Mr. Tanveer Ahmed Mir, Sr. Adv. with Mr. Kartik Venu, Mr. Keshav Singh & v. STATE NCT OF DELHI

Judgment

1. The present appeal has been preferred in terms of Section 374 (2) of the Code of Criminal Procedure, 1973 [“Cr.P.C.”], assailing the judgment dated

12.07.2018 passed by the Court of learned Additional Sessions Judge-02, South Saket Court, New Delhi [“Trial Court”] whereby the appellant (hereinafter referred as ‘A-1’) has been convicted under section 302 read with Section 34 of the Indian Penal Code, 1860 [“IPC”], followed by impugned order on sentence dated 22.02.2024 whereby A-1 has been sentenced to Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 1 of 30 undergo rigorous imprisonment for life and to pay a sum of Rs.25,000/- as fine, in default of which he shall further undergo one year simple imprisonment. Further, under Section 364/34 IPC A-1 is sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.25,000/- in default of which, he shall further undergo 06 months simple imprisonment, under section 365/34 IPC sentenced to undergo rigorous imprisonment for 05 years and to pay fine of Rs.10,000/-, in default of which, he shall further undergo 06 months simple imprisonment and under section 201/34 IPC sentenced to undergo rigorous imprisonment for 03 years and to pay fine of Rs.7,000/-, in default of which, he shall further undergo 02 months simple imprisonment. 2. It is pertinent to mention here that the co-accused Vikram @ Manoj (hereinafter referred as ‘A-2’) was also convicted vide the same impugned judgment dated 12.07.2018 for the same set of offences and sentenced in the same manner as A-1. A-2 earlier filed a criminal appeal bearing CRL.A. 968/2018, which came to be dismissed by a co-ordinate bench of this court vide judgment dated 23.12.2022 and thereby upholding the impugned conviction and order on sentence passed by the learned Trial Court. FACTUAL BACKGROUND

3. In a nutshell, the prosecution case brought out during the trial is that on

26.05.2011 at around 10:30 p.m., a missing report vide DD No.62-B (Ex. PW-2/DB) was registered at PS1 Vasant Kunj (North) on the complaint of PW-2/Baljit Singh, who reported that his father Raghuvir Singh (deceased) aged around 62 years had left home at 8:00 am as per daily routine and had gone to their plot bearing No.150A/9, Kishangarh, Delhi but had not returned 1 Police Station Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 2 of 30 home. He further stated that his mother was also there with his father but around 10:00 am his father was conversing with a man who had arrived in a long/big vehicle of yellow colour and was taken by him in the car which was being driven by another person. 4. It is the prosecution case that since the father of PW-2 did not come back, PW-2 visited the police station on the next day 27.05.2011 at about

12.00 p.m. and informed that he had come to know that A-1, who was their neighbour, was the one who had taken away his father in his car which was

being driven by somebody else, which led to registration of the present FIR2 No.127/2011 (Ex.PW-14/A) under Section 365/34 IPC at 12.40 p.m. on

27.05.2011 at PS Vasant Kunj (North). During the ensuing investigation, statement of PW-1/Omwati and PW-2/Baljit Singh were recorded who informed that A-1 had posed a threat to them about 10-20 days before regarding their plot 150-A/9, Kishan Garh as well as demanded money. At their instance the site plan of the place from where the deceased went missing was prepared (Ex. PW-41/B). The IO3/PW-41 obtained the CDR4 of mobile number 9911730966 of A-1 provided to him by PW-1 and PW-2 and found that a call was exchanged between the said number and the complainant’s mobile number viz., 9911222561 and the then current location of the A-1’s phone number was shown to be at Vadodara, Gujarat. However, when the police team led by IO/PW-41 reached Vadodara on 28.05.2011, their search for A-1 went in vain as his flats were found locked and he could not be located. 5. It is brought on record that in the meanwhile the body of the deceased 2 First Information Report 3 Investigating Officer 4Call Detail Record Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 3 of 30 was already located by the Gurgaon Police, i.e., PS Sushant Lok on

