Romesh Sharma-Kunjum Murder Case Judgement

1 St. Vs Surinder Mishra etc.

IN THE COURT OF SHRI S. P. GARG : ADDL. SESSIONS JUDGE : NEW DELHI

Sessions case No.14/1999

State Vs. (1)Surinder Mishra (A-1)S/o Sh. Bhagwan Dass MishraR/o E 279, Sec. 15 Noida (UP)

(2)Tejinder Virdi @ Dolly(A-2)D/o Sh. Mahender Singh R/o B-22, Suraj Mal Vihar, Delhi(3)Jaspreet Virdi @ Sonu(A-3)D/o Sh. Mahender Singh R/o B-22, Suraj Mal Vihar, Delhi(4)Romesh Sharma (A-4)S/o Sh. Satya NarainR/o C-30, Mayfair Garden, New Delhi(5)Hem Chand @ Nani (A-5)S/o Sh. Raja RamR/o P-I/130, Mangol Puri, New Delhi(6)Sant Ram (A-6)S/o Sh. Ram GaneshR/o P-6/75, Mangolpuri, New Delhi(7)Ramesh @ Bobby @ Rajesh @ Ajay @ Raju (A-7)S/o Sh. Munna LalR/o Q-2/22, Mangolpuri, New Delhi


FIR No. 188/99U/s 302/114/506/120B/34 IPC PS Mehrauli

J U D G M E N T

1. Accused Surinder Mishra (A-1), accused Tejinder

Virdi @ Dolly (A-2), accused Jaspreet Virdi @ Sonu (A-3),

accused Romesh Sharma (A-4), accused Hem Chand @ Nani

(A-5), accused Sant Ram (A-6) and accused Ramesh @

Bobby @ Rajesh (A-7) were arrested by the police of PS

Mehrauli vide FIR No. 188/99 and were challaned to the court

for trial for the commission of the offences punishable

U/s.302/506/114/120-B/34 IPC. In nut shell, case of the

prosecution is as under :-

Facts of the case

2. Prosecution case unfolds a pathetic, chilling and

sinister phenomenon where an innocent life was eliminated

from this worldly scene and consigned to her heavenly abode

by putting an untimely end.


3. Present case was registered by the police of PS

Mehrauli on the statement of Ram Achal Tiwari on

20.03.1999. In his statement, complainant Ram Achal Tiwari

disclosed to the police that he was working as caretaker at Jai

Mata Di farm house, Chattarpur for the last about two years

and was residing there. A-4 was in jail for the last several

months and A-1, nephew of A-4, was looking after the farm

house. On 20.03.1999, at about 8 AM, A-1 came at the farm

house and met his men A-5 to A-7 and one Rakesh (PO). The

said persons were engaged at the farm house for the last

about 1 ½ months. After about twenty minutes, A-1 reached

at the farm house and told him that Kunjum madam (since

deceased) would come to the farm house and that he should

get mandir cleaned for the purpose of pooja to be done by

her. At about 11.30 AM, two girls Dolly (A-2) and Sonu (A-3)

who used to come to the farm house along with A-1 came in a

car along with one pandit Chhawi Dass and told him to clean


the mandir and they would return with pooja articles after

sometime for getting pooja done and thereafter they left the

place. The complainant further disclosed to the police that at

about 12 noon, deceased Kunjum came in her Toyota. She

called him and told that the car had got punctured and he

should call some mechanic. He, thereafter, called mechanic

who went back to his shop to bring tools. Deceased Kunjum

handed over keys of the kothi to him and told him to open it.

He went along with the deceased Kunjum and opened the

building and thereafter, he along with deceased Kunjum

entered the same. Kunjum went to pooja room and on her

return from there, she reached the main gate of the building at

about 12.30 PM. At that time, A-5 to A-7 along with accused

Rakesh entered the building. A-5 and accused Rakesh were

having knives. A-6 was having a revolver while A-7 was

having a bottle. All of them confronted the deceased Kunjum

as to how she had entered the building. A-7 and Rakesh


felled Kunjum on the ground and A-5 gave blows with knife on

various body parts of deceased Kunjum while Rakesh gave

blow with bottle on her chest. A-6 waived revolver threatening

him that in case he came there, he would be shot at. All the

said four persons committed murder of said Kunjum and took

away hand-bag and mobile phone of the deceased and fled

away from the spot. He rushed out to inform the police

control room but could not get the number and went to

Chattarpur mandir and informed the police present there.

Complainant further disclosed that A-6 Sant Ram was the

person who was named by him as “Pramod”.

4. On this statement of the complainant Ram Achal

Tiwari, the IO got the case U/s. 302/397/506/34 IPC

registered by sending a rukka at about 3 PM.

5. Earlier to getting the case registered on 20.03.1999,

at about 2 PM, SI J.S. Joon was on patrolling duty in the area

of Police Post along with HC Satish Chand and Ct. Kishan


Lal. He got the information on wireless set from Addl. SHO to

reach at Jai Mata Di farm house. Accordingly, he reached

there and came to know about the murder of deceased

Kunjum Budhiraja. Inspector Jagdish Meena posted as Addl.

SHO, PS Mehrauli was deputed at Chattarpur Mandir for

Navratra arrangement on that day. Most of the staff was

deputed with him. He was present at the main gate of

Chattarpur mandir. At 01.15 PM, Ram Achal Tiwari came to

him and told him that Kunjum madam had been murdered and

he should come immediately. Inspector Jagdish Meena along

with staff and Ram Achal Tiwari reached at the spot and

found one Toyota car No. DL-3CB-9399 parked there. The

front side tyre of the car was lying punctured. Ram Achal

Tiwari took the police inside the farm house. There, the dead

body of deceased Kunjum Budhiraja was found lying at a

distance of about four ft. inside from main gate of the kothi.

There were blood stains and cut marks on the head, neck and


chest of the deceased.

6. After recording statement of the complainant Ram

Achal Tiwari, Inspector Jagdish Meena inspected the spot.

He lifted blood from the spot. He also lifted one chappal which

was in the feet of the deceased. He also seized blood stained

shirt of the complainant and prepared necessary seizure

memo. Crime team and dog squad were summoned. Scene

of occurrence was got photographed. IO prepared rough site

plan of the place of incident. IO recorded statements of the

concerned witnesses. He also recorded supplementary

statement of complainant Ram Achal Tiwari.

7. Inspector Jagdish Meena gave a slip on which

telephone No.7166786 was written for verification to SI J.S.

Joon. It was recovered from the spot where A-5 to A-7 used

to live. SI J.S. Joon took address of owner of that phone from

197 and found that the said telephone was installed at 21/24,

Mangolpuri, Delhi. On reaching there, SI J.S. Joon found one


Aslam residing there. From him, he came to know that

Rakesh (not arrested) used to reside there and was residing

at B-16, Staff Quarters, Fire Station, Moti Nagar. However,

accused Rakesh could not be traced there after and has

remained untraced till date.

8. Further case of the prosecution is that IO prepared

inquest papers at the spot. On return at the PS, IO got

deposited seized articles in the malkhana. Body of deceased

Kunjum was got sent for post mortem. On 21.03.1999, post

mortem on the dead body of the deceased Kunjum was got

conducted. After the post mortem, the dead body was

handed over to her relations.

Apprehension of A-1

9. On the intervening night of 22/23.03.99, police of

crime branch, Ahmedabad City got information that nephew

of A-4 namely Surender Mishra (A-1) was staying in room

No.50 at Kapadia Guest House and he had committed murder


of deceased Kunjum. On that information, Inspector Tarun

Kumar Amrit Lal reached there at about 1 or 2 AM. From

there, at room no.50, A-1 was apprehended. A-1 disclosed

his name as Raj Kumar Bhatia. A-1 had stayed in the said

guest house under a fictitious name of Raj Kumar Bhatia. A-1

was arrested and the room in which he was staying was

searched. Some articles belonging to A-1 were seized by

preparing panchanama. A-1 was brought to the PS and was

interrogated. His disclosure statement was recorded there. In

the disclosure statement, A-1 disclosed his mobile number as

9810114857. Thereafter, A-1 was produced before the courts

at Ahmedabad on 23.03.1999.

10. On getting intimation from Ahmedabad about

apprehension of A-1 by crime branch, Inspector Jagdish

Meena along with SI Vijay Kumar reached there. He obtained

the original disclosure statement of A-1. After seeking

remand for four days from the courts at Ahmedabad, A-1 was


brought to Delhi. IO recorded the statements of the

concerned witnesses there and seized photocopy of register

of the guest house where A-1 had stayed. At Delhi, A-1 was

interrogated and his disclosure statement was recorded. He

disclosed the mobile telephone number of A-2 and that of his

own mobile number. A-1 was got medically examined. He

gave graphic detail about his involvement in the commission

of offence. He also disclosed complicity of other accused

persons.

11. On 25.03.1999, IO seized three letters handed over

to him by Pawan Budhiraja, brother of the deceased, and the

IO prepared the necessary memos.

Apprehension of A-2 and A-3

12. On 25.03.1999, A-2 and A-3 were apprehended at

B-12, Suraj Mal Vihar. They were arrested and their

disclosure statements were recorded. In her disclosure

statement, A-2 disclosed her mobile number as 9811024145


and that of A-1 as 9810114857. Mobile telephone having SIM

No.9811024145 was recovered from A-2 and necessary

seizure memo was prepared.

Apprehension of A-6

13. On 10.04.1999, efforts were made to apprehend A-

6 (Sant Ram) at village Sukha Ka Tiwari but he could not be

traced there. On 12.04.1999, SI J.S. Joon came to know that

A-6 was detained in jail in case FIR No.55/99, U/s. 364 IPC,

PS Sangrampur, Uttar Pradesh. On 17.04.1999, he got

production warrant of A-6 issued from the Court of Sh. V.K.

Khanna, Ld. Metropolitan Magistrate. On 26.04.1999, A-6 was

arrested and his police remand for seven days was taken. A-6

was interrogated and his disclosure statement was recorded.

A-6 led the police party to the place of incident and the IO

prepared necessary pointing out memo.

Apprehension of A-5

14. On 09.05.1999, accused Hem Chand (A-5) was


apprehended near park of “P” Block, Mangolpuri, Delhi. A-5

was interrogated and his disclosure statement was recorded.

On 10.05.1999, five days police custody remand of A-5 was

taken. He was taken to Meerut in search of co accused Babu

at Saidpur but he could not be traced. Further case of the

prosecution is that in the supplementary disclosure statement

made by A-5 on 13.05.1999, he disclosed to get recover the

golden chain which was removed by him from the person of

the deceased from his house at P-1/130, Mangolpuri. A-5,

thereafter, got recovered the chain from the almirah lying on

the first floor on his house. IO prepared the necessary seizure

memo to that effect.

Apprehension of A-7

15. On return to Delhi on 11.05.1999, SI J.S. Joon

came to know about apprehension of A-7. He along with A-5

reached at Tis Hazari in the Court of Sh. R.P. Singh. There

A-5 identified A-7 as one of his co accused in this case. A-7


was interrogated with the permission of the Court and was

arrested in this case. His police custody remand for three

days was taken. He was interrogated and his disclosure

statement was recorded.

Apprehension of A-4

16. A-4 was already in judicial custody prior to the date

of incident in some other case. Finding his involvement in this

case, on 06.06.96, IO got issued his production warrant in

court in this case by moving an application for that purpose.

On 07.06.1999, A-4 was arrested with the permission of the

court and his police custody remand was taken. He was

interrogated and his disclosure statement was recorded.

Specimen signatures of A-4 were also taken. Subsequently,

the IO got sent the specimen signatures along with the

questioned writing to FSL, Malviya Nagar and collected FSL

report subsequently.


Further investigation

17. During investigation, IO moved an application for

getting TIP proceedings of the gold chain conducted. The TIP

proceedings were conducted by Sh. Rajnish Kumar, Ld.

Metropolitan Magistrate on 29.05.1999. PW Rani Budhiraja

mother of the deceased participated in TIP proceedings and

identified the said chain.

18. During further investigation on 25.05.1999, IO

seized various applications moved by A-1, A-2 and A-3 to

have meetings with A-4 in lock-ups and Tihar Jail.

19. On 30.05.1999, IO got prepared scaled map.

20. During investigation, IO seized the copy of the

agreement executed between A-4 and one Vikram Singh,

security officer. Print-outs of mobile telephone

No.9811024145 pertaining to A-2 and mobile telephone

No.9811155439 pertaining to witness Vikram Singh were

obtained. Print-out relating to mobile No.9810114857


pertaining to A-1 were also taken from Bharti Cellular. During

further investigation, the IO recorded the statements of the

concerned witnesses at different stages of investigation. After

completion of investigation, the police of PS Mehrauli filed

challan against A-1 to A-7 in the Court of Ld. M.M. for the

commission of aforesaid offences.

21. Accused Subhash @ Babu, Davinder @ Balle,

Ganga Singh @ Guddu and Rakesh were shown in column

No.2 as they could not be arrested during investigation.

22. After complying with the provisions of section

207/208 CrPC, the Ld. M.M. committed the case qua A-1 to

A-7 before the court of sessions.

Charge

23. After hearing the Ld. Special PP for the State and

the Ld. defence counsels for all the contesting accused

persons, Charge U/s. 302 read with Section 34 IPC was

ordered to be framed against A-5, A-6 and A-7. Separate


charge U/s.120B read with Section 302 IPC was ordered to

be framed against A-1 to A-7 by my ld. predecessor vide

detailed order dated 25.09.1999. All accused persons pleaded

not guilty to the charges and claimed trial. Revision against

charge filed by some accused herein before the Hon'ble High

Court resulted in its dismissal.

Prosecution Evidence

24. To bring home charge against accused persons,

prosecution examined in all 37 witnesses namely PW1 Ms.

Meena Bhatia, PW2 Ct. Brijbir Singh, PW3 HC Joseph PA,

PW4 Mahinder Parshad, PW5 Amara Bhai K. Patel, PW6 SI

Sunil Lamba, PW7 HC Parkash Singh, PW8 SI Madan Pal,

PW9 Deepak Gupta, PW10 Sh. Rajnish Kumar Gupta, PW11

Capt. Rakesh Bakshi, PW12 Tarun Kumar Amritlal, PW13

Mahinder Singh, PW14 SI Mohar Singh, PW15 Sunil Kumar

@ Sanjay, PW16 Ram Achal Tiwari, PW17 Hari Chand,

PW18 Pandit Deepak Sharma, PW19 Dilbag Singh, PW20 Ct.


Garib Chand, PW21 L/Ct. Neelam, PW22 HC Satish Chand,

PW23 HC Ramesh Kumar, PW24 SI Kanwar Lal, PW25 V.N.

Dixit SI (Retd.), PW26 Ct. Khushi Ram, PW27 Mrs. Rani

Budhiraja, PW28 Pawan Budhiraja, PW29 L/Ct. Milyani,

PW30 Vikram Singh, PW31 Dr. T. Millo, PW32 SI Vikay

Kumar, PW33 HC Balbir Singh, PW34 Deepa Verma, PW35

SI J.S. Joon, PW36 Inspector Jagdish Meena and PW37

Inspector Surender Sharma.

Statements of accused persons

25. Statements of the accused persons were recorded

U/s. 313 Cr.P.C. Incriminating evidence appearing against

them was put to them to explain. Accused persons denied

their involvement in the commission of the offence. Their plea

is that they have been falsely implicated in this case.

26. Plea of A-1 is that he never met A-4 in jail though

he had moved applications to meet him. He did not know

deceased Kunjum, A-2 and A-3. He never visited the farm


house. Police had taken him to Ahmedabad. Police got his

photograph published in the newspaper. He did not stay in

any guest house at Ahmedabad. He did not make any

disclosure statement.

27. A-2 has pleaded that she never looked after the

property of A-4. She used to meet A-4 while he was in

custody to seek his instructions to pursue his cases. She did

not know Pawan Budhiraja. She did not have any mobile

number 9811024145.

28. Plea of A-3 is that she never made any disclosure

statement.

29. Plea of A-4 is that he had no relation with his elder

brothers. He was not aware if A-1 was his nephew. He was

arrested in some other case in October, 1998. Amrit

Budhiraja, father of deceased Kunjum, was having his power

of attorney and he was looking after all his properties. He

never met A-1, A-2 and A-3 in jail. During his custody, he was


forced to put signatures on many blank papers by the police.

30. Further defence of A-4 is that he and deceased

Kunjum wanted to marry each other with the consent of her

parents. Pawan Budhiraja brother of the deceased used to

come to meet him in jail. None except the family members of

the deceased Kunjum; caretaker Ram Achal Tiwari and

Dilbag were authorized to enter the farm house. Kunjum and

her father were already having keys of the farm house and

other places belonging to him. No security guards were

employed by him from Vikram at his instance at Jai Mata Di

farm house.

31. Further stand of A-4 is that he never made any

disclosure statement to the police. He has been falsely

implicated due to political vendetta and to grab his property

and also to tarnish his image in the society. He has been

falsely implicated due to conspiracy hatched by his political

opponents to grab his property. They hatched conspiracy and


got him implicated in the murder of his fiancy Kunjum after 2

½ months of the incident. He is innocent.

32. Plea of A-5 is that he did not go to the farm house

at any time nor ever resided there. He was wrongly identified

by the PWs at the instance of the police. The case property

has been planted upon him.

33. Case of A-6 U/s. 313 Cr.P.C. is that he was

arrested by the UP police. He did not make any disclosure

statement. After the expiry of his wife, he started residing at

his village Sukha Ka Tiwari, Amethi. During the cutting of

crops, there was a quarrel with his neighbourer due to which

he has been implicated and arrested. None of the co accused

or the victim was known to him.

34. Plea of A-7 is that he is innocent. He did not make

any disclosure statement.

Defence

35. A-4 examined DW1 Naveen Budhiraja in his


defence. None other accused preferred to examine any

witness in their defence.

Argument for State

36. I have heard at length Ld. Special PP for the State

Sh. S.K. Saxena and Ld. defence counsels for the accused

persons.

37. Contention of Ld. Special PP for the State is that

the prosecution has established its case against all the

accused persons beyond reasonable doubt. PW16 Ram

Achal Tiwari has not supported the prosecution due to ulterior

motive as he has been won over by the accused persons.

