific report (Ex.-PW-15/C) and (Ex.PW-15/D) it can be safely inferred that there is no inconsistency between disclosure statement (Ex. PW-1/C) made by the accused person and medical evidence/scientific evidence (Ex.-PW-15/C) and (Ex.PW-15/D) which point towards the guilt of the accused.

LAST SEEN WITNESS

25. Learned counsel for the appellant contended that the Trial court has rightly given a finding that the last seen witness i.e. PW-1 (Sikandar) was a planted witness which goes on to prove that the other incriminating evidence such as disclosure statement of the accused is fabricated by the Investigating Officer in order to falsely implicate the appellant in the present case. In this context, it is relevant to observe the findings given by the trial court, which reads as under: “19. Taking the testimonies of PW[1] and PW[2] as a whole after the same has been tested on the anvil of cross examination, the probative force of the testimonies of PW[1] and PW[2] with regard to the last seen evidence is heavily dented, as it is hard to imagine that PW[1] was on Friday i.e. on 09.09.2012 at 11:15 am, whereas he used to leave for work by 9:00 am and used to return by 7:00 – 7:30 pm. He also admitted that prior to the incident, he had never heard from any neighbourer that the accused used to come their jhuggi to meet his mami or not. He also admitted that his mama had never went to see house or a plot prior to the incident. Even PW[2] stated that she did not take it seriously when deceased talked about the plot. However, she was told by PW[1] that he had gone to purchase the plot. From the testimony of PW[1], it is apparent that no other neighbourer had seen the accused hovering around the house of the deceased on the date of the incident or prior thereto. Further, the presence of PW[1] at around 11:15 am on 09.09.2012 appears to be doubtful, as no reason has been given by him why he had not gone to work on that day and remained at his house. If that was so, then some other person must have also seen deceased going with accused on 09.09.2012. The PW[1] also made material improvements in his testimony for instance that he gave Rs. 10,000/in cash to deceased for purchasing the plot, which was confronted with his previous statement made to the police. If that was so, then the PW[1] would have definitely asked accused and the deceased the place where they were going to see the plot and the locality thereof. In these circumstances, it appears that PW[1] was not the last seen witness and was introduced by the prosecution to strengthen its case. Therefore, this circumstance (c) is not proved and it is held against the prosecution and in favour of the accused.”

26. From the perusal of the impugned judgment, we do not find any infirmity in the reasoning given by the learned trial court that PW-1 (Sikandar) was not the last seen witness and was introduced by the prosecution. PW-1 (Sikandar) failed to give any cogent explanation as to why he had not gone to work on the date of incident. Moreover, the witness further failed to give any explanation in relation to improvements made by him in his examination-in-chief. However, as discussed above, in the preceding paragraph, where the admissibility of recoveries pursuant to disclosure statements of the accused is dealt, we do not find any force in the argument raised by learned counsel for the appellant that since PW-1 (Sikandar) the last seen witness has been introduced by the Investigating Officer, the recoveries effected pursuant to the disclosure are also planted by the prosecution.

MOTIVE

27. Learned counsel for the appellant contended that the trial court erred in observing that the accused and PW-2 (Smt. Kiran Bharti) were having extra marital relations which led the appellant to commit the alleged offence. In this context, it is relevant to peruse the testimony of PW-2 (Smt. Kiran Bharti) in order to ascertain whether there was any relation between the accused and PW-2 (Smt. Kiran Bharti), to commit the alleged offence. PW-2 (Smt. Kiran Bharti) deposed as under:- “I have been working in Max Hospital on the post of General Duty Assistant (GDA) in the year 2011 and worked there for about one year and left the job on 10.9.11 when the incident had taken place. Accused Ranjit Singh was also working in Max hospital as GDA. We both have joined the hospital at Shalimar branch when it was opened. Accused was harassing me and teasing me for the last six months when I left the hospital. Accused talk to me absurdly like that he loves me and stated that he cannot live without me. I have understood him many times that my age is 28 yrs. And I have two issues and I am older than you but he does not understand and did not give any heed to my words. When accused could not mend his ways and when he crossed his limits of indecent behaviour, I narrated all about bad behaviour of accused to my nephew Sikander and requested him to understand accused Ranjit. I also requested not to inform to my husband Ram Avadh otherwise unnecessary a quarrel may rise. But because of scarcity of time, my nephew could not talk to accused Ranjit. I also changed my shift due to harassment given to me by Ranjit from morning to night shift. Incidentally on 9.9.12, I went for my duty at about 8 am to the hospital and returned to my house at about 4 pm. I have also to do night shift on that day. I asked to Sikandar after his arrival to the house at about 4.30 pm about my husband. He told me that my husband had gone with Ranjit for looking a house as my husband intended to purchase a house. My husband also talked to me in this respect a few days before but I had not taken it seriously as we do not have enough money. In the evening of 9.9.12, I had gone to hospital for attending night shift at about 8 pm and I was leaving my house I made call to accused and asked him about my husband but accused talks rudely (oot-patang bola) and stated that he had revealed the relation between me and him to my husband and he totally blanked his mind on this issue and sent my husband to our house. I have made a call from my mobile no.8130504202 but I do not remember the mobile number of accused. I was remained tensed in the hospital and early in the morning, I came back to my house from hospital in between 7.30 to 8 am. Till that time, my husband had not returned to the house. I made calls to almost all my relatives but the whereabouts of my husband were not found anywhere. I along with my nephew after confirming the address of accused, we went to Ganga Ram Colony, Tikri Khurd. We saw that a large number of police gathered there and in between dead body of my husband lying in pool of blood. I felt astonished and I suspected my husband was murdered by Ranjeet because of his inclination of one sided love with me.”