26.05.2011. They were not aware of the ‘missing status’ of the deceased, and thus, the post mortem was conducted on 29.05.2011 and the body of the deceased was cremated as unclaimed. The prosecution case is that it was on

01.06.2011 that the IO/PW-41 SI Ravi Babu came to know about the recovery of a dead body of an unknown man within the jurisdiction of PS Sushant Lok, Gurgaon qua which an FIR No.114/2011 (Ex.PW-24/B-7) had been registered, and eventually the body of the victim came to be identified by PW-2 as that of his missing father on 01.06.2011, the photographs of which are at Ex. PW-2/B1 to B20. 6. The prosecution story is that A-1 surrendered in the Rohtak Court on

04.06.2011 pursuant to which his production warrants were sought by PS Vasant Kunj (South) in case FIR No. 127/11 u/s 387 IPC. Through the court, A-1 was produced before the Saket Courts on 16.06.2011 and he was remanded to police custody on the same day. The information regarding his involvement in the murder of the deceased came to be disclosed by A-1 vide undated disclosure statement (Ex.PW-34/A) recorded on 18.06.2011 in the presence of Ct. Tilak Raj (PW-31) and Ct. Bhoop Singh (PW-36). Thereafter, on 20.06.2011 PW-41/IO along with Ct. Jai Bhagwan and Ct. Rajesh reached Saket Court as A1 was being produced before the concerned court. PW-41/IO then moved an application for permission to interrogate and arrest A-1 in the present case which was allowed and the custody of A1 was handed over to him. 7. In the meanwhile, PW-41/IO arrested A-2 on 19.06.2011 vide arrest memo Ex. PW-5/A and personal search memo PW-5/B and on recording of his disclosure statement PW-5/J, at his instance a pistol (Ex. P-7) and two live Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 4 of 30 cartridges (Ex. PW-5/D) were separately recovered, besides cash amount of Rs. 1,06,000/- which along with four mobile phones and metal piece were seized vide parcel Ex. PW-5/F. It is the prosecution’s case that thereafter, a Silver coloured Hyundai Accent car bearing registration number HR-02-P-4110 was also recovered on the same day. Upon inspection of the said car, blood stains were found on its rear seat as well as boot/dicky. The car (Ex. PW-5/G) was brought to the police station and while Crime Team led by PW-35 inspected the car on 21.06.2011 taking its photographs Ex. PW-19/B-1 to B-20, its forensic analysis was conducted on 27.06.2011 by PW- 3/Ms. Seema Nain. 8. Upon the completion of the investigation, the chargesheet dated

14.02.2012 was then filed by the police. 9. On 18.02.2012 charges were framed against A-1 and A-2 under Sections 365, 364, 302, 201 and 34 of the IPC by the learned Trial Court to which they pleaded not guilty and claimed trial. PROSECUTION WITNESSES EXAMINED 10. The prosecution examined 45 witnesses in support of the case which are as follows:

10.1 The star witnesses were: PW-1/Smt. Omwati who was the wife of the deceased and PW-2/Baljit Singh, who was the son of the deceased. Further, PW-4/Rati Ram, he was working as a guard in DLF, phase-V, Gurgaon and found the dead body of the deceased and informed the police. Although PW-8/Suresh Kumar Rathore was presented as a prosecution witness, he did not support the prosecution case in toto.

10.2 Medical/Expert Witnesses was PW-24/Dr. Deepak Mathur who conducted post mortem on the body of the deceased; and PW-3/Seema Nain Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 5 of 30 examined Hyundai Accent Car (CRDI) No.HR-02P-4110. PW-42/Loveleen Kumar Katyal examined the viscera of the deceased and detected no common poison; and PW-43/Rajeev Kawatra examined the stone pieces and book containing blood.