Murder of deceased Kunjum took place at the farm house

owned by A-4. The prosecution has established that A-1 to A-

4 hatched conspiracy to eliminate deceased Kunjum as she

had started raising more and more demands. A-1 to A-4 were

party to the conspiracy to eliminate the deceased. A-4 forced

the deceased Kunjum to come to the farm house on the


pretext of performing pooja in the temple therein in pursuance

of the criminal conspiracy to enable A-5 to A-7 along with their

associates to execute the plan to commit her murder. The

testimony of security guards namely PW15 Sunil Kumar and

PW17 Hari Chand categorically proves the involvement of A-5

to A-7 along with their associates in committing murder of

deceased Kunjum. There is nothing to disbelieve their positive

testimonies. Involvement of A-1 in the commission of offence

is apparent as after the occurrence, A-1 fled to Ahmedabad

and stayed in a guest house under fictitious name of Raj

Kumar Bhatia. He was arrested by the crime branch Police,

Ahmedabad and his disclosure statement was recorded in

which he categorically confessed about the conspiracy in

which deceased Kunjum was got murdered through the hired

assassins A-5 to A-7. The print outs of the mobile phones of

PW30 Vikram, A-1 and A-2 all reveal that they all remained in

constant touch even after the commission of the murder. The


letters written by the deceased on record also show that the

keys of the farm house were not with her and A-1 to A-3 used

to deny keys of the farm house to her. They also did not allow

her brother Pawan Budhiraja to meet A-4 in jail and used to

mark their presence in the register before his arrival. They

had also threatened to kill Pawan Budhiraja. It is further

argued that on the day of incident, A-1 to A-3 had visited the

farm house prior to the arrival of the deceased and had

conversation with A-5 to A-7 and their associates.

38. Further argument of Ld. Special PP for the State is

that golden chain belonging to the deceased was got

recovered by A-5 and the same was got identified during TIP

proceedings. The prosecution has established on record facts

from which inference can safely be drawn that A-1 to A-4

hatched criminal conspiracy to commit murder of the

deceased Kunjum. No direct evidence to prove conspiracy is

possible.


Suresh Chandra Bahri Vs. State of Bihar, 1994 Cr.L.J. (SC)

3271;

Ajay Aggrawal Vs. Union of India & Ors. AIR 1993 (SC)

1637;

State of Maharashtra Vs. Som Nath Thapa, 1996 Cr.L.J. (SC)

2448;

State of Tamil Nadu Vs. Nalini & Ors. 1999 Cr.L.J. (SC)

3126;

Ferozuddin Bashruddin Vs. State of Kerela (V) 2001 SLT (SC)

880;

State of Punjab Vs. Jagir Singh & Ors. AIR 1973 (SC)

2407;

Inder Singh Vs. State (Delhi Admn.) AIR 1978 (SC)

1091;

Anthony D'Souza Vs. State of Karnataka JT 2002 (9) (SC) 257

and

State (NCT of Delhi) Vs. Navjot Sandhu AIR 2005 (SC)

3820.

Arguments for accused persons

39. On the other hand, Ld.counsel for A-1 has

controverted the arguments and has vehemently argued that

A1 has been falsely roped in this case being the nephew of A-

4. He was arrested from Delhi and was taken to Ahmedabad


where his signatures were got on blank papers. A-1 never

stayed at any guest house. He was not going to be benefited

by committing murder of the deceased. He was not having

keys of the farm house. There are material discrepancies in

the testimony of the witnesses regarding involvement of A-1.

Nothing was got recovered at the instance of A-1. No TIP was

conducted for his identification. He did not own any mobile.

He did not use to visit the farm house.

40. Ld. counsel for A-2 and A-3 has strenuously argued

that there is not an iota of evidence against any of these two

accused persons showing their involvement in the incident.

They have been falsely implicated in this case. Both A-2 and

A-3 were like sisters of A-4 and they used to tie “rakhi” to him.

Material prosecution witness Ram Achal Tiwari has not

supported the prosecution at all. These accused persons

were arrested after many days without any evidence

whatsoever against them. Prosecution witnesses examined


by the prosecution have made improvements in their

statements before the court. A-2 and A-3 were workers in the

political party floated by A-4. The prosecution has failed to

prove if A-2 and A-3 owned any mobile phones. They were

party workers only and in that capacity used to meet A-4 to

assist him in his cases. A-2 had never declared to marry A-4.

41. Ld. defence counsel for A-4 has vehemently

contended that there is no evidence, whatsoever, on record to

show if A-4 hatched criminal conspiracy to commit murder of

the deceased. There is no evidence on record to show if the

deceased had started harassing A-4 by making inflated

demands prompting him to eliminate her. The letters rather

written by the deceased to A-4 during his detention in jail,

show love and affection of the deceased for him. Deceased

used to worship A-4 and there was no occasion for A-4 to

eliminate her. A-4 had already given house at C-31, Hauz

Khas to the deceased. He had also given two cars to her. So,


there was no occasion for the deceased to be more

demanding. There is no evidence on record to show if A-5 to

A-7 had ever any interaction with A-4 in jail to enter into any

criminal conspiracy.

42. A-4 was arrested in this case after about 2½

months of the incident. Nothing incriminating was recovered

at his instance. A-4 after the death of the deceased performed

last rites with the permission of the court and filled sindhoor in

her mang to confer her a status of a wife. Parents of the

deceased never suspected involvement of A-4 in the incident.

No security guard was got deployed by A-4 at the farm house.

43. It is further argued that there are various omissions

and contradictions in the prosecution case which make it

unsafe to convict A-4. Material prosecution witnesses

including PW16 Ram Achal Tiwari and PW19 Dilbagh did not

at all support the prosecution. IO failed to prove on record the

brief facts prepared by him at the time of inquest proceedings.


Names of the assailants did not find mention in brief facts

prepared by him.

44. Ld. counsel for A-5 to A-7 has submitted that there

is no evidence to show if all these accused persons were

residing at the farm house or they participated in the

commission of the offence. Material prosecution witnesses

Ram Achal Tiwari, Dilbagh Singh and Pandit Chawi did not

support the prosecution on this aspect. All these accused

persons had no motive to commit murder of the deceased. No

weapon of offence was recovered from their possession.

Nothing incriminating was recovered at the time of their

apprehension. The place and time of arrest of these accused

persons has been fabricated by the prosecution. There are

vital discrepancies in the statements of the prosecution

witnesses regarding presence and arrest of these accused

persons. These accused persons never met A-4 in jail to

hatch conspiracy. The golden chain has been planted upon


A-5. PW16 Ram Achal Tiwari, the star witness of the

prosecution has not testified if any of these accused persons

was residing at the farm house.

Authorities

45. Ld. defence counsels for the accused persons have

relied upon the authorities reported in :-

Ramreddy Rajesh Khanna and another Vs. State of A.P.

AIR 2006 SC 1656;

Ashish Batham Vs. State of M.P. AIR 2002 SC 3206;

Sanju Vs. State of Kerela AIR 2001 SC 175;

State of Himachal Pradesh Vs. Jeet Singh AIR 1999 SC

1293;

Arun Kumar Vs. State 1996 Indlaw Del 126;

Vijay Kumar and another Vs. State 1995 Indlaw Del

10641;

Surrinder Pal Singh Vs. Delhi Administration AIR 1993

SC 1723;

S.D. Soni Vs. State of Gujrat AIR 1991 SC 917;

Vinod Kumar Vaidh and another Vs. State 1992 Indlaw

Del 11;

Sukhdev Singh Vs. State (Delhi Admn) 1992 Indlaw Del

427;

Param Hans Yadav and Sadanand Tripathi Vs. State of


Bihar AIR 1987 SC 955;

Sharad Birdhichand Sarda Vs. State of Maharashtra AIR

1984 SC 1622;

Shri Ram Vs. State of UP AIR 1975 SC 175;

Kali Ram Vs. State of Himachal Pradesh 1973 2 Scc 808

and

Deoman Upadhyaya Vs. State of UP AIR 1960 SC 1125.

Findings

46. I have considered the arguments of Ld. Special PP

for the State and Ld. defence counsels for the accused

persons addressed at bar. I have minutely scanned the entire

case before me.

47. The case of the prosecution is being discussed as

under :

Homicidal Death of deceased Kunjum

i) Ld. defence counsels for the accused persons have

not disputed homicidal death of deceased Kunjum. Their only

plea is that the accused persons have nothing to do with the

homicidal death of deceased Kunjum.


ii) Material testimony on this aspect is that of PW31

Dr. T. Millo who proved the post mortem report Ex.PW31/A

prepared by Dr. Lal Rozama. He has also proved the

document Ex.PW31/B i.e. endorsement of Dr. Rozama for

conducting post mortem. This witness was not cross

examined by Ld. defence counsel. So, the testimony of this

witness regarding conducting of post mortem on the dead

body of the deceased Kunjum has remained unchallenged

and unrebutted. Ld. defence counsels for the accused

persons did not challenge the contents of the post mortem

report and the cause of death opined by the expert witness.

No other cause of death of the deceased was suggested by

Ld. defence counsels.

iii) Perusal of post mortem report Ex.PW13/A

demonstrates that number of injuries were caused on the vital

organs of the deceased. In the post mortem report, 13

injuries of various dimensions are stated to have been caused


to the deceased. All these injuries were opined fresh in

nature. These injuries were further opined antemortem in

nature. Death was opined due to cumulative effect of the

injuries mentioned in the post mortem report. It was further

opined that injuries No.5, 10 and 11 could cause death

individually in the ordinary course of nature. These injuries

were opined to have been caused by sharp-edged stabbing

weapon.

iv) The injuries mentioned in the post mortem report

have not been denied in cross of this witness. Deceased was

hail and hearty prior to entering inside the kothi. Number of

repeated injuries with sharp weapons on the person of an

unarmed lady fully proves intention of the assailants to see

her dead in every eventuality. Deceased Kunjum died at the

spot. Infliction of so many injuries repeatedly at various body

organs of the deceased shows that the assailants were bent

upon to kill the deceased. Definitely, it was handy-work of


more than one assailant as argued by Ld. Special PP for the

State.

v) Other prosecution witnesses including PW15 Sunil

Kumar, PW16 Ram Achal Tiwari and PW17 Hari Chand have

all testified about the circumstances in which the death of the

deceased took place. So, in my view, it is a case of culpable

homicide and only object of the assailants was to put an end

to the life of the deceased under all probability.

Involvement of A-5 to A-7

48. To prove its case, the prosecution relied upon the

testimony of an eye witness PW16 Ram Achal Tiwari to

establish involvement of A-5 and A-7 in the commission of

incident. However, at the outset, it may be mentioned that

PW16 Ram Achal Tiwari did not at all supported the

prosecution on this aspect. He categorically claimed that he

was not present at the time of incident. He did not attribute

any role to A-5 to A-7 in his deposition before the court. So,


the prosecution has failed to produce eye witness account of

the incident. No other eye witness who had seen the incident

was relied upon by the prosecution.

49. However, the prosecution has relied upon

circumstantial evidence to prove its case against A-5 to A-7.

50. Case of the prosecution is that A-5 to A-7 along

with their associates Rakesh (since PO), Davinder @ Balle,

Ganga Singh @ Guddu and Subhash Babu (not arrested)

committed murder of deceased Kunjum in pursuance of

criminal conspiracy hatched among all the accused persons.

Ld. defence counsels for A-5 to A-7 has refuted this allegation

of the prosecution and has vehemently argued that none of

these accused persons ever resided at Jai Mata Di farm

house and none of them was present at the time of incident.

The circumstances to connect A-5 to A-7 with commission of

the offence are taken up as under :-

A) Last seen


i) Case of the prosecution is that A-5 to A-7 were last

seen with deceased at the time of occurrence.

ii) Material testimony showing involvement of A-5 to A-

7 along with their associate Rakesh (PO) in the commission of

the offence is that of PW15 Sunil Kumar @ Sanjay. In his

deposition before the court, this witness claimed that in March

1999, he was working as security guard in a firm in which

Vikram Singh was the director. He was given duty as security

guard at Jai Mata Di farm house in March 1999. Besides him,

there were four other security guards namely Davinder Singh,

Nageshwar Singh, Het Ram and Hari Chand (PW17). Mr.

Tiwari was Incharge of Jai Mata Di farm house. Besides Mr.

Tiwari, seven persons used to stay at Jai Mata Di farm house.

They were Hem Chand @ Nani (A-5), Rakesh (PO), Sant

Ram (A-6), Ramesh (A-7) and three more whose names he

did not remember. The witness further deposed that

sometimes A-1 and two ladies (A-2 and A-3) used to visit Jai


Mata Di farm house. A-1 to A-3 used to visit farm house very

often.

iii) Further deposition of the witness is that he was on

duty at Jai Mata Di farm house about a week prior to

20.03.1999. On that day, at about 8 AM, A-1 came at the farm

house. He met A-5 to A-7 etc, in the farm house and stayed

there for about half an hour. Thereafter, at about 11.30 AM,

A-2 and A-3 along with one pandit came there and met Mr.

Tiwari. They told Mr. Tiwari to get mandir cleaned. Thereafter,

both of them proceeded towards the gate where A-5 to A-7

were standing and met them. After sometime, A-2 and A-3

came back and told Mr. Tiwari that they were going to

purchase samagri for pooja and would come after a short

while but they did not come back.

iv) Further deposition of the witness is that after about

half an hour, one lady whose name he came to know later on

as Kunjum came in the farm house in a black car. One of the


tyre of front wheel of the car got punctured. He had seen that

lady Kunjum for the first time on that day. That lady i.e.

Kunjum told Mr. Tiwari to find out some mechanic as her front

car tyre had got punctured. Mr. Tiwari brought one mechanic.

Since, mechanic was having no “pana”, he left. Thereafter,

deceased Kunjum took out keys from her purse and gave it to

Mr. Tiwari and told him that the “kothi” had to be cleaned and

he should accompany her. Thereafter, they went inside the

kothi.

v) The witness further deposed that within five to

seven minutes of Kunjum and Tiwari entering inside the kothi,

A-5 to A-7 along with Rakesh (PO) also followed them inside

the kothi. After 15 / 20 minutes, all the four persons i.e. A-5 to

A-7 and Rakesh (PO) came out and told three others to go to

market. Thereafter, all the seven persons left for the market.

vi) The witness further deposed that after 5 / 7

minutes, Mr. Tiwari came and told them that they should take


care of Madam (Kunjum) as all the seven had stabbed

Madam Kunjum and had run away. Mr. Tiwari further told

them to take care of Kunjum as he was going to PS to inform

the police. The witness further disclosed that thereafter they

went inside the kothi and saw that Madam Kunjum was blood

stained. After sometime, police along with Mr. Tiwari reached

there.

vii) In the cross examination on behalf of A-4, the

witness stated that Mr. Vikram had brought him to Jai Mata Di

farm house where he was given duty. He was not having any

appointment letter with him. He was having no document to

show that he was working with Mr. Vikram in his security

service. It was his first posting at Jai Mata Di farm house with

Mr. Vikram. His bio-data was noted down by Mr. Vikram. He

knew him earlier since the time he was working for Jain

Security Services. The witness further stated that Jai Mata Di

farm house was at a distance of half Km from PS Mehrauli.


He had not gone to PS Mehrauli. Police official with three star

had asked him as to how murder took place and he narrated

all the facts which were seen by him. PW Vikram came at the

spot while he was present. There were two gates at Jai Mata

Di farm house. One gate used to remain open and the other

closed. He used to stay at Jai Mata Di farm house after duty

hours. There was office near the gate and in the same office,

they used to reside. They used to cook their meals there. This

witness fairly admitted that he had not received payment for

doing this duty at Jai Mata Di farm house. The witness denied

that he was introduced as a false witness or that he never

worked at Jai Mata Di farm house as security guard.

viii) In the cross examination on behalf of A-2 and A-3,

this witness was confronted with the statement Ex.PW15/DA

made by him to the police on some facts which were not

made by him to the police but deposed before the court.

ix) On behalf of A-5 to A-7, this witness was tested in


the cross examination at length. In the cross examination,

again this witness was confronted on some facts with his

statement Ex.PW15/DA. The witness explained that other

security guards Dhirender and Nageshwar were on duty with

him at that time. Mr. Vikram had taken him to Jai Mata Di farm

house for deploying him and had explained to him the duties

which he was to perform. He was mainly deputed at the gate.

Dilbagh and Pandey also used to reside there besides seven

persons mentioned by him above and Ram Achal Tiwari. No

advance information was given to him regarding arrival of

deceased Kunjum. A-5 to A-7 were known to him by face. He

could identify A-5 by face and by name. Ram Achal Tiwari

was Manager. A-5 to A-7 used to come in and at times, used

to go out from the farm house. They used to remain inside

their room mostly. The witness further admitted that A-5 and

other servants did not use to talk to him and other guards.

x) The witness further stated that deceased Kunjum


came to the farm house at about 12.30 PM. The gate was

opened by security guard Dhirender when Kunjum came. He

was also present there. They allowed Kunjum after Ram

Achal Tiwari identified her by opening the gate. Deceased

took the car upto mandir, parked her car there and from there,

she proceeded on foot towards kothi. The witness denied the

suggestion of Ld. defence counsel that Kunjum had taken her

car upto porch as per instruction of Tiwari. The witness further

denied the suggestion that keys were not handed over by

Kunjum to Tiwari or that kothi was already open or cleaned

before Kunjum reached there.

xi) The witness denied the suggestion that he had

never gone to the farm house or had not worked at any time

there. The witness further denied the suggestion of the Ld.

defence counsel that when Ram Achal Tiwari had gone to call

mechanic at about 12 noon, some persons got entry saying

that they wanted to meet Ram Achal Tiwari and Dilbagh or


that after entering, one of them took all the guards on the

point of gun and those remaining unknown persons went

inside the kothi to commit robbery or that at that time, Kunjum

was inside the kothi for taking rest or that when she tried to

intervene and raised alarm, the unknown robbers killed her

and ran away. The witness denied the suggestion that Ram

Achal Tiwari came back at about 12.30 PM and found Kunjum

lying dead inside the kothi. The witness denied the suggestion

that A-5 to A-7 along with Rakesh never resided at the kothi

or that he had never seen them prior to their arrest or that all

these accused persons were shown to him by the police after

their arrest.

xii) In the cross examination on behalf of A-1, the

witness stated that no list was supplied by Mr. Vikram as to

who were the persons who were allowed to go inside the

kothi. Mr. Tiwari had not supplied him the photos of the

persons who were not allowed to enter inside the farm house.


Dhirender was Incharge of the security guards. Vikram used

to make entries regarding the presence of security guards.