28. During the cross-examination, PW-2 (Smt. Kiran Bharti) deposed as under: “Accused was not known to me prior to the joining in the Max hospital. I cannot tell whether accused joined the said hospital before my joining or after my joining. I do not remember the date or time when accused stated that he loves me. Vol. he first time stated to me these words when I was on the way to my home and he was following me. I do not remember the date and month but it was in the evening after morning shift when I was going to my home he stated to me that he cannot live without me. I cannot tell the exact date when I told about the behaviour of accused to Sikander but it was about 10-15 days before the death of my husband. On 1.9.12 I had told to change my shift to the incharge but same was not completely changed. It is wrong to suggest that I had not requested to the incharge for change of my shift duty from day to night. It is wrong to suggest that I had not told to my nephew about the bad behaviour of accused towards me. It is wrong to suggest that accused had not used absurd words to me. It is wrong to suggest that I had not joined the Max hospital at Shalimar Bagh. It is wrong to suggest that accused Ranjit was not working in Max hospital. It is wrong to suggest that accused was not harassing me or teasing me for the last six months when I left the hospital. My jhuggi is situated in the middle of the lane where I was residing. There were 15 jhuggies before and 15 jhuggies after my jhuggi. Same is the situation of my front lane. It is correct that they all known to us and I also know them. 1-2 persons of my locality/neighbourhood had seen the accused Ranjit and my husband gone together on the day of incident but they do not know accused Ranjit. I cannot tell the names of those persons who had seen my husband and Ranjit together. I do not know whether police had inquired from the said persons or not. It is wrong to suggest that 1-2 persons had seen the accused with my husband on the day of incident. It is wrong to suggest that Sikandar had not told me that my husband had gone with the accused for looking a house. It is wrong to suggest that my husband had not talked to me about this fact few days before. It is further wrong to suggest that in the evening of 9.9.11 I had not gone to attend the night shift to the hospital or that I made not call to accused about my husband. It is further wrong to suggest that I had not made call from my mobile to accused. It is correct that mobile number 8130504202 is not in my name. It is wrong to suggest that I had not made call to my all relatives about the whereabouts of my husband. I reached at Ganga Ram Colony at about 2.30/3 pm and remained there till dark but I cannot tell the exact time. Many public persons were there but they are at some distance from the spot. The Ganga Ram Colony is a residential colony and peoples were residing there. I do not know whether police has prepared any documents at the spot. It is correct that I do not remember the mobile number of accused Ranjit. It is wrong to suggest that I had not suspected that accused had committed the murder of my husband. It is further wrong to suggest that some other person is involved in the murder of my husband. My statement was recorded at the spot in the evening by the police but I cannot tell the exact time. I do not remember how I came back to my house as I was in semi conscious condition after seeing the dead body of my husband and Sikander might be accompanied me. It is wrong to suggest that Sikander had committed the murder of my husband. It is wrong to suggest that deceased was murdered somewhere else and the dead body was planted thereafter at the house of accused to falsely implicate him in this case. It is wrong to suggest that I am deposing falsely.”

29. PW-17 (Chander Shekhar) Nodal Officer, Bharti Airtel Limited, 224, Okhla Phase-II, New Delhi proved the call detail records of mobile phone No. 8130504202 which was used by PW-2 (Smt. Kiran Bharti). The witness in his examination-in-chief deposed as under:- “I have brought the summoned record pertaining to mobile No. 8130504202, which was also supplied through e-mail on request received from ACP office, sub-Division, Ali Pur, Delhi on 07.12.2012. The said request is Ex.PW17/A. The said call record is already exhibited as Ex.PW14/K. I have brought the record pertaining to the aforesaid mobile number. As per customer application form, the mobile No. 8130504202 was in the name of Sh.Shikander S/o Sh.Jagar Dev, R/o 58/236, Gali Sewak Clinic, Haiderpur Village, Delhi. The customer supplied Election Identity Card duly attested and signed by the customer. The customer application form is Ex.PW17/B which is duly attested by me at point A, B and C (original seen and returned). The Election Identity Card is Ex.PW17/C, which is duly attested by me at point A. I also took out the call detail record of the aforesaid mobile number dated 01.09.2012 to 10.09.2012 and brought the same, which is Ex.PW17/D (consisting of 6 pages) all bears my signatures at point A. I have brought the Certificate under Section 65B of Indian Evidence Act, bearing my signatures at point A. The same is Ex.PW17/E. All the call details Ex.PW17/D were generated from the computer which is lawfully under my control and possession, derived from the computer and its password is protected under my control. I generated the details of the calls already Ex. PW17/D. The information/CDR Ex.PW17/D is computer generated and computer is in function in ordinary course of business and there is no chance of tampering and manipulation in it. I have also brought the cell ID chart, same is Ex.PW17/F, which bears my signature at point A.”