10.3 Certain witnesses in relation to the CDR were examined which are: PW-6/MN Vijayan, PW-7/Pradeep Kumar, PW-9/Pawan Singh.

10.4 Formal/Police Witnesses: PW-41/SI Ravi Babu was the investigating officer of the case. The rest of the witnesses were police witnesses. We shall delve into the details of the testimonies of these witnesses later on in the judgement. STATEMENT OF A-1 u/s 313 Cr.P.C 11. On the closing of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. wherein they pleaded false implication at the behest of PW-1 & PW-2 due to history of family enmity. A-1 was not only put the questions of incriminating evidence brought on record by the prosecution as against him but also as against A-2. A-1 denied that anyone by the name of A-2 was involved. Although A-1 initially stated that he wanted to lead evidence, however, on 14.10.2017 it is recorded that he chose not to lead any evidence. IMPUGNED JUDGMENT 12. After the conclusion of the trial, the impugned judgment convicting A-1and A-2 was passed by the learned Trial Court on 12.07.2018 in the following terms:-

121. From the testimony of PW1 and PW2, it is credibly proved that accused Vijay Pehlwan alongwith co-accused Vikram had taken away deceased Raghubir in a car driven by co-accused Vikram at around 10 am on 26.05.2011 and the dead body lying in the jungle was noticed by PW4 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 6 of 30 Rati Ram at around 11.30 am on 26.05.2011. On the basis of this statement Ex.PW4/A of Rati Ram the FIR no. 114 dated 26.05.2011 u/s 302/201 1PC was registered at Sushant Lok, Gurgaon at 1.50 pm. The time gap when the deceased was taken away and found murdered is around 90 minutes. The distance between both the places might be around 10-15 kilometers. From this last seen circumstance, an irresistible conclusion is arriving that the deceased was murdered by accused Vijay Pehlwan in furtherance of common intention with accused Vikram @ Manoj who was accompanying accused Vijay Pehlwan in the car. Ld. Counsel for the accused Vikram submitted that there is no direct enmity of accused Vikram with deceased neither he is beneficiary of plot, nor made any conspiracy thus no inference of any liability could be fastened upon him in present facts and circumstances. Accused Vikram accompanied Vijay Pehlwan in the car and thereafter the said incident of murder took place, then that accused not reported the matter to police and absconded, therefore in these facts and circumstances a definite inference can be drawn that he shared a common intention to kill the deceased Raghubir.

122. The last seen evidence is duly corroborated through the mobile call records of accused Vijay Pehlwan and accused Vikram @ Manoj which suggest that both are in contact prior to the date of incident as well as in the morning of the date of incident ie 26.05.2011 and thereafter also. The mobile call locations were also found to be at Delhi. The mobile call records of PW8 Suresh Halwai and that of accused Vijay Pehlwan also suggest they had talk with each other after the incident on 26.05.2011. Furthermore, the mobile phone talk between Vijay Pehlwan and PW2 Baljeet at around 10.18 pm on 26.05.2011. It is pertinent to notice here again that mobile phone location of Vijay Pehlwan at 10.18 pm is at Vadodra and at around 6 and 7 pm at Delhi. Accused in his statement u/s 313 Cr.P.C categorically stated that he was not in Delhi on 26.05.2011 and also stated that he was in Vadodra on26.05.2011 to get back his opel astra car and brought the same to Delhi, however not lead any positive evidence in this regard. Accused could not show even from the prosecution case that he was not in Delhi at the time of commission of offence whereas the prosecution able to prove his presence at Delhi at the time of offence. Thus, accused not able to prove the alibi that he was in Gujarat at the time of incident. Hence, this is an additional incriminating circumstance to be considered against the accused Vijay Pehlwan.