Vikram was not coming daily and he used to come

occasionally at the farm house.

xiii) Overall testimony of this witness reveals that he has

asserted himself along with other security guards including

PW17 Hari Ram to be present at the spot on the day of

incident. The accused persons have challenged employment

of this witness as security guard at Jai Mata Di farm house at

any time and have argued that this witness has been falsely

introduced by the police.

xiv) Scanning the testimonies of the prosecution

witnesses on this aspect, I find no substance in the contention

of the Ld. defence counsels that this witness along with PW17

Hari Chand was not employed by PW30 Vikram Singh as

security guard at Jai Mata Di farm house.

xv) This witness in his testimony categorically asserted


himself to have been deputed as security guard for the last

about one week prior to the incident. Earlier this witness was

working as security guard with Jain Securities at Rohini from

1998 till January 1999 as disclosed by him in the cross

examination of A-4. This witness gave graphic detail as to

how and under what circumstances deceased Kunjum

happened to reach at Jai Mata Di farm house and how and

under what circumstances her murder took place. This

witness identified A-5 to A-7 before the court. He also

asserted PW16 Ram Achal Tiwari to be residing there and

taking care of the farm house. He also named Dilbagh

residing in the farm house. Had this witness been not present

at the spot working as security guard, he could not have

given so detailed sequence of the events even on those facts

which are not in controversy. Facts regarding tyre of the car of

the deceased to have got punctured, calling of mechanic by

Ram Achal Tiwari, his inability to get the puncture set, etc are


even deposed by PW16 Ram Achal Tiwari who has not

supported the prosecution on material facts. No motive was

imputed to this witness for falsely claiming his presence at the

spot as security guard on the day of incident. Nothing has

come on record to show if this witness was having any

strained relations / enmity with any of the accused persons to

make false deposition against them. This witness was also

not related to the family members of the deceased to support

them falsely. No evidence in defence was adduced by the

accused persons to show if this witness was never employed

as security guard at the farm house.

xvi) Suggestion put by Ld. defence counsels for A-5 to

A-7 to this witness in the cross examination that some robbers

entered inside the farm house and took all the guards on the

point of gun shows that the guards were posted at farm

house. Ld. defence counsels for A-5 to A-7 did not disclose

names of the guards allegedly taken hostage on the point of


gun. None of the accused persons in the cross examination

suggested to this witness if there was no security guard

employed at Jai Mata Di farm house. None of the accused

persons suggested name of any other security guard

appointed by any of the accused persons there to be present

at the spot at the time of incident.

xvii) PW16 Ram Achal Tiwari did not support the

prosecution on material aspects. Nevertheless, he disclosed

that he had kept two security guards for his security after he

received threats. He further deposed that he, Dilbagh and two

security officials used to live at Jai Mata Di farm house on

20.03.1999. However, this witness did not specify the names

of two security officials who were employed by him for his

private security. He did not explain as to who used to make

payment of salaries, etc to those two private guards. He also

did not clarify if any of those alleged security guards was on

duty at Jai Mata Di farm house on the day of incident and if


so, at which particular place they were on duty. It shows that

version given by PW16 Ram Achal Tiwari is apparently false

and no such private security guards was employed by him

and for that reason, he did not give names of these alleged

private security guards. He did not controvert the specific

assertion of PW15 Sunil Kumar to be present at the spot on

the day of occurrence.

xviii) Testimony of PW15 Sunil Kumar has been

corroborated in toto on this aspect by his employer PW30

Vikram Singh. In his deposition before the court, PW30

Vikram Singh also supported the prosecution and deposed

that he was running security agency in the name and style of

Wash Tower Security Detectives situated at A-1/19,Sector-5,

Rohini. He had employed security guards at Jai Mata Di farm

house w.e.f. 20/2/99 on the request of the A-4. An agreement

dt 1.3.99 was executed with the permission of the court. The

same was signed by A-4 and it was got notarized. Photocopy


of the said agreement is Ex PW30/2. The witness identified

signature of A-4 on the original at point “B”. This witness

further named Hari Chand, Het Ram, Nageshwar Singh,

Dhirender Singh and Sunil Singh to be the security guards

employed in the month of March-1999 from his security

agency at Jai Mata Di farm house. The witness also proved

the attendance sheet Ex PW30/1.

xix) In the cross examination on behalf of A-4, the

witness stated that he had informed the local police at

Mehrauli about the persons employed by him at the farm

house through his supervisor Dubey and the police had told

him that they would verify the names and addresses of those

persons. The witness explained that agreement did not

contain the names of the security guards as the guards kept

on changing. He further stated that he had received some

payment made by Pairokar of A-4. The witness denied the

suggestion that no security guard was provided as per


agreement as he had asked for advance money which was

not paid to him.

xx) In the cross examination on behalf of A-5 to A-7,

the witness stated that his security agency was registered

prior to the date of occurrence. The arrangement at Jai Mata

Di farm house was as per agreement with A-4. He used to

sign the register maintained at Jai Mata Di farm house after

checking the security arrangements. He had seen signature of

Dubey supervisor on those registers. The witness denied the

suggestion that agreement Ex PW30/2 was got executed

inside the jail and it was notarized there. The witness

explained that it was notarized on 1.3.99 in the lock-up, Tis

Hazari. This witness further stated that oral request was made

by A-4 to deploy security guards at Jai Mata Di farm house

after attempt of trespass by Sh M K Suba. The witness denied

the suggestion that he was only “contacted” by A-1 for

arrangement of security guards at Jai Mata Di farm house and


for that reasons, no payment was made to him in advance

and no guards were appointed by him at Jai Mata Di farm

house.

xxi) The entire testimony of this witness regarding

employment of security guards including PW15 Sunil and

PW17 Hari Chand inspires implicit confidence. It is not

disputed that this witness was not running any security

agency. Execution of agreement dt 1.3.99 to deploy security

guards at Jai Mata Di farm house has not been disputed. A-4

did not deny his signature on the agreement. Only plea of the

accused persons is that this agreement was not acted upon

for want of payment of advance money claimed by the

witness. This explanation of the accused persons does not

inspire confidence. No ulterior motive has been imputed to

this witness in the cross examination for faking employment of

security guards at Jai Mata Di farm house prior to the incident.

There is nothing on record to show if this agreement dt 1.3.99


was not acted upon. This witness has given names of the

security guards deputed at the farm house. He has also

proved attendance sheet showing their employment there. A-

4 did not explain as to when this witness had demanded

advance money. Since this witness was known to A-4 prior to

the occurrence and the agreement dt 1.3.99 was executed,

there was nothing for this witness to insist advance payment.

A-4 failed to explain as to who else were security guards at

Jai Mata Di farm house on the day of incident. Accused

persons have given different contradictory versions on this

aspect. In the statement recorded U/s.313 Cr.P.C, A-1 denied

to have any concern with the security guards at Jai Mata Di

farm house. However, suggestion has been put in the cross

examination to this witness that agreement Ex PW30/2 dt

1.3.99 was got executed by A-1. A-4 did not explain if A-1 was

instrumental in getting this agreement executed. So there is

nothing to disbelieve the testimony of this witness regarding


employment of security guards including PW15 Sunil and

PW17 Hari Chand on the relevant dates at Jai Mata Di farm

house.

xxii) Since this witness was deployed as a security

guard at the relevant time, he is the best person to disclose

the sequence of events that took place at Jai Mata Di farm

house on the day of incident. This witness was having no

ulterior motive to create false evidence for the family

members of the deceased with whom he had no nexus

whatsoever. This witness was having no prior ill-will against

A-5 to A-7 to falsely rope in them in this case. This witness

was not going to be benefited by deposing falsely against A-5

to A-7. There are no major discrepancies in the cross of this

witness to disbelieve him on the facts deposed by him.

xxiii) PW17 Hari Chand another security guard posted at

Jai Mata Di farm house has also supported the prosecution

qua involvement of A-5 to A-7 along with Rakesh (PO) and


has corroborated the version given by PW15 Sunil Kumar in

its entirety.

xxiv) In his deposition before the court, this witness also

claimed himself to be on duty at Jai Mata Di farm house on

the day of incident i.e. 20.03.99. This witness stated that he

was deputed on duty by Mr. Vikram at Jai Mata Di farm

house. He joined his duty w.e.f. 20.02.99. Mr. Tiwari used to

look after the farm house and he used to reside there. The

witness further stated that besides Tiwari, he had seen seven

persons residing there and they were Nani (A-5), Ramesh,

Santan and others whose name he did not remember. He

also knew A-1 who used to come at Jai Mata Di farm house.

A-2 and A-3 also used to come with A-1.

xxv) Regarding the incident, the witness stated that on

20.03.99, there were five security guards at Jai Mata Di farm

house. They were Sanjay, Het Ram Chaurasia, Dhirender,

Tuglesh Singh. They all used to reside in a room situated on


the right side of the main gate of the farm house. On

20.03.99, at about 8 AM, A-1 present in the court came at the

farm house and met A-5, A-6 and A-7 and stayed there for 15

minutes. Thereafter, A-1 left. At about 11.30 AM, A-2 and A-3

came to the farm house along with one pandit. First of all, A-2

and A-3 talked with A-5 to A-7 and then they told Mr. Tiwari to

get mandir cleaned and they were bringing pooja samagri.

Thereafter, both A-2 and A-3 left. At about 12 noon, madam

Kunjum came there in her maruti car of black colour. The car

had got punctured. Deceased Kunjum told Tiwari to bring a

mechanic. Accordingly, Tiwari brought a mechanic. Since

deceased was not having tools, the mechanic left to fetch

tools to repair the punctured tyre. He himself was present on

the gate at that time. Three more guards were inside at that

time. Deceased Kunjum told Tiwari that she was handing over

the keys and he should go inside the kothi. Tiwari proceeded

towards kothi followed by deceased Kunjum. A-5 to A-7 also


entered the kothi. It was about 12.50 noon at that time. After

five minutes, A-5 to A-7 met other five associates on the gate

of the farm house. Thereafter, they left saying “ghomne chalte

hei”. After they left, Mr. Tiwari came at the gate and told that

A-5 to A-7 had stabbed Kunjum with knife and they should

save her. Mr. Tiwari told them that he was going to make

telephone call to the police. Then they all the five security

guards went to the spot and saw the dead body of deceased

Kunjum. He informed Mr. Vikram about the murder of Kunjum

on mobile No.9811155439. He had given the call at about 1 or

1.15 PM. Police reached at the spot and made inquiries from

him.

xxvi) This witness was cross examined at length by the

Ld. defence counsels for the accused persons. In the cross

examination on behalf of A-1, the witness stated that he had

joined the duties on 20.02.99 at Jai Mata Di farm house. His

duty was for 12 hours. The witness denied the suggestion that


he was deposing falsely.

xxvii) In the cross examination on behalf of A-2 and A-3,

the witness was confronted with his statement made to the

police U/s. 161 Cr.P.C. Ex.PW17/DA where some facts

deposed in chief were not found mentioned therein. The

witness denied the suggestion that A-2 and A-3 were never

seen at the farm house by him.

xxviii) On behalf of A-4, the witness stated that he got

summons at his village to appear before the court. In

pursuance of the summons received, he came to the court

directly. The witness admitted that police officials of PS

Mehrauli had met him outside the court. The witness replied

that he had informed Mr. Vikram about the occurrence from a

shop at a distance of 25 / 30 paces from the gate of the farm

house. He further stated that he had told the police that he

could identify the five boys, Sonu (A-3), Dolly (A-2) and

Surender (A-1) if produced before him. The witness admitted


that he was not asked to identify the accused in any TIP

proceedings. He further clarified that he was having no

friendship or enmity with the accused persons including Dolly

(A-2) and Sonu (A-3). The witness denied the suggestion that

he was never present as security guard at the farm house or

that he was introduced as a false witness.

xxix) In the cross examination on behalf of A-5 to A-7,

the witness was confronted with his statement Ex.PW17/DA

made to the police on some facts which did not find mention

there. The witness stated that after making telephone call to

Vikram, he came back to the farm house where the police met

him. Vikram had also reached at Jai Mata Di farm house. The

witness denied the suggestion that he had never seen A-5 to

A-7 at the farm house or that false statement was made by

him at the instance of the police.

xxx) Scrutinizing the testimony of this witness reveals

that this witness stood the test of cross examination regarding


involvement of A-5 to A-7 in the incident. This witness was not

related to the complainant party to falsely support the case of

the prosecution. This witness was having no grudge or enmity

with these accused persons prior to the occurrence to falsely

rope them in this case. No ulterior motive was suggested to

this independent public witness who came all the way from

distant village to depose in this case to falsely implicate the

accused and assert his presence at the spot at the time of

occurrence.

xxxi) This witness categorically claimed himself to be on

duty as security guard at the farm house. PW15 Sunil Kumar

and PW30 Vikram, his colleague and employer respectively

affirmed this fact in their deposition before the court. This

witness is not imagined to fake his deployment as security

guard on the day of incident. No suggestion was put to this

witness in the cross examination if this witness was not

present at the spot at the time of occurrence or that he was


available at some other specific place. This witness gave

graphic detail as to how and under what circumstances the

incident took place. All this revelation is not possible, had this

witness not worked there as security guard.

xxxii) Testimonies of PW15 Sunil Kumar and that of

PW17 Hari Chand establish beyond doubt that A-5 to A-7

along with their associates used to reside in the farm house

prior to the incident. Both PW15 Sunil Kumar and PW17 Hari

Chand have asserted their presence on the day of incident as

well as prior to the occurrence at Jai Mata Di farm house.

Both PW15 Sunil Kumar and PW17 Hari Chand gave detailed

account about these accused persons to be staying at the

farm house. They also testified about their meetings with A-1.

There is nothing to disbelieve the positive assertion of both

these witnesses on this aspect. These accused persons

themselves did not disclose as to where else they used to

reside prior to the incident or on the day of incident. They did


not lead any evidence in defence to claim themselves to be

residing at a particular place soon before the incident. They

did not explain as to what job or business was being carried

out by them. They did not disclose their place of work. They

did not examine any family members or anyone from their

place of job / work to negative the assertion of these

independent public witnesses regarding their staying at Jai

Mata Di farm house prior to the incident. Both these witnesses

were not having any familiarity with these accused persons.

They were not expected to know their names on the day of

incident, had these witnesses been not staying at the farm

house.

xxxiii) PW30 Vikram Singh has also supplemented the

statement of security guards regarding residence of A-5 to A-

7 at the farm house prior to the day of incident. In his

statement before the court, PW30 Vikram deposed that he

used to go to check his security guards at Jai Mata Di farm


house. During his visits there, he used to see those boys

namely Rakesh (PO), Nani (A-5), Guddu etc. This witness

further identified A-5 to A-7 present before the court to be the

persons who were seen by him at Jai Mata Di farm house

during his visits there. This witness in the cross examination

fairly admitted that he had not stated to the police in his

statement Ex.PW30/DA and Ex.PW30/DB if he had seen all

these accused persons at the farm house. This witness

revealed that he had tried to meet A-4 to inform about

unauthorized persons like Nani (A-5), etc staying at Jai Mata

Di farm house.

xxxiv) There is nothing to discredit the statement of this

independent witness on this aspect.

xxxv) PW28 Pawan Budhiraja also established presence

of A-5 to A-7, etc at Jai Mata Di farm house prior to the

incident. In his deposition before the court, he also stated that

after the arrest of A-4, he had visited Jai Mata Di farm house


once or twice and had found A-5 to A-7 present there. This

witness identified A-5 to A-7 to be the persons seen by him at

the farm house during his visits. This close relation of the

deceased is not expected to let real culprits to go scot-free

and to falsely rope in innocent accused i.e. A-5 to A-7 by

claiming their presence at the farm house prior to the incident.

xxxvi) Testimonies of all the above witnesses positively

prove that A-5 to A-7 along with accused Rakesh (since PO)

and their associates used to reside at Jai Mata Di farm house

prior to the incident. They all failed to explain as to who had

deployed them there or who used to pay them their salaries.

They also failed to explain as to what job was being

performed by them while staying at Jai Mata Di farm house.

xxxvii) Both these prosecution witnesses i.e. PW15 Sunil

Kumar and PW17 Hari Chand have categorically deposed

that after deceased Kunjum along with caretaker PW16 Ram

Achal Tiwari went inside the kothi where the occurrence took


place, all these accused persons along with their associate

Rakesh (since PO) entered inside the kothi. They came out of

the kothi after sometime and thereafter they along with their

associates went away for the market. Both these witnesses

have categorically stated that thereafter PW16 Ram Achal

Tiwari came to them and told that these accused persons had

stabbed the deceased Kunjum and had run away. Mr. Tiwari

told them to take care of Kunjum as he was going to inform

the police.

xxxviii) There are no material discrepancies in the cross

examination of both these witnesses to disbelieve them. All

these accused persons failed to explain the purpose of their

stay at Jai Mata Di farm house on the day of incident. They

have further failed to explain their purpose to enter inside the

kothi where deceased Kunjum had gone along with PW16

Ram Achal Tiwari.

xxxix) PW16 Ram Achal Tiwari though has not supported


the prosecution on some facts, has nevertheless, proved visit

of deceased Kunjum at the farm house on 20.03.99. He in his

deposition as PW16 admitted statement Ex.PW6/1 bearing

his signatures to have been made to the police on 20.03.99.

In the cross examination by Ld. Special PP for the State, he

admitted that he had informed the police about the murder of

deceased Kunjum. First, he tried to inform the police by

dialing 100 number from a shop opposite to his farm house.

When none responded to it, then he went to Chattarpur

Mandir and informed the police officials posted at Chattarpur

Mandir. It was about 1 or 1.15 PM. The witness further

admitted that when he reached at the farm house, at about 12

PM, deceased Kunjum had already reached there with her car

No. DL-3CB-9399. He further admitted that Kunjum had told

him that there was puncture in her car and he should arrange

for a mechanic and thereafter, he brought some mechanic. He

further admitted that the mechanic wanted to bring tools. This


witness further admitted in the cross examination that after he

entered the kothi, he saw Kunjum in murdered condition and

found her dead. He further stated that when Kunjum came at

the farm house, there was lock on the kothi. The keys of the

kothi were with Kunjum and she opened the lock and went

inside.

xxxx) This testimony of this otherwise hostile witness

lends credence to the testimony of PW15 Sunil Kumar and

PW17 Hari Chand regarding presence of deceased Kunjum

inside the kothi after the mechanic left to bring tools to repair

the puncture of the tyre of the car. Soon thereafter, PW15

Sunil Kumar and PW17 Hari Chand along with their

colleagues came to know about the murder of the deceased.