30. From a perusal of the above testimonies, it is evident that the accused was known to PW-2 (Smt. Kiran Bharti) wife of the deceased prior to the date of the incident. The deposition of PW-2 (Smt. Kiran Bharti) before the Court proves that accused and PW-2 were working in the same Hospital and the accused was constantly making efforts to build relationship with PW-2 (Smt. Kiran Bharti). PW-2 (Smt. Kiran Bharti) during her examination-in-chief further revealed that on 09.09.2012 i.e. the date of incident her husband (the deceased) was in the company of the accused and deposed that ‘In the evening of 9.9.12, I had gone to hospital for attending night shift at about 8 pm and I was leaving my house I made call to accused and asked him about my husband but accused talks rudely (oot-patang bola) and stated that he had revealed the relation between me and him to my husband and he totally blanked his mind on this issue and sent my husband to our house. I have made a call from my mobile no.8130504202 but I do not remember the mobile number of accused.’ The examination-in-chief of the wife of the deceased further revealed that she suspected that ‘my husband was murdered by Ranjeet because of his inclination of one sided love with me.’.

31. The Airtel Prepaid Enrolment Form, the Call data records and the Cell ID chart of mobile phone No. 8130504202, used by the PW-2 (Smt. Kiran Bharti), (Ex.PW-17/B), (Ex. PW-17/D) and (Ex. PW.17/F) proved by PW-17 (Chander Shekhar) Nodal Officer, Bharti Airtel Limited, 224, Okhla Phase-II, New Delhi shows that calls were exchanged between the accused (phone no. 875032055[6]) and wife of the deceased PW-2 (Smt. Kiran Bharti) (phone no. 8130504202). There is no denial of the fact that the phone no. 875032055[6] was used by the accused as the testimony of PW-2 (Smt. Kiran Bharti) reveals that the phone no. 875032055[6] was used by the accused, further (Ex. PW-1/B) personal search memo of the accused at the time of arrest shows that mobile phone no. 875032055[6], was found in the possession of the accused at the time of his arrest. The call data record (Ex. PW.17/D) reveals that the accused and PW-2 (Smt. Kiran Bharti) were in touch with each other prior to the date of the incident. The call data record corroborates the version of the PW-2 (Smt. Kiran Bharti) wherein she claimed that she called the accused in the evening of the date of the alleged incident i.e. 09.09.2012 to know the whereabouts of her husband whereby the accused ‘stated that he had revealed the relation between me and him to my husband’. The testimony of the PW-2 (Smt. Kiran Bharti) further finds support from the Cell ID Chart (Ex. PW.17/F) which shows the location of the accused and PW-2 (Smt. Kiran Bharti) at their respective places.

32. The testimonies of PW-2 (Smt. Kiran Bharti) revealed that she was not acceding to the one side inclination of love shown by the accused towards her which led to the commission of the alleged offence. Hence, the motive for committing the crime by the accused person stood established.

DEFECTIVE INVESTIGATION

33. The counsel for the appellant further argued that the investigation conducted by the police is defective and full of lacunas, as the investigating officer failed to get the CDR’s of the phone of the appellant; that the prosecution failed to join any independent witness at the time of alleged recoveries at the instance of the accused person PW-1 (Sikandar) who had joined as a witness during the recovery is not a reliable witness and his testimony is dented; the investigation officer failed to seize the lock and key of the house where the alleged incident is said to have taken place. As far as joining of independent witness is concerned, it is relevant to refer to the dicta of the Apex Court in Gian Chand & Ors vs State Of Haryana cited in AIR 2013 SC 3395 wherein it has been held that mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution, if there seems to be no reason on record to falsely implicate the appellants. In the present case, as discussed above, the recoveries effected by the prosecution at the instance of the accused person is held to be credible and the testimonies of prosecution witnesses are trustworthy and consistent and as such the non-joining of independent witness does not result in the acquittal of the accused in the present case.

34. In relation to non- seizure of lock and key of the house where the alleged incident is said to have taken place and non-production of Call data records of the mobile phone of the accused is concerned, the Apex Court in the case of Gajoo v. State of Uttarakhand reported in 2012 (9) SCC 532 in relation to scope of benefit accrued to the accused in case of defective investigation is concerned, it was held as under:-