123. On appreciation of evidence, prosecution credibly able to prove following circumstances against the accused: (i) Last seen evidence of Raghubir by accused Vijay Pehlwan Vikram @ Manoj at around 10 am on 26.05.2011. (ii) taking away of deceased in car driven by Noticing of dead body lying in jungle at Gurgaon at Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 7 of 30 accused between Vijay Suresh around 11.30 pm on 26.05.2011. conversation (iii) Mobile Pehlwanand Vikram @ Manoj, and also between PW8 Halwai and accused Vijay Pehlwan. Location of all mobiles (iv) incident took place. (v) mobile conversation on the night of incident at 10.18 pm. (vi) Motive of crime ie forcible transfer of plot. (vii) False alibi of accused Vijay Pehlwan that he was at Gujarat at the time of incident. Threatening received by PW2 from Vijay Pehlwan during the vicinity where It is not necessary for the prosecution to prove each and every 127. circumstance relied upon, however the circumstances proved must be conclusively proved and from the said conclusive circumstances, a chain be so complete as to exclude the hypothesis of innocence and must show that in all human probability the act must have been done by the accused. Though the prosecution not able to prove the manner of arrest and consequent recoveries at the instance of accused persons in the manner projected by prosecution, however prosecution credibly proved the circumstance of last seen, identity of both the accused as well as their movements in Delhi and connection through mobile phones on the day of incident as well as around the incident and motive of crime. Furthermore, the accused Vijay Pehlwan plea of alibi also found false.”

13. It is pertinent to mention here that at the time of delivering the impugned judgment, the learned Trial Court observed that A-1 had been absconding from 06.04.2018 and had been declared as proclaimed offender vide order dated 07.07.2018. Thereafter, he was arrested by PS Crime Branch in Jabalpur, Madhya Pradesh on 20.11.2023. It is borne out from the record that A-1 had been granted bail vide order dated 04.04.2018 from 05.04.2018 till 06.04.2018 so as to allow him to be present at the Tehrvi Ceremony of his nephew, however, thereafter he absconded and did not surrender, and he was eventually declared proclaimed offender vide order dated 07.07.2018. In the said backdrop, since the statement of A-1 had been recorded much earlier and the matter was at the stage of arguments being addressed, in view of Section Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 8 of 30 353(6) of the Cr.P.C, the learned Trial Court pronounced the judgment dated

12.07.2018 thereby convicting the present appellant/A-1 as well. LEGAL SUBMISSIONS 14. Learned Senior Counsel urged that despite there being sufficient clarity in the testimony of PW-1 with regard to the identity of the A-1 since the inception, the name of A-1 had not been mentioned in the DD entry that was filed at the first instance, and such fact according to the ld. Senior Counsel, shows that the allegations raised against A-1, both in Section 161 testimony and the Court testimony, were afterthoughts; and barring such tainted evidence, there is no other concrete evidence which can link A-1 to the death of the deceased. He further argued that the Trial Court has completely misread the testimony of PW-1 and PW-2 since, in the missing report on