During this period, none else except PW16 Ram Achal Tiwari,

A-5 to A-7 along with Rakesh are stated to be inside the kothi

at the time of commission of the offence. PW16 Ram Achal

Tiwari who could be a suspect was not found involved in the


commission of the offence as the present case was registered

on his statement Ex.PW6/1. He was the person who had gone

to inform the police at the earliest. Leaving PW16 Ram Achal

Tiwari, it stands established that at the time of incident, no

else except A-5 to A-7 along with Rakesh (since PO) were

present inside the kothi where the incident took place. Both

these independent witnesses specifically testified that they

saw A-5 to A-7 entering the kothi before the incident and

coming out of kothi soon after the incident.

xxxxi) It has further come on record that soon after the

incident of murder, all these accused persons fled away on

the pretext for going to market and never returned thereafter

to stay there as usual. This conduct of these accused persons

is relevant to infer their involvement in the commission of the

offence. All these accused persons were last seen with the

deceased inside the kothi where the gruesome murder took

place and is a vital piece of incriminating circumstance


appearing against them. Number of security guards were

posted at the gate of farm house. There was no question of

any other person to have entered inside the kothi without

seeking clearance from the security guards to enter inside the

kothi where the deceased Kunjum had gone. PW15 Sunil

Kumar and PW17 Hari Chand have categorically stated that

only those persons were allowed to enter inside the farm

house who were identified at the gate by PW16 Ram Achal

Tiwari. So, there was no question of any other person except

these accused persons to have entered inside the kothi.

xxxxii) Fake attempt has been made by these accused

persons to show that some unknown persons with a motive to

commit robbery had entered inside the kothi. This suggestion

was put to PW15 Sunil Kumar where it was suggested that

when Ram Achal Tiwari had gone to call the mechanic at

about 12 noon, some persons got entry inside the farm house

saying that they wanted to meet Ram Achal Tiwari and


Dilbagh or that after entering, one of them took all the guards

on the point of gun and those remaining unknown persons

went inside the kothi to commit robbery or that at that time,

Kunjum was inside the kothi for taking rest or that when she

tried to intervene and raised alarm, they killed her and ran

away.

xxxxiii) This defence has not at all been substantiated by

the accused persons. This defence also does not appeal to

mind. In the presence of so many security guards at the gate,

no robber could have dared to enter inside the kothi during

day time. There is nothing on record to show if any robber

was aware about the visit of Kunjum. There is nothing on

record to show if any valuable articles were lying inside the

kothi to be robbed by the alleged robbers. There is nothing

on record to show if any particular article was robbed by any

robber. None of the accused persons in their statements and

even PW16 Ram Achal Tiwari has not disclosed if any


material article was robbed from the kothi. Moreover, simply

for robbery purpose, the alleged robbers who had allegedly

taken all the guards on the point of gun are not expected to be

challenged by deceased alone inside the kothi. The robbers

having only object to commit robbery at the farm house are

not expected to kill an innocent person. The theory put by Ld.

defence counsel in the cross examination of the witness holds

no water.

xxxxiv) No such suggestion was put by the Ld. defence

counsel to PW17 Hari Chand in the cross examination. Even

in their statements recorded U/s. 313 Cr.P.C., the accused

persons did not stick to this theory of robbery by some

unknown robbers. The evidence of both these prosecution

witnesses PW15 Sunil and PW17 Hari whose presence at the

spot being security guards was quite natural and who had no

ulterior motive at all being neutral witnesses, inspires

confidence and proves beyond doubt that A-5 to A-7 along


with Rakesh were last seen with the deceased inside the kothi

where the incident took place.

xxxxv) The accused persons did not lead any evidence to

establish their plea of alibi. They did not prove their presence

at any other place at the time of incident.

Abscondence (A-5 to A-7)

51. The next reliance of prosecution to connect A-5 to

A-7 is circumstance of abscondence.

i) The circumstance of abscondence soon after the

occurrence is also relevant to point an accusing finger against

these accused persons. After the commission of the offence,

all these accused persons along with their associates went

away on the pretext to go to market. Security guards did not

stop them at that time as they were not aware about the

murder of the deceased Kunjum at that time. security guards

came to know regarding the incident only when PW16 Ram

Achal Tiwari informed them. When the security guards


reached inside the kothi after PW16 Ram Achal Tiwari went to

inform the police, they came to know deceased Kunjum to

have been stabbed. These accused persons who were

staying at the farm house soon prior to the occurrence did not

again come to the farm house to stay. They rather remained

absconded and could be apprehended subsequently on

different dates after extensive search for them. Accused

persons failed to establish as to where they all stayed soon

prior to the incident, on the day of incident and prior to their

arrest. Some of the accused persons could not be arrested till

date. One associate of the accused Rakesh is already PO in

this case.

ii) All these accused persons were not known to the

prosecution witnesses and were having no acquaintance with

them. Their names find mention in the statement Ex.PW6/1

on the basis of which the present case was registered soon

after the commission of the offence. There is no inordinate


delay in getting the present case registered. These accused

persons after the commission of the offence never returned to

farm house. Rather, they were apprehended on different

dates at different places. A-5 to A-7 failed to explain as to

where they all stayed after the occurrence and prior to their

respective apprehension in this case. A-6 was arrested by the

police of PS Sangrampur, UP on 12.04.99 in crime No.58/99

U/s. 364 IPC, PS Sangrampur, UP. PW25 V.N. Dixit SI at PS

Sagrampur testified that A-6 was arrested by him on 12.04.99.

At that time, PW25 V.N. Dixit was not aware about

involvement of A-6 in the incident. Only on interrogation and

in his disclosure statement made before the police, PW25

V.N. Dixit came to know about involvement of A-6 in the

commission of the offence. He sent information regarding

disclosure made by A-6 to Delhi Police. This witness proved

the copy of G.D. No.20 dated 12.04.99 Ex.PW25/A to have

been recorded by him regarding the arrest of A-6.


iii) This police official of UP police has no axe to grind

to fabricate arrest and disclosure made by him in the said

case. Only after coming to know about arrest of A-6 in the

said case, IO of this case got production warrant issued for

appearance of this accused at Delhi and was subsequently

arrested in this case.

iv) A-5 could be arrested only on 09.05.99. A-7 was

arrested in this case after his arrest and production before the

court of Sh. R.P. Singh, Ld. ASJ at Tis Hazari, Delhi on

11.05.99.

v) It reveals that all these accused persons remained

absconded for sufficient long time since the date of

commission of the offence. Circumstance of abscondence is

an incriminating piece of evidence against A-5 to A-7 to infer

their involvement in this case.

Recovery of golden chain

i) Next circumstance relied upon by the prosecution to


connect A-5 to A-7 with the commission of the offence is

recovery of golden chain belonging to the deceased at the

instance of A-5. Case of the prosecution is that A-5 to A-7

along with their associate Rakesh removed golden chain

which deceased Kunjum was wearing at the time of

occurrence. This chain was got recovered by A-5 during

investigation. Ld. counsel for A-5 has denied the

circumstance and has argued that there was no specific mark

of identification on the gold chain. No proper TIP of the gold

chain was got conducted. The golden chain has been planted

upon A-5.

ii) It has come on record that at the time of incident,

deceased Kunjum was wearing golden chain Ex.P2. PW27

Rani Budhiraja, mother of the deceased, testified in her

deposition before the court that when her daughter Kunjum

went to Jai Mata Di farm house on 20.03.99, she was wearing

golden chain and diamond tops. She further testified that


when she reached at the spot and saw the dead body of her

daughter at Jai Mata Di farm house, that golden chain was not

there on her neck.

iii) This witness having no prior enmity or acquaintance

with A-5 is not expected to fake the removal of golden chain

from the neck of her deceased daughter on the day of

incident. She had not named any accused to have removed

the golden chain on the neck of the deceased. This gold chain

was recovered during investigation and was identified by the

witness during TIP proceedings. Again PW27 Rani Budhiraja

deposed that she identified the golden chain which her

daughter was wearing on the day of incident before the Ld.

MM on 29.05.99. The witness identified golden chain Ex.P2

during her deposition before the court also.

iv) In the cross examination, the witness stated that

she had told in her statement to the police that Kunjum was

wearing a golden chain but on the dead body the chain was


not there. She fairly admitted that she had not given the

weight and other detail of the golden chain. The witness

volunteered to add that she had told them that it was a long

chain. The chain was purchased by deceased Kunjum with

her some months prior to the occurrence. Chain was mixed

with other 6 / 7 chains before the Ld. M.M. and she identified

the chain of Kunjum.

v) There is nothing to disbelieve the positive assertion

of this witness regarding identification of the golden chain

Ex.P2. The witness being mother of the deceased was the

proper person to identify the golden chain which the deceased

used to wear as she had the opportunity to see the deceased

wearing the golden chain.

vi) PW10 Sh. Rajnish Kumar Gupta, Ld. M.M. proved

TIP proceedings regarding the golden chain conducted by

him. He deposed in his testimony as PW10 that on 17.05.99

application Ex.PW10/A for holding TIP of the case property


was marked to him by Sh. V.K. Khanna. On 29.05.99, he

conducted TIP proceedings pertaining to the golden chain

produced by the IO in a sealed cover. IO also produced four

other chains of golden colour. The chains produced by the IO

were of same colour and were of similar shape as the case

property. The case property was mixed with the aforesaid four

chains and the witness Rani Budhiraja was called inside the

chamber to identify the case property. The witness Rani

Budhiraja correctly identified the case property. The detailed

TIP proceedings conducted by him are Ex.PW10/2. Certificate

regarding the correctness of proceedings given by him is

Ex.PW10/2A.

vii) Cross examination of this witness on behalf of A-5

to A-7 does not show any irregularity in the conduct of TIP

proceedings by the Ld. MM.

viii) Material testimony regarding recovery of golden

chain Ex.P2 at the instance of A-5 is that of PW35 SI J.S.


Joon. In his statement before the court, PW35 SI J.S. Joon

deposed that A-5 made disclosure statement on 13.05.99 and

disclosed to get recover the chain of the deceased which was

taken by him after the murder of the deceased from his house

at P-1/130, Mangolpuri, New Delhi. The disclosure statement

made by A-5 is Ex.PW22/9. A-5 lead the police party to his

house at Mangolpuri and took out the chain from the almirah

lying on the first floor of the house and handed over the same

to him. Golden chain Ex.P2 was the same which was got

recovered by A-5 from his house. Recovery memo of chain

was prepared which is Ex.PW22/10. The chain was kept in a

pulanda and sealed at the spot. The case property was

deposited in the malkhana.

ix) In the cross examination, the witness stated that he

had taken five days police remand of A-5. The witness

admitted that he had taken A-5 to Saidpur to search other

accused Babu. The witness further admitted that no


incriminating article was recovered from Saidpur. The witness

further admitted that A-5 had disclosed to get recover the

knife but no knife was recovered from A-5. The witness further

stated that house of A-5 was located in a residential area.

Family members of A-5 were present at his house. They were

his mother and sister. He had requested neighbourers and

family members to join the investigation, however, none had

agreed to join the investigation. The almirah was not locked

when it was opened from where the golden chain was

recovered. He had not recorded statement of the mother and

sister of A-5. He had not asked Rani Budhiraja the size,

weight, design of the golden chain. The witness denied the

suggestion that golden chain was planted upon the accused

at the instance of relative of Kunjum.

x) Overall testimony of this witness reveals that no

material discrepancies have been elicited on this aspect in the

cross examination of this witness. No ulterior motive has been


imputed to this police witness for falsely planting golden chain

Ex.P2 on the accused. This witness categorically stated that

A-5 got recovered the golden chain from the almirah lying

inside his house and at that time, his family members i.e. his

mother and sisters were present. A-5 did not bother to

examine his family members or persons from the locality /

neighbourhood to controvert the positive testimony of this

witness if he had not led the police party to his house and no

such golden chain was got recovered by him. This accused

was arrested on 09.05.99. In the disclosure statement

Ex.PW22/1 made by him at that time, he did not disclose to

get recover any golden chain. Only when he was interrogated

on 13.05.99, A-5 opted to make another disclosure statement

to get recover the golden chain in this case. Had the intention

of the IO been to plant the golden chain, he could have done

it soon after his arrest on 09.05.99.

xi) Statement of PW35 SI J.S. Joon has been


corroborated on material facts by another witness to recovery

of golden chain i.e. PW22 HC Satish Chand. In his statement

before the court, he also proved the disclosure statement

Ex.PW22/9 made by A-5 on 13.05.99. The disclosure

statement was read over to A-5 and he put his signatures

over the same after hearing it. Thereafter, A-5 took the police

team to his house No.P1/131, Mangolpuri, New Delhi and got

recovered the chain from the almirah lying on the first floor. IO

prepared the necessary seizure memo Ex.PW22/10. The

witness identified golden chain Ex.P2 to be the same which

was got recovered by A-5 from his house.

xii) In the cross examination on this aspect, the witness

stated that the accused was interrogated for about two or

three days. He could not tell the exact time of recovery of

chain at the house of the accused. The accused was

interrogated in the PS after his remand. There were

residential houses near the house of the accused. Parents of


the accused were also present inside the house. The witness

denied the suggestion that no such chain was got recovered

by the accused. The witness further stated that at the time of

recovery of the chain, Ct. Bijender was also present there.

xiii) Entire testimony of this witness also does not show

inherent defects to disbelieve recovery of golden chain at the

instance of A-5. Again, this police witness was having no prior

enmity to falsely create evidence of recovery of golden chain

at the instance of A-5.

xiv) A-5 did not examine any witness from his family to

deny that chain Ex.P2 was not got recovered by him from his

house. There is nothing to disbelieve the testimony of the

police witnesses who are not expected to plant the golden

chain from their own pocket.

xv) Recovery of golden chain at the instance of A-5 is

an incriminating piece of circumstance to connect him with the

commission of the offence. A-5 failed to explain as to how and


under what circumstances chain Ex.P2 came into his

possession. A-5 did not claim ownership of gold chain. There

is no denial that this chain Ex.P2 did not belong to the

deceased. There is nothing on record to suggest that

deceased Kunjum was not wearing this golden chain at the

time of incident.

xvi) PW16 Ram Achal Tiwari who had admittedly seen

the deceased Kunjum at the farm house prior to the incident

was not confronted in the cross examination by the Ld.

defence counsel for A-5 if deceased Kunjum was not wearing

golden chain Ex.P2 at the time of her arrival at the farm

house. This witness otherwise did not support the prosecution

on material facts.

Involvement of A-1, A-2, A-3 and A-4

i) Case of the prosecution is that A-1 to A-4 conspired

to eliminate deceased Kunjum through the agency of A-5 to

A-7, etc.


ii) No direct evidence has been relied upon to prove

conspiracy. Again, the prosecution has relied upon following

incriminating circumstances to show hatching of conspiracy

by A-1 to A-4. These circumstances are being discussed in

detail.

1) Abscondence of A-1

i) Main emphasis of the prosecution to establish the

complicity of A-1 in the commission of offence is the

circumstance of abscondence. Case of the prosecution is that

soon after the incident, A-1 absconded to Ahmedabad and

stayed under a fictitious name at a guest house there. A-1 has

denied this allegation and has argued that he was taken to

Ahmedabad by Delhi Police after he was lifted from Delhi and

false evidence was created to involve him in this case.

ii) On scrutinizing the evidence adduced on record by

the prosecution, it stands established that A-1 stayed under

the assumed name at guest house at Ahmedabad. Material


testimony on this aspect is that of PW5 Amara Bhai K. Patel,

Manager, Kapadia Guest House located near Badilal Hotel in

Ahmedabad. In his statement before the court appearing as

PW5, Amara Bhai K. Patel specifically deposed that he was

working as manager at Kapadia Guest House for the last 25

years. On 22.03.99, he was on duty as Manager at the guest

house from 7 PM (evening) till 7 AM (next morning). On that

day, one person disclosing his name as Raj Kumar Bhatia

resident of 37, Travels Nagar, Indore made entry at serial

No.1329 in the visitors' register at about 7.30 PM. This entry

was made by him in the register regarding the stay of A-1

under the name of Raj Kumar Bhatia. The said guest signed

as Raj Kumar against that entry in his presence. The witness

proved the photocopy of the said entry which is Ex.PW5/A.

The said guest Raj Kumar stayed at room No.50 at the guest

house. Further deposition of the witness is that on the

intervening night of 22/23.03.99, police of crime branch,


Ahmedabad came to Kapadia Guest House and inquired from

him as to who was staying in room No.50. He took the police

to that room and got the room opened. Police made inquiries

from the guest of that room and later on arrested him. The

witness pointed towards A-1 present before the court today

by raising his finger and stated that he was the person who

had stayed at his guest house in room No.50 under the name

of Raj Kumar and was arrested by the police of Ahmedabad.

The witness further stated that Delhi Police brought A-1 to

their guest house at about 2.30 PM on 23.03.99. The entry in

the register was seen by Ahmedabad police and they had

written checked out.

iii) In the cross examination, this witness stated that

Delhi Police had met him in the afternoon of 23.03.99 and had

recorded his statement. Entries in the register on 18.03.99 as

well as on 21.03.99 and also on other dates in the register

brought by him were in his handwriting. The witness fairly


admitted that he had not seen A-1 prior to 22.03.99 at his

Guest House. The witness denied the suggestion that A-1

never stayed in his guest house or that signatures “Raj

Kumar” in the entry Ex.PW5/A were not that of A-1.

iv) The testimony of this witness inspires implicit

confidence. PW5 Amara Bhai K. Patel is an independent

public witness. He has no motive to falsely rope-in A-1 or to

support the prosecution. PW5 Amara Bhai K. Patel is not

related to the family members of the deceased to falsely

create evidence for the prosecution. He was not enimical to

A-1 to depose against him. Presence of this witness at

Kapadia Guest House being Manager is quite natural and

probable. This witness in the course of his duties in routine

had made entries in the visitors' register being on duty at the

time of arrival of A-1 at the Guest House. This witness was

having no acquaintance with A-1 and has fairly, without any

suspicion, recorded his name as “Raj Kumar” in the visitors


register as disclosed by him. Only on the arrival of the police

from crime branch of Ahmedabad, this witness came to know

the real / actual name of the guest staying under the assumed

name of “Raj Kumar” as Surender Mishra. A-1 was arrested

from the guest house and was taken by the crime branch of

Ahmedabad Police. This witness proved the entry Ex.PW5/A

made by him in the visitors' register in the ordinary course of

business. Presence of this witness as a Manager at Kapadia

Guest House has not been controverted. This witness

travelled long from Ahmedabad to make his deposition before

this court in this case in which he was not at all interested.

v) No material discrepancies, whatsoever, have been

elicited in the cross examination of this witness to disbelieve

his version regarding stay of A-1 at room No.50 at Kapadia

Guest House at the relevant time. A-1 did not dare to examine

any expert witness in his defence to prove that signatures on

Ex.PW5/1 as “Raj Kumar” were not his. A-1 did not examine


any witness in defence to show as to when and from where

he was apprehended. No evidence was adduced by A-1 to

show if he was apprehended from Delhi and was allegedly

taken by Delhi Police to Ahmedabad. There was no fun for

Delhi Police to first apprehend A-1 from Delhi and

subsequently, take him to Kapadia Guest House without any

purpose. In that eventuality, PW5 Amara Bhai K. Patel

having no concern with Delhi Police or in this case was not at

all expected to identify A-1 to be the person who had stayed

at his Guest House in room No.50. A-1 failed to explain the

exact place where he stayed soon after the incident and prior

to his apprehension in this case.

vi) Prosecution has established that on 19.03.99, A-1

had a meeting with A-4 at Tihar, Delhi. The occurrence took

place on 20.03.99. A-1 was arrested from Kapadia Guest

House on the intervening night of 22/23.03.99. It was within

the special knowledge of A-1 as to where he stayed during


this period if he was not arrested from Kapadia Guest House.

A-1 has failed to divulge this information and thus, his version

can't be considered.

vii) Material facts proved on record by this witness have

remained unchallenged in the cross examination. There is

nothing to discard the version given by PW5 Amara Bhai K.

Patel which is supported by documentary proof in the visitors'

register.

viii) PW12 Tarun Kumar Amritlal from crime branch,

Ahmedabad City has corroborated the statement of PW5

Amara Bhai K. Patel and has proved the apprehension of A-1

from room No.50, Kapadia Guest House on the intervening

night of 22/23.03.99. In his deposition before the court, PW12

Tarun Kumar Amrit Lal, Insp crime branch, Ahmedabad also

testified that on 22.3.99 they got information that nephew of

A-4 namely A-1 was staying at Kapadia Guest House at room

no. 50 and he had committed murder of Kunjum. On that


information, he reached at the spot at about 1 or 2 am. After

contacting the manager, they went in room no. 50 of the guest

house. Room was knocked and was opened by A-1. On

interrogation A-1 disclosed his name as “Surender Mishra”

and in the register of the guest house, he had mentioned his

name as “Rajkumar Bhatia”. A-1 present before the court was

apprehended by him. He called two panchnama witnesses

namely Vinod and Raju and in their presence, room of A-1

was searched and they found visiting cards of lawyers and

Rs.471.50 besides railway tickets, bills and receipts of the

STD calls and one suite case of black colour and two pair of

clothes. All these articles were seized by preparing their

panchnamas. A-1 was interrogated and his disclosure

statement Ex.PW12/A was recorded. The witness further

stated that during the disclosure statement, he came to know

that A-1 was having mobile No.9810114857. Thereafter, A-1

was produced before the courts at Ahmedabad. On 23.03.99


Delhi police came and recorded his statement.

ix) In the cross examination on behalf of the accused

persons, this witness deposed that in the remand papers,

name of A-1 was mentioned as accused. The articles seized

from A-1 were produced before the court. The witness

asserted that Raj Kumar Bhatia and Surender Mishra (A-1)

were the same person. The witness denied the suggestion

that one Raj Kumar Bhatia was staying at the guest house

and accused was falsely implicated in this case or that

disclosure statement Ex.PW12/A was fabricated.

x) The entire testimony of this witness fully proves the

version given by the prosecution regarding apprehension of

A-1 on the intervening night of 22/23.03.99 from room No.50,

Kapadia Guest House. This witness from Ahmedabad police

having no concern with the case in question at Delhi is not

expected to raid room No.50, Kapadia Guest House and to

falsely show arrest of A-1 from there. A-1 did not assert his


presence at the relevant time at any other specific place at

Delhi or somewhere else. The very fact that this accused was

produced before the courts at Ahmedabad on the next day at

about 11 AM fully lends credence to the version given by this

witness. No suggestion was put to this witness in the cross

examination if the articles seized did not belong to the

accused. Rather, suggestion was put to this witness in the

cross examination that they were trying to search Abu Salem

and Dawood Ibrahim and wrongly arrested accused present in

the court. This suggestion apparently supports the case of the

prosecution whereby A-1 was arrested from room No.50

where he was staying under a fictitious name.

xi) PW36 Inspector Jagdish Meena also supplemented

the statements of both thees witnesses on this aspect and

deposed in his examination that on the morning of 23.03.99,

he got the information from Ahmedabad regarding

apprehension of A-1 by Crime team. He along with SI Vijay


Kumar reached at Ahmedabad. There, he came to know that

A-1 had stayed at Kapadia Guest House under a fictitious

name of “Raj Kumar Bhatia”. He interrogated A-1 and

collected the original disclosure statement made by A-1 from

Ahmedabad police. He also got remand of A-1 from

Ahmedabad courts. It was four days police custody remand.

He recorded statement of Inspector Tarun Kumar Amritlal and

seized the photocopies of the register of the guest house vide

seizure memo Ex.PW36/A. He came back to Delhi after the

arrest of the accused from Ahmedabad and reached Delhi on

25.03.99.

xii) In the cross examination, the witness denied the

suggestion that A-1 was in his custody prior to 23.03.99 at

Delhi or that he had taken A-1 to Ahmedabad. The witness

stated that he had interrogated the manager of Kapadia Guest

House. The witness fairly admitted that no incriminating article

was recovered from A-1 or at his instance.


xiii) The testimony of this witness is in consonance with

the testimony of PW5 Amara Bhai K. Patel and PW12 Tarun

Kumar Amritlal. Again in the cross examination of this

witness, A-1 did not assert as to since when he was in the

custody of this witness prior to his arrest. A-1 did not explain

as to how and under what circumstances he was taken from

Delhi to Ahmedabad as alleged by him. He also failed to

explain how and under what circumstances he was produced

before the courts at Ahmedabad. All these court proceedings /

documents can't be imagined to be fabricated by the police of

Ahmedabad and Delhi.

xiv) The statements of above witnesses establish

beyond doubt that A-1 was apprehended from room No.50,

Kapadia Guest House on the intervening night of 22/23.03.99.

It has further been proved that A-1 had attempted to conceal

himself much away from Delhi after the incident under a fake

name as “Raj Kumar Bhatia”. A-1 failed to lead any evidence


in defence to controvert these specific pieces of evidence

appearing against him and to prove the exact date or place of

his alleged arrest.

xv) The circumstance of abscondence from Delhi soon

after the occurrence and to stay under bogus name at a hotel

at Ahmedabad to conceal his identity is definitely a serious

incriminating circumstance pointing an accusing finger against

A-1 showing his complicity in the commission of the offence.

A-1 failed to explain the purpose of his visit to Ahmedabad.

He also failed to state compelling circumstances forcing him

to stay at a remote place away from Delhi under bogus name.

A-1 who used to remain constantly in touch with A-4 prior to

the incident is not expected to run to such a long distance for

no obvious purpose. He did not deem it fit to inform A-4 for his

alleged visit to Ahmedabad though he visited him in jail on

19.03.99. It shows his guilty mind soon after the incident

whereby he attempted to flee-away from the scene of


incident.

2. A-1 to A-3 regular visitor to A-4

i) Next circumstance to infer conspiracy among

accused persons is regular visits by A-1 to A-3 to A-4 in jail

and outside.

ii) Case of the prosecution is that A-1 to A-3 were

regular visitors to Tihar Jail and used to meet A-4 lodged in

jail No.5. It is during these meetings, that all these accused

persons entered into criminal conspiracy to eliminate

deceased Kunjum. A-4 has denied in his statement recorded

U/s. 313 Cr.P.C. regarding his meetings with A-1 to A-3 at

Tihar Jail. His only plea is that family members of deceased

Kunjum only used to meet him in Jail. He did not meet any

other person there. Contention of A-2 and A-3 is that they

were pairokars of the cases against A- 4 and used to meet

him at Tihar Jail to consult about the cases pending against

him. A-1 has denied to have met A- 4 in Jail.


iii) On fair appraisal of the evidence adduced on this

aspect, it stands proved beyond doubt that A-1 to A-3 were

regular visitors to Tihar Jail and used to often meet A-4 there.

There is no substance in the statement of A-4 that A-1 and A-

3 never met him at Tihar Jail. A-4 has even denied to have

any acquaintance with A-1. He has gone to the extent of

saying that he did not know if A-1 was his nephew. A-4 further

stated that A-1 to A-3 had no authority to enter inside the farm

house or that they were not concerned with the activities at

farm house or with his cases.

iv) Prosecution has filed documentary evidence on this

aspect and has produced a very material prosecution witness

PW4 Mahender Prashad, Assistant Superintendent, Tihar Jail.

In his deposition before the court, he deposed that in March,

1999, he was posted as Assistant Superintendent in Jail No.5,

Tihar Jail where A-4 was lodged. He was Incharge of

managing the visitors' meetings with the under-trials lodged in


Jail No.5 during those days. Three persons / visitors were

allowed to meet the under-trials or the convicts in the jail at

one time. One visitors' register was maintained. This witness

further stated that A-4 was lodged in Jail No.5 during those

days and in the month of March, 1999, on 05.03.99,

09.03.99, 12.03.99, 16.03.99 and 19.03.99, visitors had met

him and entries in that regard were made in the register. This

witness further elaborated that on 05.03.99, A-1, A-2 and PW

Pawan Budhiraja had met A-4. On 09.03.99, A-1 and A-2 had

met A-4. On 12.03.99, A-1, A-2 and A-3 had met A-4. On

16.03.99, A-2, A-3 and Pawan Budhiraja had met A-4 and on

19.03.99, A-1, A-2 and Pawan Budhiraja had met A-4 in Jail.

This witness identified A-2 and A-3 to be the visitors who used

to come to visit A-4 in Jail.

v) This witness was not cross examined by A-1. He

did not deny his visits to Tihar Jail on these dates. He did not

deny if he had not met A-4 on these dates at Tihar Jail. He did


not deny that he had not put any signatures on the

photocopies of the entries in the register which are Ex.PW4/1

to Ex.PW4/5.

vi) In the cross examination on behalf of A-4, again no

suggestion was put to this witness if all these accused

persons had not met him on all these different dates. No

suggestion was put to this witness if the record Ex.PW4/1 to

Ex.PW4/5 was fabricated.

vii) This official witness having documentary proof

regarding meetings of the visitors to A-4 has no axe to grind

to make false statement against record. A-2 and A-3 also did

not cross examine this witness to deny if they had not met A-4

on these dates. Unrebutted testimony of this witness proves

beyond doubt that A-1 to A-3 were regular visitors to A-4 and

there is no substance in the contention of A-4 made in the

statement recorded U/s. 313 Cr.P.C. that he did not know A-1

to be his nephew or that A-1 to A-3 had never met him in jail.


Apparently, A-4 is suppressing this material fact for the

reasons known to him.

viii) PW1 Ms. Meena Budhiraja, Assistant Ahlmad in the

court of Ld. C.M.M. Tis Hazari Courts has also proved that A-

1 to A-3 also used to meet A-4 during his appearance in the

court of Ld. C.M.M. In her deposition before the court, she

proved on record various applications Ex.PW1/1 to Ex.PW1/5

moved in the court of Sh. R.K. Gauba, the then Ld. C.M.M. by

applicants including A-1 to A-3 for having meeting with A-4.

She also proved on record various other applications moved

before the court of Sh. J.R. Aryan, the then Ld. A.C.M.M.

which are Ex.PW1/6 to Ex.PW1/8 moved for this purpose. In

her testimony, she deposed that on 16.01.99, A-1, A-3 and

Pawan Budhiraja had moved an application for meeting A-4.

Application moved on 16.02.99 was from A-1, A-3 and Pawan

Budhiraja. Application dated 15.03.99 was moved by A-1, A-2

and A-3. Application dated 16.02.99 was moved by A-3 and


application dated 08.04.99 was moved by Amrit Lal Budhiraja.

ix) This witness was not cross examined by the Ld.

defence counsel for the accused persons except A-4. A-4 did

not deny if these applications were not moved by the persons

mentioned therein or that he had no meetings or conversation

with the persons mentioned therein at the time of his

appearance before the court of Ld. C.M.M. / A.C.M.M. on

these dates.

x) PW23 HC Ramesh Kumar also proved various

applications Ex.PW1/1 to Ex.PW1/7, Ex.PW23/1 to

Ex.PW23/34 showing visits of accused persons to A-4. Again,

this witness was not cross examined by any of the accused

persons.

xi) PW28 Pawan Budhiraja has also in his statement

before the court talked about visits of A-1 to A-3 at Tihar Jail.

Rather, he has deposed that A-1 to A-3 used to put their

names first in the visitors register to meet A-4 to deprive him


his meetings with A-4. He further testified that on one

occasion, he had informed A-4 also and had complained

about the conduct of A-1 to A-3. He also deposed that in

March, 1999, A-1 to A-3 even assaulted him and his father at

Tihar Jail when he had gone there to meet A-4. This version

of PW28 Pawan Budhiraja is corroborated by PW30 Vikram

Singh when he deposed that he had escorted Pawan

Budhiraja and his father Amrit Lal Budhiraja to their house

after threats were extended to them within the premises of

Tihar Jail on 05.03.99. He had seen three or four boys by the

side of A-2 and A-3 and who had run away on seeing them.

They had extended threats to Pawan Budhiraja to eliminate

him.

xii) The testimonies of both these witnesses further

show that A-1 to A-3 were regular visitors to A-4 prior to the

incident and were in constant touch with him.

xiii) A-4 apparently has come up with a false plea in the


statement recorded U/s. 313 Cr.P.C., about his relationship

with A-1 to A-3 and about their visits to him. In their

statements, A-2 and A-3 have categorically admitted about

their visits to Tihar Jail to meet A-4. The defence has failed

to reconcile the two contradictory versions given by the

accused persons on this aspect.

xiv) There is enough evidence on record to show that A-

1 to A-3 were in constant / regular touch with A-4. There is no

substance if A-1 to A-3 were not having no acquaintance with

A-4 prior to the incident. Their names find mention in the

letters proved on record. PW16 Ram Achal Tiwari has also

deposed about visits of A-2 and A-3 in his cross examination.

He, however, added that A-2 and A-3 used to come along

with A-4 whenever there was a party at farm house. PW16

Ram Achal Tiwari, contrary to the stand taken by A-4 has at

least admitted that A-1 was known to him as he was the

nephew of A-4. Strange enough A-4 does not recognize A-1


as his nephew though, his trusted Caretaker knows him to be

his nephew.

xv) Above evidence discussed reveals that A-1 to A-3

were in constant touch with A-4 prior to the incident. The

occurrence took place on 20.03.99. Only on 19.03.99, a day

before the fateful incident, A-1 and A-2 had met A-4 inside the

jail. A-4 has denied this meeting falsely. It seems that A-4

intends to conceal as to what conversation took place

between him and A-1 and A-2 at that time. Regular visits of A-

1 to A-3 to A-4 in jail show that they were hand in glove with

each other. A-4 had no suspicion or complaint against

conduct and behaviour of A-1 to A-3 at any time.

xvi) It has further come on record that after this horrible

incident on 20.03.99, A-1 to A-3 who used to have frequent

visits at regular interval to A-4 did not deem it fit to inform A-4

about murder of his alleged beloved / fiancy. A-4 did not

suspect involvement of A-1 to A-3 at any time though, his


arrest in this case took place after sufficient long time. A-4

with the permission of the court, attended cremation of

deceased Kunjum, filled sindhoor in her mang but did not

bother to suspect involvement of any person in the

commission of murder of Kunjum. Mere attending cremation

and filling sindhoor in the mang of the deceased after the

incident is not sufficient to establish innocence of A-4. A-4

has failed to justify as to what prevented him to marry the

deceased earlier during her life time. The so called marriage

with a dead body seems a device adopted by A-4 to wriggle

out of the consequences of the offence. It remains mystery as

to what prevented A-4 to give identity to deceased during her

life time by marrying her before he was arrested in October,

1998.

xvii) Statement of PW16 Ram Achal Tiwari was in

existence on the day of incident itself. PW16 Ram Achal

Tiwari had been given copy of the FIR. A-4 must have come


to know about the contents of this statement. He did not

challenge the contents of the statement at any time as he

himself was not suspect at that time.

xviii) Visits of PW28 Pawan Budhiraja to meet A-4 are

not disputed. DW1 Naveen Budhiraja, brother of PW28

Pawan Budhiraja, was also lodged as an accused along with

A-4 in jail No.5 at that time. PW28 Pawan Budhiraja used to

meet both his brother and A-4 and used to provide home

made food to them on his visits. During these visits, exchange

of letters between the deceased and A-4 took place.

xix) The entire visit record to A-4 in jail further shows

that at no point of time deceased Kunjum ever came to meet

A-4 at Tihar Jail. There is nothing on record to show in the

letters also if A-4 ever asked deceased Kunjum, for whom he

used to have alleged immense love, to meet him at jail.

xx) There is nothing on record also to show if

deceased Kunjum had ever met A-4 during his hearing before


the courts. It shows that A-4 used to share his information /

instructions only with A-1 to A-3 who were regular visitors to

him. In her letters Ex.DW/1/1 to Ex.DW1/58 deceased time

and again expressed her desire to meet A-4. It seems that

her desire was not met by A-4.

3. Call Details / print-outs

i) Prosecution has relied upon call details that took

place between A-1, A-2 and PW30 Vikram Singh to infer

conspiracy regarding the incident.

ii) PW30 Vikram Singh running security agency

supported the statement of PW17 Hari Chand, security guard,

that on 20.03.99, at about 1 PM, he received his telephone

call on his mobile from PCO informing him about the murder

of a girl at Jai Mata Di farm house. He received the said call

at about 1.10 PM. Thereafter, he made telephone call from his

mobile to A-2 on her mobile No.9811024145 and told her

regarding the incident. A-2 told him that the name of the girl


was Kunjum who was murdered. A-2 again rang him from her

mobile and asked him to tell as to whether the boys who had

committed the murder were still at the farm house or not or

they had run away. A-2 asked him to tell those facts back to

her after checking the same. This call of A-2 was received by

him in between 1.15 to 1.30 PM. After about 1 ½ hour, he

reached at the farm house on the same day and saw the

police present there.

iii) In the cross examination of this witness, the

material facts asserted by this witness for having conversation

with A-2 on her mobile regarding the incident have remained

unchallenged and uncontroverted. A-2 did not deny that she

did not own mobile No. 9811024145 on the day of occurrence

or that she had not received any such call on her mobile from

PW30 Vikram Singh. She did not deny if in return no

telephone call from her mobile was made on the mobile of

PW30 Vikram Singh.


iv) Evidence adduced on record by the prosecution

proves beyond doubt that on the day of incident A-2 was

having mobile No.9811024145 .This mobile phone was

seized by PW37 Inspector Surender Sharma from the

possession of A-2 at the time of her arrest on 25.03.99.

Disclosure statement of A-2 Ex.PW21/2 was recorded and in

her disclosure statement she disclosed that her cell phone

was 9811024145. Cell phone with Sim card Ex.P3 was

seized vide seizure memo Ex.PW35/3. This seizure memo

bears signatures of Mahender Singh, father of A-2, at point E.