26.05.2011, the colour of the car was described yellow, however, the car which was allegedly recovered was a silver colour Hyundai Accent car. It was urged that even if PW-1 was an illiterate woman, she was expected to know the difference between yellow and silver. 15. It was urged that the prosecution has not been able to establish the location of A-1 near the place of taking away the deceased and also the place from where the dead body was discovered. It was urged that the said evidence is inadmissible due to absence of a Section 65B certificate. It was also argued that the contact name “Bej” does not match A-1’s name and guilt cannot be inferred based on speculation. 16. Learned counsel for the appellant challenged the evidence with regard to the recovery of wristwatch, gold & silver ring from Vadodara, Gujarat for the lack of independent witnesses and non-involvement of local police. It is contended that there is no reimbursement slip to substantiate the trip and there Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 9 of 30 are contradictions in the testimonies of police officials regarding the dates of the trip. It was pointed out that PW 41/IO admitted that the claim of Rs. 23,000/- was rejected which could indicate that the police team never actually travelled to Gujarat and the recovery of the wrist watch, gold & silver ring belonging to the deceased were planted upon A-1. 17. It was urged that the refusal to participate in the TIP5 by A-2 cannot be considered a circumstance against A-1 and cannot lead to drawing of an adverse inference against him. Insofar as the last seen/circumstantial evidence is concerned, ld. Senior Counsel relies upon the decision of the Supreme Court in Boby v. State of Kerala6, the relevant paragraphs read as under: “14. Shri Basant submitted that the trial court solely relied on the last seen theory and held that the prosecution had proved the same with regard to the chain of circumstances in this case. It is further submitted that conviction of an accused person cannot be sustained only on the basis of proving the last seen theory as the same was required to be corroborated with the statements of the witnesses that are examined during trial along with other evidence placed on record. While pointing out the discrepancies in the statements of prosecution witnesses, which were relied upon by the courts below, it was submitted that the conviction of the appellant herein could not be sustained on the said ground alone. xxx xxxxxx 23. Insofar as last seen theory is concerned, it will be relevant to refer to the following observations of this Court in the case of State of U.P. v. Satish: “22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the 5Test Identification Parade 6(2023) SCC OnLine SC 50 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 10 of 30 accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” xxx xxxxxx 24. It could thus clearly be seen that the last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out. xxx xxxxxx 36. It is thus clear that the only circumstance that now remains is the circumstance of the accused last seen in the company of the deceased on the basis of the evidence of PW-1. In that view of the matter, we find that, solely on the basis of last seen theory, the conviction could not have been recorded. The prosecution has utterly failed to prove that the recovery of the dead body of the deceased was at the instance of Boby (accused No. 3/ appellant herein). The recovery of the articles from the house of Boby (accused No. 3/appellant herein), even according to the trial court, is farce and fabricated. The recovery of the spade at the instance of Shibu @ Shibu Singh (accused No. 1) is from a place which, even according to the trial court, was also known on account of the disclosure statement made by Boby (accused No. 3/appellant herein).”

18. Reliance is also placed on the judgment of Darshan Singh v. State of Punjab7, wherein it was held that- “9. …. The normal approach in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion, that within all human probability, the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. xxx xxxxxx 37. Seen in this background, we need not go further and consider the evidence qua other circumstances sought to be proved by the prosecution since the failure to prove a single circumstance cogently can cause a snap in 7 (2024)3 SCC 164 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:19.02.2025 18:46:16 CRL.A. 188/2024 Page 11 of 30 conviction the chain of circumstances. There cannot be a gap in the chain of circumstances. When circumstantial evidence solely, then there should not be any snap in the chain of circumstances. If there is a snap in the chain, the accused is entitled to benefit of doubt. If some of the circumstances in the chain can be explained by any other reasonable hypothesis, then also the accused is entitled to the benefit of doubt.”

19. Lastly, the learned counsel for the appellant urged that the there were several investigative lapses on the crucial aspect for which reliance was placed on the decision in case of State of Gujarat v. Kishanbhai8, besides pointing out that the telephone calls that emanate from the CDRs brought on the record by the prosecution do not in any manner relate to the place of occurrence for which reliance was placed on the decisions in the case of Kiriti Pal v. State of West Bengal9 and Ravinder Singh @ Kaku v. State of Punjab10. It was also argued that mere exhibition of marking of exhibits upon the documents does not amount to proof of its content for which reliance was placed on the decisions by the Supreme Cout in the case of Narbada Devi Gupta v. Birendra Kumar Jaiswal11and Alamelu v. State12. 20. Per Contra, the ld. APP13 argued that this is not only a case of false plea of alibi but also of absconding. Reliance is placed on the CDR and the testimony of PW-1 which shows conspiracy between the accused persons. Further, in the testimony of PW-2, he states that around 10-15 days prior to the incident, A-1 had threatened him and his father/deceased on account of some monetary dispute. Lastly, to show the conspiracy between the accused