In the cross examination, A-2 did not deny if this mobile with

Sim card was not in her possession or that the same was not

seized by the IO on that day. She did not deny if she did not

make telephone calls on this mobile number or that the same

remained in custody / possession of someone else. A-2 did

not examine any witness in defence including her father to

controvert seizure of mobile with Sim card No. 9811024145


from her possession. In her statement recorded U/s. 313

Cr.P.C. Also A-2 did not specifically deny possession of this

Sim card and its recovery by the police. A-2 or any of her

family member did not come up with any plea if A-2 was

having no mobile on the day of incident or that she was

having some other mobile with different Sim card.

v) PW30 Vikram Singh in his statement before the

court categorically asserted to have made telephone call to

A-2 on her mobile No. 9811024145. The call was returned by

A-2. It shows that A-2 was using mobile No. 9811024145 on

the day of incident. There is nothing to disbelieve the natural

version given by PW30 Vikram Singh on this aspect.

vi) PW30 Vikram Singh further disclosed that during

those days in the month of March 1999, he was having mobile

phone with him whose number was 9811155439. This witness

has not been controverted on this aspect. PW17 Hari Chand

also deposed that on the day of incident, he had informed PW


Vikram Singh on his mobile No.9811155439. It thus stands

established that PW30 Vikram Singh was having mobile No.

9811155439 on the day of occurrence.

vii) Prosecution has further claimed that A-1 was

having his mobile with number 9810114857. Prosecution was

not aware about this mobile number of A-1. At the time of

apprehension of A-1 from Ahmedabad, in his disclosure

statement, Ex.PW12/A made there, A-1 himself disclosed that

his mobile No. was 9810114857. PW12 Tarun Kumar,

Inspector crime branch, testified that due to the disclosure

statement of A-1, he came to know that his mobile number

was 9810114857. Discovery of mobile number which was not

known to the police of PS Ahmedabad in disclosure statement

is a relevant fact to be taken into consideration. At no stage

during trial, A-1 denied that he did not own any such mobile

number and did not use to have conversation on it. He did not

claim to own any other mobile with any other mobile number.


This fact was within special knowledge of A-1 which he has

failed to divulge. In the cross examination of the prosecution

witnesses, A-1 did not challenge that he did not own this

number.

viii) Having ascertained the mobile numbers of A-1, A-2,

PW30 Vikram Singh, the prints-outs taken regarding their call

details by PW36 Inspector Jagdish Meena are very material.

He collected the print-outs of mobile phones which are

Ex.PW36/5.

ix) PW8 Deepak Gupta, Deputy Manager, Legal

Operation, Essar Cell phones, Okhla proved the print-outs

Ex.PW9/1 regarding the call details on the mobile phone of

PW30 Vikram Singh having mobile No.981155439. In his

statement before the court, he stated that address of Vikram

Singh was at A-1/19, Sector-V, Rohini, Delhi and he was their

regular customer and was having cell number 9811155439.

This witness further stated that mobile telephone


No.9811024145 was a pre-paid cash card. This witness

proved the computer print-outs of this mobile phone detailing

the calls for the period from 01.03.99 to 24.03.99 running in

eight pages which are Ex.PW9/2.

x) PW11 Capt. Rakesh Bakshi proved that on

01.09.99 print-outs of mobile No. 9810114857 was provided

by him to the IO running into six pages and the same are

Ex.PW11/1. This witness further proved the print-outs from

the back-up server which are Ex.PW11/2.

xi) Both these witnesses, however, could not give as to

whom the telephone number 9811024145 and 9810114857

belonged as these were pre-paid cash cards. Nevertheless,

neither A-2 nor A-1 specifically challenged that both these

mobile numbers did not belong to them. These official

witnesses have no ulterior motive to fabricate the print-outs

showing call details for different dates between different

mobile numbers and there is nothing to disbelieve the call


details recorded therein.

xii) Perusal of call details on the mobile phone of PW30

Vikram Singh vide Ex.PW9 /7 for the period from 02.03.99 to

31.03.99 reveals that on 20.03.99, PW30 Vikram Singh made

telephone call to A-2 on her mobile No. 9811024145. This

call was made at 1.14.40 hours. The duration of the call was

44 seconds. The call detail recorded in the print-out Ex.PW9/1

substantiates the oral testimony of PW30 Vikram Singh

regarding making telephone call from his mobile to the mobile

of A-2 disclosing the incident.

xiii) The call detail further reveals that PW30 Vikram

Singh received call from mobile number 9811024145 from A-

2 on 20.03.99 at 1.33.2 hours on his mobile No.9811155439.

Again, this entry Ex.PW9/A corroborates the oral testimony of

PW30 Vikram Singh that A-2 had given him a back call.

xiv) A-2 has failed to explain how and in what

connection she had conversation on her mobile with PW30


Vikram Singh. Silence on her part, compels the court to draw

adverse inference against her.

xv) Call details of mobile number 9811024145 of A-2

vide Ex.PW9/2 for the period from 01.03.99 to 24.03.99

further demonstrate that on 17.03.99 A-2 made telephone call

to A-1 on his mobile number 9810114857 at 11.21.12 hours.

On 18.03.99, A-2 received a call from A-1 at 9.41.36 hours.

Again, on 18.03.99, A-2 made telephone call to A-1 on his

mobile at 10.08.55 hours. On 20.03.99, A-2 received

telephone call from A-1 at 9.47.30 hours. On 20.03.99, A-2

received call from the mobile of PW30 Vikram Singh at

1.14.40 hours. On 20.03.99, at 1.33.24 hours , A-2 made

telephone call on the mobile phone of PW30 Vikram Singh.

On 20.03.99, A-2 made telephone call to A-1 at 1.36.04

hours.

xvi) All these calls contained in these print-outs have

not been challenged by A-2.


xvii) Perusal of the call details of mobile phone of A-1

vide Ex.PW11/1 also lends credence to these calls. As per the

print-out Ex.PW11/A, A-1 received call from A-2 at 1.38 hours

and its duration was 71 seconds. On 20.03.99, A-1 made

telephone call for 146 seconds to A-2 at 9.50 AM.

xviii) These call details between A-1 and A-2; between A-

2 and PW30 Vikram Singh prove that A-1 and A-2 were in

constant touch on their mobiles prior to the incident as well

as on the day of incident also. It has further been established

that A-2 had come to know about murder of the deceased on

getting information from PW30 Vikram Singh. It has further

come on record that thereafter A-2 had given a call back to

PW30 Vikram Singh and she had also conversation with A-1

on his mobile after the occurrence. There is nothing to

disbelieve these documentary proof.

xix) Neither A-1 nor A-2 came up with any plausible

plea as to how and under what connection they were in touch


with each other on the day of incident. They did not disclose

what was their conversation. It fully proves that A-1 and A-2

remained in touch on the day of incident. They were aware of

the developments taking place at the farm house and were

communicating with each other.

4) Conduct of A-1 & A-2

i) Conduct of A-1 and A-2 is relevant to infer their

involvement in the incident. They both had come to know

about the incident, however, none of them bothered to inform

A-4 regarding the gruesome murder of Kunjum with whom A-4

was having alleged intimate relationship. A-1 and A-2 who

were regular visitors to A-4 prior to the incident and had even

met him in jail on 19.03.99 were expected to immediately

reach at the spot to know as to how and under what

circumstances murder of Kunjum took place and their natural

conduct could have been to get the culprits arrested soon

after the incident and to inform A-4 in the jail. Contrary to that,


A-1 fled to Ahmedabad and was apprehended from there on

the intervening night of 22/23/03.99. A-2 did not visit the spot

or visit A-4 in jail after the incident.

ii) Neither of them bothered to immediately inform the

parents or brothers of the deceased about the occurrence.

They even did not inform the police. There is nothing to show

if any one of them prior to their arrest considered it proper to

visit the family of the deceased to console them. They did not

at all assist to get the alleged robbers arrested for the murder

of deceased to whom A-4 purportedly considered his “would

be” wife. This abnormal and unnatural conduct of A-1 and A-2

points an accusing finger against them.

5. Letters / Motive

i) Main emphasis of the prosecution is on the

contents of letters exchanged between the deceased and A-4

to infer conspiracy. Prosecution has relied upon letters written

by A-4 to deceased Kunjum from jail to infer conspiracy


hatched by him to eliminate deceased Kunjum and his motive

to take the extreme step. A-4 in his statement recorded

U/s.313 Cr.P.C., denied to have written any letter.

Prosecution has examined cogent witnesses to prove letters

written by A-4. It has come on record that while in custody,

the communication between A-4 and deceased Kunjum was

through letters. A-4 himself has filed on record number of

letters written by deceased Kunjum during her life time to him.

These letters used to be exchanged through PW28 Pawan

Budhiraja during his visits to A-4 at Tihar Jail. There is no

substance in the plea of A-4 in statement U/s. 313 Cr.P.C.

that he had not written any letters to deceased in reply to

letters admittedly written by her. Some letters written by

deceased relied upon by A-4 in defence speak of letters

received by her from A-4.

ii) PW28 Pawan Budhiraja in his examination-in-chief

stated that A-4 and his deceased sister used to communicate


with the help of letters. He used to carry the letters from A-4

and used to pass on to his sister. He also used to carry letters

of deceased Kunjum to A-4 in jail. This witness identified the

handwriting and signatures of deceased Kunjum and informed

that letter Ex.PW27/B running into five pages was in the

handwriting of his deceased sister. This witness further

identified two letters Ex.PW28/B and Ex.PW28/C to be in the

handwriting of A-4 addressed to his sister. He further stated

that he identified the handwriting of A-4 as he used to carry

his letters from Tihar Jail to his sister Kunjum or to his mother

or father whosoever was available. This witness further

deposed that he had handed over letter Ex.PW27/B,

Ex.PW28/B and Ex.PW28/C to the IO on 25.03.99 who seized

vide memo Ex.PW28/D.

iii) This witness was cross examined on behalf of A-4.

In the cross examination, he admitted that the letters which he

used to bring from the jail were open and were not in sealed


envelope. He used to hand over the letters which were of his

sister to his mother and father whosoever was present at that

particular time.

iv) A-4 did not put any suggestion to this witness in the

cross examination if letters Ex.PW27/B, Ex.PW28/B and

Ex.PW28/C were not in his handwriting or in the handwriting

of deceased Kunjum. A-4 did not deny if letters Ex.PW28/B

and Ex.PW28/C were not written by him or that the same

were not meant for the deceased Kunjum or that he had not

handed over these letters to be delivered to the deceased.

Hence, the testimony of this witness regarding exchange of

letters between A-4 and deceased has remained

unchallenged.

v) A-4 examined Naveen Budhiraja, elder brother of

the deceased, in his defence as DW1. He identified the

handwriting and signatures on letters (page number 1 to 58)

Ex.DW1/1 to Ex.DW1/58, to be that of deceased Kunjum. In


the cross examination by Ld. Special PP for the State, this

defence witness also identified letter Ex.PW27/B to be in the

handwriting of his deceased sister. This witness further

identified letters Ex.DX and Ex.DZ to be in the handwriting of

deceased Kunjum.

vi) Prosecution also examined PW34 Deepa Verma,

Senior Scientific Officer – documents and proved her report

Ex.PW34/1. Specimen handwriting of A-4 vide documents

Ex.PW33/1 and Ex.PW33/2 were sent for comparison with the

questioned writing Ex.PW28/B. After examining the

questioned documents with specimen handwriting, the expert

witness came to the conclusion that the person who wrote

specimen handwriting S-1 to S-8 (Ex.PW33/1 & Ex.PW33/2)

also wrote questioned writing Q-1 to Q-12 (Ex.PW28/B). The

witness gave detailed reasons to arrive at the said conclusion.

vii) This expert witness has no motive to give false

report. No expert in defence to controvert the opinion given by


this official witness was produced by A-4.

viii) Thus, the prosecution has established that letters /

documents Ex.PW27/B, Ex.PW28/B and Ex.PW28/C are in

the handwriting of deceased and A-4. Denial by A-4 in the

statement recorded U/s. 313 Cr.P.C. is for ulterior purpose.

ix) Contents of letters Ex.PW28/B, Ex.PW28/C reveal

that these letters were written by A-4 soon prior to the

incident. In these letters, A-4 insisted the deceased Kunjum

time and again to perform pooja at the temple during

navratras at Jai Mata Di farm house and at Mayfair house. A-

4 persuaded Kunjum in these letters to reach at farm house

and assured to make available keys of the same through A-1

or Mr. Tiwari if she was already having none. PW28 Pawan

Budhiraja in his statement before the court also deposed that

he had visited A-4 in jail on 19.03.99 one day prior to the

occurrence. A-4 gave him message for his sister to perform

pooja inside the farm house and he also told him that A-1


would give keys. Further deposition of the witness is that

thereafter in the evening he had gone to collect keys at

Mayfair Garden. He was not given keys and was rather

insulted. His sister could not complete letter Ex.PW27/B as

she was very tense and upset due to behaviour of A-1 to A-3.

x) Again, in the cross examination, these facts

asserted by the witness have not been challenged. No

suggestion was put to this witness in the cross examination

that he had not gone to meet A-4 on 19.03.99 or that A-4 had

not delivered him message for deceased to visit the farm

house to perform pooja. It stands established that deceased

Kunjum had visited Jai Mata Di farm house on the fateful day

of incident only in pursuance of the request made by A-4. It

has come on record that after arrest of A-4 in some other

case in October, 1998, deceased Kunjum had never visited

the farm house. PW27 Rani Budhiraja, mother of the

deceased, specifically stated that on the day of incident, her


daughter Kunjum alone had gone to Jai Mata Di farm house.

She never used to go alone. Prior to arrest of A-4, she had

gone to Jai Mata Di farm house along with him (A-4). Only on

the day of occurrence, she had gone alone to the farm house.

None of the prosecution witnesses though turned hostile,

specifically deposed if deceased Kunjum was regular visitor to

the farm house. A-4 in his statement recorded U/s. 313

Cr.P.C. did not assert if deceased Kunjum was regular visitor

to the farm house or that she used to run day to day activities

at the farm house like meeting expenses and paying salary to

the security guards or Caretaker, etc. No such account has

been placed on record by the accused persons.

xi) The fact remains that on the day of incident,

deceased Kunjum had alone reached at Jai Mata Di farm

house. There was none else with her at that time. This solitary

visit to farm house was apparently due to the request of A-4

asking her to perform pooja during navratras there and as per


the oral message conveyed to her through PW28 Pawan

Budhiraja. Had A-4 not asked deceased Kunjum to visit Jai

Mata Di House, there was no occasion for the deceased

Kunjum to reach alone at Jai Mata Di farm house to meet this

tragic end.

xii) Contents of letter Ex.PW27/B in the handwriting of

the deceased which remained incomplete and could not

reach to A-4 meant for him, reveals how tense deceased

Kunjum was on getting message to perform pooja. From the

contents of this letter, it is depicted that A-4 was insisting

deceased Kunjum to go there and perform pooja. The

contents of this letter further reveal that deceased Kunjum

was having no control over Jai Mata Di farm house and the

premises at C-30, Mayfair Garden. She was not having keys

of either of the two properties. In this letter Ex.PW27/B, she

exhibited her anguish for not making available keys by A-1 to

A-3 to perform pooja. The contents of this letter further reveal


that Pawan Budhiraja (PW28) had gone to inform A-1 to hand

over keys. However, they did not hand over the keys.

Contents of this letter further reveal that A-1 to A-3 had

already got the pooja performed at C-30, Mayfair Garden and

only place left to perform pooja was Jai Mata Di farm house

where the deceased was to reach.

xiii) Contents of this letter falsify plea of A-4 in the

statement recorded U/s. 313 Cr.P.C. that A-1 to A-3 had no

concern with the properties and the same were looked after

only by the deceased and her family members. Had it been

so, there was no occasion to write in letter Ex.PW27/B about

the conduct and behaviour of A-1 to A-3 for not making

available the keys.

xiv) Letters Ex.PW28/B and Ex.PW28/C also talk to

make the key of Jai Mata Di farm house and of the premises

at C-30, Mayfair Garden available through A-1. Strange

enough in the statement recorded U/s. 313 Cr.P.C., A-4


denied any acquaintance, whatsoever, with A-1. It shows that

A-4 is not coming with true facts. Keys of Jai Mata Di farm

house were not in the possession of the deceased prior to

the incident. It has further come on record that keys of Jai

Mata Di farm house were made available to deceased

Kunjum by A-1 only for the purpose to enable her to perform

pooja in pursuance by A-4. PW27 Rani Budhiraja, mother of

the deceased, denied the suggestion of A-4 in the cross

examination that keys of the farm house were with the

deceased after A-4 was confined in jail. This witness

volunteered to add that on the day of occurrence, A-1 came at

7 AM and handed over the keys. Statement of PW28 Pawan

Budhiraja, brother of the deceased, is relevant on this aspect.

In his deposition before the court, he stated that he had gone

to Mayfair Garden in the evening of 19th and met panditji, A-2

and A-3 and when he asked for the keys, they did not give

him the keys and even did not reply properly. Thereafter, he


returned. The witness further stated that at that time, A-2 and

A-3 along with one panditji were getting some statue for

pooja. This deposition of the witness is in consonance with

the contents of letter Ex.PW27/B. This witness also disclosed

that in the evening, deceased had inquired from A-1 as to why

he had insulted the witness and if they did not want, her

brother (PW28) would not come.

xv) This witness was not cross examined by A-1. There

is no denial that A-1 was not in possession of the keys of Jai

Mata Di farm house prior to the incident or that it was not

made available to the deceased in the morning of 20.03.99 on

the day of incident.

xvi) Burden was heavily upon A-4 to explain bonafide

purpose of his insisting Kunjum time and again to perform

pooja at Jai Mata Di farm house. In the statement recorded

U/s. 313 Cr.P.C., A-4 did not give plausible explanation, his

motive / purpose to ensure presence of the deceased at


secluded place at Jai Mata Di farm house. There is nothing

on record to show if deceased Kunjum had ever performed

pooja at Jai Mata Di farm house alone at any time. A-4 was

already in custody since October, 1998 and at no stage prior

to the incident in question, he ever asked the deceased to

perform pooja at the temple. Navratras had already begun. A-

4 did not ask the deceased in advance before the beginning

of navratras to perform pooja at the temple at Jai Mata Di farm

house. There is nothing on record if on daily basis, the temple

at Jai Mata Di farm house was being cleaned or regular

pooja was being performed. That seemed to be device to

make presence of deceased at the spot certain in which

accused persons succeeded.

xvii) Conspiracy is writ large as when deceased Kunjum

reached at Jai Mata Di farm house, she was alone and was

not at all accompanied with any panditji. She was not having

even any pooja samagri to perform pooja at the temple which


was allegedly lying idle / deserted since the date of arrest of

A- 4 in October, 1998. Without the assistance of panditji or in

the absence of any pooja material, how deceased Kunjum

could perform pooja at the temple. These questions have not

been answered by A-4 in his statement recorded U/s. 313

Cr.P.C.

xviii) The testimonies of PW15 Sunil Kumar and PW17

Hari Chand, security guards, fill this void and answer the

queries to remove mist. In their deposition before the court,

both these witnesses in so many words deposed about arrival

of A-2 and A-3 along with one panditji at Jai Mata Di farm

house on 20.03.99, at about 11.30 AM soon prior to the arrival

of deceased Kunjum. They further deposed that A-2 and A-3

along with one Panditji had met Mr. Tiwari and asked him to

get the mandir cleaned. Thereafter, both of them proceeded

towards the gate where A-5 to A-7 were standing and met

them. After sometime, A-2 and A-3 left on the pretext to


purchase samagri for pooja and to return after a short while,

however, they never returned thereafter. Since, deceased

Kunjum was having no pooja samagri and was not

accompanied with any panditji, the story presented by both

these witnesses regarding presence of A-2 and A-3 along

with panditji at Jai Mata Di farm house at about 11.30 AM and

thereafter, their leaving the place on the pretext of bringing

pooja samagri appeals to mind. It seems that deceased was

ensured that pooja samagri and panditji would be available at

the time of her performing pooja at Jai Mata Di farm house. It

shows that A-4 had not intended Kunjum to perform pooja.

His only intention was to ensure her arrival there to trap her

and for that reasons, Kunjum had come alone without any

panditji and even without any pooja material. Contents of

letters Ex.DW1/1 to Ex.DW1/58 amply show that deceased

was already doing a lot for early release of A-4 and was

performing various rituals and ceremonies to worship God.


So, there was no occasion for A-4 to force her to reach at Jai

Mata Di farm house only for performing pooja there.

xix) Main emphasis / stress of Ld. defence counsel for

A-4 is upon the letters Ex.DW1/1 to Ex.DW1/58 written by

deceased Kunjum to A-4 to show that there was great love

and affection for the deceased in the heart of A-4. Deceased

herself had given detailed account as to how she used to

have deep love and affection for A-4. There was no demand

raised by the deceased in the letters prompting A-4 to

eliminate her. Deceased used to pray for early release of A-4

and there was no occasion for A-4 to sever his relations with

her.

xx) I have gone through the contents of these letters

and find that deceased Kunjum was having all love and

affection for A-4. She was having no grudge, whatsoever,

against A-4 and prayed for his early release. However, these

letters were never produced by A-4 during investigation to the


police. There is no guarantee that these were the only letters

written by the deceased to A-4. There is no guarantee that A-

4 produced each and every letter written to him by the

deceased. A-4 is not expected to bring on record the letters

having incriminating piece of circumstance against him.

There is no proof that these were the only letters written by

the deceased during the custody period of A-4 prior to the

occurrence. So, all these letters can't be made basis to

reach to a definite conclusion that all was fair till the date of

incident between the deceased and A-4. Again, A-4 did not

clarify in his statement recorded U/s. 313 Cr.P.C. if he used to

write letters regularly to the deceased. No such letters have

come on record except the letters Ex.PW28/B and

Ex.PW28/C.

xxi) Letters Ex.DW1/1 to Ex.DW1/58 proved on record

by A-4 pertain to the period for the month of December 1998,

January 1999, February 1999 and first week of March 1999.


Dates mentioned in these letters show that deceased used to

write letters to A-4 prior to 05.03.99 on regular basis. There

are letters written by the deceased which are dated 04.01.99,

05.01.99, 06.01.99, 07.01.99, 08.01.99 and 09.01.99. Again,

number of letters were written in February 1999. A-4 has filed

on record only one letter dated 05.03.99 written to A-4 in

March 1999. No letter after 05.03.99 and prior to 20.03.99

written by the deceased has been placed on record. When

the deceased was in the habit of continuously writing letters at

regular interval to A-4, there was no occasion for her not to

write letters to A-4 for so long duration after 05.03.99. A-4

did not give any explanation for not filing on record the letters,

if any, written by the deceased to him in between 05.03.99

and 20.03.99. It shows that A-4 did not file on record all the

letters written by the deceased to him and he seems to have

concealed those letters. Moreover, some of the letters filed

on record by A-4 are not complete ones and some of the


letters have partial torn portion of the page. So, it can't be

said that the relations between the deceased and A-4

continued to be as cordial as they were prior to the arrest of

A-4.

xxii) I have gone through the contents of these letters

Ex.DW1/1 to Ex.DW1/58. These letters show that there were

demands by the deceased also. In letter Ex.DW1/24, there is

mention regarding the documents / papers to be sent to A-4

for property at Hauz Khas. In letter Ex.DW1/28, the deceased

informed A-4 that they had shifted to C-31, Hauz Khas and

had brought their articles therein. She further disclosed that

she did little pooja herself and shifted to C-31, Hauz Khas. In

letter Ex.DW1/32 and Ex.DW1/33, there is mention to get

Santro car on finance basis. In some letters, there is mention

for running health club / gym. In one letter Ex.DW1/27,

deceased complained for not getting any identity. The letter

Ex.PW28/B and Ex.PW28/C written by A-4 reveal that he


requested the deceased to settle for an Indian car instead of

having an imported car. A-4 even asked her to arrange on

installment basis a small Indian car. There is demand of some

computer for PW28 Pawan Budhiraja also. So, it can't be said

that there was no demand, whatsoever, by deceased or that

on that account, A-4 had no motive to get rid of her. There is

nothing in the statement recorded U/s. 313 Cr.P.C. if A-4 had

permitted the deceased to shift to C-31, Hauz Khas. Shifting

of the deceased to C-31, Hauz Khas seems to have

altogether changed the mind of A-4 towards the deceased.

PW27 Rani Budhiraja stated before the court that the

deceased had shifted to C-31, Hauz Khas only about nine

days prior to her murder. The deceased moved an application

Ex.PW27/A dated 15.03.99 for shifting of telephone at C-31,

Hauz Khas.

xxiii) Contents of all these letters support the

prosecution case to establish motive of accused persons


specially A-4 to hatch conspiracy to eliminate the deceased.

xxiv) In circumstantial evidence, motive assumes greater

significance. Motive lies in the mind of the person. Most often

it is only perpetrator of crime who knows as to what

circumstances prompted him to a certain course of action

leading to the commission of the crime. It is not possible to

measure up the extent of his feeling, sentiments or desire as

to say what compelled him to commit a particular crime.

xxv) However, in the present case prosecution through

letters, proved on record, has established strong motive of A-

4 to get rid of the deceased. Nearness of A-1 to A-3 with A-4

further lends credence to this belief.

xxvi) After coming to know about the deceased shifting to

C-31, Hauz Khas, it seems that his affairs from side of A-4

with deceased Kunjum broke beyond redemption. It proved to

be a turning point in their relations.

6. Strained relations of A-1 to A-3


i) On scrutinizing the evidence adduced on record by

the prosecution, it stands established that relation of A-1 to A-

3 were not at all cordial with the deceased prior to the

occurrence. There is nothing on record to show if all these

accused persons had ever cordial meeting with the deceased

at any time. Rather, evidence has come on record that all

these accused persons ill-treated PW28 Pawan Budhiraja,

younger brother of Kunjum, at Tihar Jail. They made all efforts

not to allow PW Pawan Budhiraja to have meeting with A-4 at

Tihar Jail. PW28 Pawan Budhiraja even narrated one

incident in which A-1 to A-3 extended threats to him and his

father at Tihar Jail and he had to call PW30 Vikram Singh who

on reaching at Tihar Jail escorted PW28 Pawan Budhiraja

and his father to their house. Contents of the letter

Ex.PW27/B in the handwriting of the deceased reveal that

PW28 Pawan Budhiraja was not given key of the farm house

and was insulted on 19.03.99. Deceased had complained to


A-1 for not providing key of the farm house to PW28 Pawan

Budhiraja. Deceased also complained about this attitude of A-

1 to A-3 in the letter meant for A-4.

ii) A-4 claimed the deceased to be his fiancy. Plea of

A-4 is that he and deceased wanted to marry with the consent

of her parents. Had the relation between the deceased and A-

4 been so intimate, A-1 to A-3 who used to have regular

meetings with A-4 in jail would not have dared to disobey him

and to annoy PW28 Pawan Budhiraja. They would not have

dared to deprive the deceased key of the farm house. A-2 and

A-3 who were asserted sisters of A-4 would have given due

respect to the deceased, would-be wife of A-4. However,

nothing such happened. A-4 even himself did not opt to hear

PW28 Pawan Budhiraja and the deceased against A-1 and A-

3 on this and surprisingly never made them understand.

iii) Grievances of deceased towards A-1 to A-3 even

find mention in the letters Ex.DW1/1 to Ex.DW1/58 written by


the deceased to A-4. In the letter dated 29.01.99, Ex.DW1/21,

there is specific complain about the conduct and behaviour of

A-1 to A-3 for doing lot of mischief. In the letter Ex.DW1/1

dated 25.01.99, deceased did not deem it fit to hand over

letter in the hands of A-2 to be delivered to A-4. Similarly, in

the letters dated 13.02.99, Ex.DW1/15, there is disclosure

about interference by A-2 and A-3. In the letter Ex.DW1/11,

there is mention regarding payment of some money to A-1. In

most of the letters, deceased earnestly expressed her desire

to meet A-4. However, no such meeting ever took place.

Contrary to that, A-1 to A-3 remained in constant touch with

A-4 prior to the incident. It shows that despite coming to know

about the complaints or grievances of the deceased about A-1

to A-3, A-4 continued to have his trust reposed in A-1 to A-3.

This conduct of A-4 ignoring the grievances of the deceased

shows that he was nearer to A-1 to A-3 than the deceased

and did not care much about her.


iv) Since A-1 to A-3 were having strained relations with

the deceased and considered her to be an obstruction in their

relation with A-4, there was every certainty of them to hatch

conspiracy with A-4 to eliminate her. A-1 to A-3 definitely did

not like her undesirable interference. PW27 Rani Budhiraja

and PW28 Pawan Budhiraja have deposed that A-2 wanted to

marry A-4. Deceased in her letter Ex.PW27/B specifically

complained A-2 to be claiming herself as Mrs. Sharma. This

attitude of deceased qua A-2 show that relations between A-1

to A-3 with deceased were not at all smooth. There was, thus,

no reason for them not to join hands with A-4 in his design.

7. Visit of A-1 at Jai Mata Di farm house

i) Prosecution case is that on 20/3/99 in the morning

A-1 visited Jai Mata Di farm house and had conversation with

A-5 to A-7 present there.

ii) Both prosecution witnesses PW15 Sunil and PW17

Hari categorically deposed about visit of A-1 at Jai Mata Di


farm house on 20/3/99 at about 8 am. They further deposed

that A-1 had conversation there with A-5 to A-7. For the

reasons mentioned above, to accept their version, there is

nothing to disbelieve the deposition of both these independent

witnesses on this aspect also. A-1 has failed to explain the

purpose of his visit at Jai Mata Di farm house in the morning

or to have conversation with A-5 to A-7. This visit of A-1 to Jai

Mata Di farm house is an incriminating piece of evidence

against against him showing his involvement.

8. Visit of A-2 and A-3 at the Jai Mata Di farm house

i) Further case of the prosecution is that both A-2

and A-3 along with one Panditji had visited Jai Mata Di Farm

house on 20/3/99 at about 11.30 am. Again both these

material witnesses PW5 Sunil and PW7 Hari testified about

visit of both A-2 and A-3 along with Panditji at Jai Mata Di

farm house. They further deposed that at that time A-2 and A-

3 met PW 16 Ram Achal Tiwari. They had also conversation


with A-5 to A-7.

ii) There is nothing to disbelieve the assertion of these

material prosecution witnesses on this aspect too. A-2 and A-

3 further failed to explain/justified their visit at Jai Mata Di

Farm house on 20/3/99. In these circumstances also pointing

out an accusing finger against them.

9. Inconsistent defence / false explanation

i) Accused persons have taken inconsistent,

contradictory defence in their statements recorded U/s 313

CrPC. They all failed to give plausible explanation to the

incriminating circumstances appearing against them. A-4

categorically pleaded that he never met A-2 and A-3 in jail. A-

2 and A-3 have given contradictory statements disclosing that

they used to meet A-4 in jail to seek instructions from him to

pursue his cases as Pairokars. Prosecution produced

substantial documentary evidence on record to substantiate

that A-1 to A-3 were regular visitors to A-4 at Tihar Jail as well


as during his appearance before different courts in the lock-

ups.

ii) A-4 categorically denied that except Kunjum and

her family members, no else was authorized to enter inside

Jai Mata Di farm house. Prosecution proved on record

clinching evidence to show that A-1 to A-3 used to manage

the properties of A-4 and also used to visit Jai Mata Di farm

house. A-4 himself told the deceased in his letters to make

available key of the farm house through A-1.

iii) A-4 in the statement surprisingly refused to

recognize A-1 to be his nephew. Cogent evidence proved on

record falsifies this plea of A-4. A-4 remained mum regarding

his relation with A-2 and A-3. He did not opt to give specific

answer regarding the role attributed to them by the

prosecution. He merely expressed his ignorance to the

incriminating circumstances. He did not assert if A-2 and A-3

were his party workers. He did not plead if he used to


consider A-2 and A-3 as his 'sisters'.

iv) A-2 and A-3 in their statements U/s 313 CrPC also

did not claim themselves like 'sisters' of A-4. They merely

claimed themselves as pairokars of A-4. They failed to

disclose acquaintance with A-1.

v) Similarly other accused persons offered false

defence. The accused persons failed to explain the

incriminating circumstances appearing against them.

vi) It is well settled law that giving

evasive/incorrect/misleading explanation to the incriminating

circumstances goes against the accused. In the latest case

titled “State of Rajasthan Vs Kashi Ram” reported in 2007

SC 144, the Hon'ble Supreme Court has discussed the law

u/s 106 Evidence Act and it has been observed that :-

''The provisions of section 106 of the Evidence Act

itself are unambiguous and categoric in laying down that

when any fact is especially within the knowledge of a person,


the burden of proving that fact is upon him. Thus, if a person

is last seen with the deceased, he must offer an explanation

as to how and when he parted company. He must furnish an

explanation which appears to the court to be probable and

satisfactory. If he does so he must be held of have

discharged his burden. If he fails to offer an explanation on

the basis of the facts within his special knowledge, he fails to

discharge the burden cast upon him by section 106 of the

Evidence Act. In a case resting on circumstantial evidence if

the accused fails to offer a reasonable explanation in

discharge of the burden placed on him, that itself provides an

additional link in the chain of circumstances proved against

him. Section 106 does not shift the burden of proof in a

criminal trial, which is always upon the prosecution. It lays

down the rule that when the accused does not throw any light

upon facts which are specially within his knowledge and

which could not support any theory or hypothesis compatible


with his innocence, the court can consider his failure to

adduce any explanation, as an additional link which

completes the chain''.

vii) In the case of “B.P. Sinha & others Vs. State of

Assam”, AIR 2007 SC 848, the Hon'ble Supreme Court

observed that :

“It is well settled that statement U/s. 313 Cr.P.C.

cannot form the sole basis of conviction, but its effect thereof

may be considered in the light of other evidences brought on

record”.

10. Defence – if helpful?

i) None of the accused persons except A-4 examined

any witness in defence to falsify the case of the prosecution

and to establish his innocence. A-4 only examined DW1

Navin Budhiraja, elder brother of the deceased to prove

letters Ex DW1/1 to DW1/58 written by the deceased to him.

No other evidence was produced in defence to substantiate


pleas taken by the accused persons in their statements

recorded U/s 313 CrPC or to prove their defence put in the

cross examination of material witnesses.

ii) A-4 did not examine any witness to show that he

had no concern whatsoever with A-1 to A-3 or that only the

deceased and her family members had authority to manage

his all properties and none else had the authority to enter

inside the farm house. A-4 did not claim if A-2 and A-3 were

like his 'sisters' or that they used to tie Rakhi to him. A-2 and

A-3 themselves did not claim that they were like 'sisters' of A-

4 or used to tie Rakhi to him. Rather prosecution has filed on

record number of documents filed by A-2 and A-3 during their

meetings with A-4 where they claimed themselves family

friends of A-4. It is only in the testimony of a hostile witness

PW16 Tiwari where he stated that A-2 and A-3 used to come

along with A-4 at the firm house whenever there was a party

and they used to tie Rakhi to A-4. However, PW16 Ram Achal


Tiwari did not explain as to when and on what occasion A-2

and A-3 had tied Rakhi considering A-4 their brother. Nothing

has come on record if this pious ritual is being observed till

date.

iii) The defence taken by A-5 to A-7 that murder was

hand-work of some unknown robbers holds no water. This

defence theory is a complete hoax and incredible and falsely

invented by them to escape from the guilt and the legal

punishment and also to drift the course of investigation.

iv) Accused persons except A-4 failed to produce on

record any evidence to show their presence at the relevant

date at any other specific place. They did not bother to

examine their family members to show their presence at their

respective houses at the relevant time. They did not examine

any witness from their place of work to ensure their presence

there at the time of occurrence.

v) There is thus no defence evidence on record on


behalf of any of the accused persons to controvert positive

testimonies of the prosecution witnesses. The accused

persons thus have failed to substantiate their respective pleas

taken in their statements recorded U/s 313 CrPC.

11. Arguments – no helpful

i) I do not subscribe to the submission of Ld. defence

counsels for the accused persons that no reliance can be

placed on the statement of PW15 Sunil Kumar, PW17 Hari

Chand and PW28 Pawan Budhiraja. They have made vital

improvements in their deposition before the court. I do agree

with the contention of Ld. defence counsels for the accused

persons that prosecution witnesses have made some

improvements in their deposition before the court. All the facts

deposed by them in their examination-in-chief do not find

mention in their statements recorded U/s. 313 Cr.P.C. At the

same time, I am also of the view that testimonies of all these

witnesses can't be thrown away simply because some of the


facts narrated by them before this court in their examination-

in-chief are lacking in their statements recorded by the IO U/s.

161 Cr.P.C. The improvements pointed out by Ld. defence

counsels for the accused persons are not fatal to the case of

the prosecution as they do not go to the root of the case. It is

not that all these prosecution witnesses have given entirely

inconsistent, contradictory version before the court to make

improvements regarding the names of the assailants /

accused persons or the exact role played by accused in the

commission of the incident.

ii) In the case reported in “AIR 2003 Supreme Court

282”, the Hon'ble Supreme Court has observed that

“evidence of interested witnesses otherwise credit worthy

can't be discredited merely because it was not available in the

statements U/s. 161 Cr.P.C”.

iii) In the latest case of “State of Rajasthan Vs. Om

Prakash” reported in AIR 2007 S.C. 2257 Hon'ble Supreme


Court has observed that, “irrelevant details which is no way

corrode the credibility of a witness cannot be levelled as

omissions or contradictions”. The Hon'ble Supreme Court

observed that certain improvements in the version of the

witnesses were of no consequence.

iv) In the present case IO was not inquired in cross if

the prosecution witnesses were examined U/s 161 CrPC on

the facts deposed by them in their examination in chief before

the court. Simply because IO failed to record the detailed

version of the prosecution witnesses given by them before the

court, their otherwise reliable testimony cannot be thrown

away.

v) Regarding plea of ld defence counsel for non-

holding test identification parade in this case, in my view it has

no serious effect. All these accused persons were known to

the prosecution witnesses prior to the occurrence. PW 15

Sunil and PW17 Hari Singh were known to A-5 to A-7 on the


day of incident and have named them in their statements. So

much so names of A-5 to A-7 find mention in the statement Ex

PW6/1 on the basis of which the present FIR was registered.

More-over all these accused persons were identified by

material prosecution witnesses during their deposition before

the court. Identification Tests Parade do not constitute

substantive evidence. In the latest case titled “Heera and

others Vs. State of Rajasthan” reported in AIR 2007 S.C.

2425”, the Hon'ble Supreme Court observed that, “holding of

test identification parade is not obligatory. Failure to hold

parade would not make inadmissible evidence of identification

in court. The weight to be attached to such identification

should be a matter for the courts of fact. In appropriate cases,

it may accept the evidence of identification even without

insisting on corroboration”.

vi) It is true that PW 16 Ram Achal Tiwari, PW17

Deepak @ Chavi Dass and PW19 Dilbagh Singh have not


substantiated the case presented by the prosecution. They

have turned hostile. They were cross examined by ld. SPP for

the state. At the same time, I am also of the considered view

that merely because these witnesses have opted not to

support the case of the prosecution, the entire case of the

prosecution can't be thrown away. The court is to consider the

evidence adduced on record by other prosecution witnesses

and has to see if the prosecution is able to establish its case

even after excluding the testimony of all these witnesses

turned hostile. It is also settled law that evidence of a hostile

witness can't be rejected in toto. In the case reported in “2003

AIR SCW 3953”, the Hon'ble Supreme Court has observed

that :-

''the fact that witness was declared hostile by the

court on the request of the prosecuting counsel and he was

allowed to cross examine the witness, furnishes no

justification for rejecting en block the evidence of the witness.


His evidence is to be read and considered as a whole with a

view to find out whether any weight should be attached to the

same'' .

vii) In the latest case, “Radha Mohan Singh and

another Vs. State of UP” reported in AIR 2006 SC 951, the

Hon'ble Supreme Court reiterated and observed that :-

''it is well settled that the evidence of a prosecution

witness can not be rejected in toto merely because the

prosecution chosen to treat him as hostile and cross

examined him. The evidence of such witness can not be

treated as effaced or washed off the record altogether but the

same can be accepted to the extent his version is found to be

dependable on a careful scrutiny thereof ''.

12. Testimony of PW16 Ram Achal Tiwari

i) Main emphasis of the Ld. defence counsels for the

accused persons is that since PW16 Ram Achal Tiwari, an

alleged eye witness, has not supported the prosecution,


benefit of doubt should go to these accused persons. PW16

Ram Achal Tiwari has completely demolished the storey

presented by the State. I do not subscribe to this contention

of the Ld. defence counsels for these accused persons.

ii) It is true that PW16 Ram Achal Tiwari has turned

hostile and has not opted to support the prosecution on

material facts. He has denied to be present at the spot at the

time of occurrence. He has denied stay of A-5 to A-7 inside

the farm house. He has denied presence of the security

guards including PW15 and PW17 at the farm house. He

has denied if his blood stained shirt was seized by the police

soon after the incident. He has further denied the contents of

the statement Ex.PW6/A made by him to the police.

iii) PW16 Ram Achal Tiwari has, however, admitted

some facts. He has admitted that he was working at the said

farm house under A-4 for the last about five years till the date

of incident. He has further admitted that he had given


statement to the police with regard to this incident. He

identified his signatures on Ex.PW6/1. He further admitted

that he was manager and caretaker of the farm house and he

used to look after everything in that farm house. He further

stated that after associates of Subha Rao tried to forcible take

the possession of farm house, he employed two private

security guards for his security. PW16 Ram Achal Tiwari

further admitted that he had given information to the police

regarding murder of Kunjum at Chattarpur Mandir and on his

information, the police had reached at the farm house. He

further admitted that his statement was recorded at Jai Mata

Di farm house and the same was Ex.PW6/1. He admitted that

his shirt was seized by the police though he claimed that it

was not blood stained He further admitted that A-2 and A-3

used to come to the farm house along with A-4.

iv) This witness claimed his departure from the scene

of incident at the farm house after he was allegedly asked by


deceased Kunjum to bring food for duck and dog. His plea is

that on his return, he found deceased Kunjum to have been

murdered. He expressed his inability to disclose as to who

had committed her murder.

v) The testimony of this witness, if scrutinized with the

other facts on record proved by other witnesses, reveals that

this witness is not presenting true facts for obvious reasons.

This witness was in employment with A-4 since long. To show

his loyalty, he seems to have not supported the prosecution

on material facts. At the same time, this witness can't be

allowed to sabotage the case of the prosecution. There is no

truth in the version given by this witness that he was not

present inside the kothi at the time of commission of the

offence. PW15 Sunil Kumar and PW17 Hari Chand have

categorically asserted presence of this witness along with the

deceased Kunjum inside the kothi when she had entered

there after opening the lock of the key. This witness admitted


regarding making statement on the day of incident. He also

admitted his signatures on the statement Ex.PW6/1. The

contents of this statement are in Hindi and the witness was

well conversant in Hindi. At no stage prior to appearing as

witness before the court on 28.08.01, this witness came up

with the plea that contents of the statement Ex.PW6/1 were

fabricated by the police of their own. This witness admitted

that his shirt was seized by the police on the day of incident

itself. This witness denied if his shirt was blood stained at that

time. This version given by the witness on the face of it seems

absurd. Police is not expected to get shirt of the witness and

subsequently, put blood of the deceased over it. Other

prosecution witnesses present at the spot categorically

asserted that shirt of this witness when seized, was stained

with blood. There is nothing to disbelieve the testimony of the

other prosecution witnesses on this aspect.

vi) PW27 Rani Budhiraja, mother of the deceased, who


reached at the spot after the incident in her statement testified

that shirt Ex.P1 was the same which Mr. Tiwari was wearing

at that time. In the cross examination, the witness stated that

she had told the police that she had seen blood stains on the

clothes of Ram Achal Tiwari.

vii) PW30 Vikram Singh who had reached at the spot

after the incident also deposed that he saw Ram Achal Tiwari,

Caretaker of the farm house. He saw that his shirt was blood

stained. This independent witness can't be disbelieved on this

aspect. Other prosecution witnesses including IO have

specifically deposed about the seizure of blood stained shirt

Ex.P1 of this witness. There are no material contradictions in

their cross examination to accept the version of the witness

that the seized shirt was having no blood at the time of its

seizure.

viii) This blood stained shirt of the witness was sent to

FSL and as per FSL report, blood was detected on the shirt


which establishes the presence of this witness at the spot.

ix) This witness failed to impress if he was not present

at the spot at the time of occurrence. He did not show any

proof if he had purchased any ration for dog and duck at the

relevant time from any nearby shop. This witness did not

explain as to how within a short span of his alleged absence,

any outsider could enter the farm house in the presence of

security guards at the farm house to commit the incident. The

security guards rather came to know about the incident only

through this witness when he went to inform the police.

PW19 Dilbagh gave different version about PW16 Ram Achal

Tiwari and deposed that he was going with milk when he

inquired from him about murder of Kunjum.

x) Since PW16 Ram Achal Tiwari has given entirely

contradictory version in his testimony, he can't be considered

reliable witness to support the accused persons on some

facts regarding absence of A-5 to A-7 at the farm house. The


version given by him is too artificial to be believed.

xi) It is well settled that minor contradictions,

discrepancies, exaggerations and improvements in the

testimony of the prosecution witnesses are not fatal to the

case of the prosecution.

xii) Failure or omission of IO cannot render prosecution

case doubtful or unworthy of belief. Faulty investigation can

not alone be ground to acquit the accused. For fault of

prosecution, perpetrators of a ghastly crime can't be allowed

to go scot-free (AIR 2003 SC 660).

xiii) Hon'ble Supreme Court in case “AIR 2004 S.C.

917” observed that, “even if there are irregularities or

illegalities in the conduct of investigation that is of no

consequence”.

xiv) Non-recovery of weapon of offence in this case is

also not fatal to the case of the prosecution. Postmortem

report reveals that death of the deceased took place due to


infliction of number of injuries on her person by sharp edged

weapon. Thus it can't be said that no weapon was used in the

commission of the murder of the deceased merely because

during investigation the police failed to recover the same.

xv) Again non-recovery of weapon ie sickle did not go

to discredit the evidence of witness (AIR 2003 S.C. 825).

13. CONCLUSION

i) Above incriminating circumstances proved on

record by the prosecution and in the absence of any rebuttal

of the same, in my view, the prosecution has established

commission of offence punishable U/s. 302 IPC by A-5 to A-7

along with their associates (not arrested) whereby they all in

furtherance of their common intention committed gruesome

murder of deceased Kunjam.

ii) I am also of the view that the prosecution has

established cogent, reliable, unimpeachable circumstances

from which inference can safely be drawn that all these


accused persons except A-3 conspired to eliminate deceased

Kunjam for different motives.

iii) It is not required to elaborate law on conspiracy.

Hon'ble Supreme Court in the case reported in “ Suresh

Chandra Bahri Vs. State of Bihar”, 1994 Cr.L.J. (SC)

3271; has observed on criminal conspiracy as...

“---------Thus, the essential ingredient of the offence

of criminal conspiracy is the agreement to commit an offence.

In a case where the agreement is for accomplishment of an

act which by itself constitutes an offence then in that event,

no overt act is necessary to be proved by the prosecution

because in such a fact situation criminal conspiracy is

established by proving such an agreement. In other words,

where the conspiracy alleged is with regard to commission of

a serious crime of the nature as contemplated in S 120B read

with the proviso to sub sec (2) of Sec. 120A of the IPC, then

in that event mere proof of an agreement between the


accused for commission of such a crime alone is enough to

bring about a conviction under S 120B and the proof of any

overt act by the accused or by any one of them would not be

necessary. The provision in such a situation do not require

that each and every person who is a party to the conspiracy

must do some overt act towards the fulfillment of the object of

conspiracy, the essential ingredient being an agreement

between the conspirators to commit the crime and if these

requirements and ingredients are established the act would

fall within the trapping of the provisions contained in S 120-B.

Since from its very nature conspiracy must be conceived and

hatched in complete secrecy, because otherwise the whole

purpose may frustrate and it is common experience and goes

without saying that only in very rare cases one may come

across direct evidence of a criminal conspiracy to commit any

crime and in most of the cases it is only the circumstantial

evidence available from which an inference giving rise to the


conclusion of an agreement between two or more persons to

commit an offence may be legitimately drawn”.

iv) ''Criminal conspiracy differs from other offences in

that mere agreement is made an offence even if no step is

taken to carry out that agreement. Though there is close

association of conspiracy with incitement and abetment the

substantive offence of criminal conspiracy is somewhat wider

in amplitude than abetment by conspiracy as contemplated by

S. 107, IPC. A conspiracy from its very nature if generally

hatched in secret. It is, therefore, extremely rare that direct

evidence in proof of conspiracy can be forthcoming from

wholly disinterested quarters or from utter strangers. But like

other offences, criminal conspiracy can be proved by

circumstantial evidence. Indeed, in most cases proof of

conspiracy is largely inferential though the inference must be

founded on solid facts . Surrounding circumstances and

antecedent and subsequent conduct, among other factors,


constitute relevant material in fact because of the difficulties

in having direct evidence of criminal conspiracy, once

reasonable ground is shown for believing that two or more

persons have conspired to commit an offence then anything

done by anyone of them in reference to their common

intention after the same is entertained becomes, according to

the law of evidence relevant for proving both conspiracy and

the offences committed pursuant thereto'' .

v) Conspiracy is a clandestine activity. Persons

generally do not form illegal covenants openly. Conspiracy

can rarely be shown by direct proof. The prosecution will

often rely upon the evidence of acts of parties to infer that

they were done in reference to a common intention. Offence

of criminal conspiracy requires some kind of physical

manifestation of agreement. The agreement however need

not to be proved. No actual meeting of two persons is

necessary. Since an agreement of this kind can rarely be


shown by direct proof it must be inferred from circumstantial

evidence of co-operation between the accused. (“ Ferozuddin

Bashruddin Vs. State of Kerela” (V) 2001 SLT (SC) 880);

vi) Judging the circumstances referred above and

proved on record by the prosecution, inference can safely be

drawn from them that all the accused persons except A-3

entered into criminal conspiracy to commit murder of

deceased Kunjam. Conspiracy was hatched by A-4 while

remaining behind the scene. He was the master mind of the

ugly design. He was beneficiary in the elimination of the

deceased. A-1 and A-2, trusted associates of A-4 made

every plan to execute his nefarious plan. They remained in

touch with each other throughout the execution of the plan. A-

1 and A-2 actively participated in getting the plan succeeded.

A-5 to A-7, a band of muscle men along with their associates

actually executed the plan in committing murder of the

deceased in pursuance of the criminal conspiracy.


vii) No other inference compatible with the innocence of

all these accused persons can be drawn from the

circumstantial evidence proved on record by the prosecution.

The circumstances from which the conclusion of the guilt of

these accused persons has been drawn have been fully

established. The circumstances are of conclusive nature and

tendency. They exclude every possible hypothesis except the

guilt of all these accused persons. The circumstances form a

chain of evidence so complete as not to leave any reasonable

ground for conclusion consistent with the innocence of the

accused and show that in all human probability the murder of

the deceased was done by A-5 to A-7 in pursuance of the

conspiracy hatched by all these accused persons except A-3.

viii) Regarding A-3, I am of the view that the chain so

complete qua other accused persons has broken. The

circumstances proved above point an accusing finger showing

the involvement of A-3 but are not sufficient to establish guilt


against her. It is well settled law when there is a break in link,

the chain of circumstances get snapped and the same can not

in any manner establish the guilt of the accused (AIR 1997

S.C. 2193). In the present case against A-3, the prosecution

from the very beginning did not attribute any serious motive to

A-3 for hatching conspiracy to eliminate the deceased.

Prosecution had alleged against A-2 only that she intended to

marry A-4. The prosecution before the court did not establish

strong motive of A-3 to join conspiracy with other accused

persons. In the letter Ex. PW27/B, the deceased did not

exhibit serious grievance against A-3. She only complained

about A-2 to be claiming herself as Mrs. Sharma. So

circumstance of strong motive is lacking against A-3.

ix) A-3 was not a frequent visitor to A-4 as A-1 and A-2

were. Even on 19/3/1999 one day prior to the incident only

A-1 and A-2 had met A-4 in jail. A-3 had not met A-4 in jail on

19/3/1999. On other dates also A-3 was not a frequent visitor.


x) There is no evidence on record if A-3 remained in

constant touch with A-1 or A-2 after the commission of the

incident. No mobile phone of A-3 was seized in this case. No

printouts of the call details of the mobile phone of A-3 were

collected. So there is nothing on record to show if A-3

remained in constant touch with other accused persons after

the commission of the incident or soon before the incident.

xi) Mere visits of A-3 to A-4 along with A-1 and A-2 on

some occasions in jail and mere visits of A-3 along with A-2,

her sister, at Jai Mata Di farm house on the day of incident,

the only circumstances proved against her, in my view, are

not enough to infer involvement of A-3 in the commission of

offence or in hatching of the conspiracy. A-3 in my view

deserves benefit of doubt in this case.

14. RESULT

i) In view of my discussion above, accused Hem Chand

@ Nani (A-5), Sant Ram (A-6) and Ramesh @ Bobby @


Rajesh @ Ajay @ Raju (A-7) are held guilty for the

commission of the offences punishable U/s. 120B IPC and u/s

302/34 IPC and are convicted accordingly.

ii ) Surinder Mishra (A-1), Tejinder Virdi @ Dolly (A-2)

and Romesh Sharma (A-4) are held guilty and convicted for

the commission of the offence punishable u/s 120B/302 IPC.

iii) Benefit of doubt is given to Jaspreet Virdi @ Sonu

(A-3) and she is acquitted in this case.

Announced in the open court on 15/02/08 Additional Sessions Judge

New Delhi

Present case received on allocation – 05.08.1999Case reserved for orders – 30.01.2008

Date of conviction – 15.02.2008**********


IN THE COURT OF SHRI S. P. GARG : ADDL. SESSIONS JUDGE : NEW DELHI

Sessions case No.14/1999

State Vs. (1)Surinder Mishra (A-1)S/o Sh. Bhagwan Dass MishraR/o E 279, Sec. 15 Noida (UP)

(2)Tejinder Virdi @ Dolly(A-2)D/o Sh. Mahender Singh R/o B-22, Suraj Mal Vihar, Delhi

(3)Romesh Sharma (A-4)S/o Sh. Satya NarainR/o C-30, Mayfair Garden, New Delhi

(5)Hem Chand @ Nani (A-5)S/o Sh. Raja RamR/o P-I/130, Mangol Puri, New Delhi

(6)Sant Ram (A-6)S/o Sh. Ram GaneshR/o P-6/75, Mangolpuri, New Delhi

(7)Ramesh @ Bobby @ Rajesh @ Ajay @ Raju (A-7)S/o Sh. Munna LalR/o Q-2/22, Mangolpuri, New Delhi

FIR No. 188/99U/s.120B/302 IPC & 302/34 r/w.120B IPC PS Mehrauli


ORDER ON SENTENCE

1. I have heard the convicts on the point of sentence.

Convicts have prayed to take lenient view.

2. Ld. Special PP for the State has argued that it is a

case where extreme penalty of death is to be awarded to

Romesh Sharma (A-4) who hatched criminal conspiracy with

an ulterior motive to get deceased Kunjum murdered. He also

prayed to award death penalty to Hem Chand @ Nani (A-5),

Sant Ram (A-6) and Ramesh @ Bobby @ Rajesh @ Ajay @

Raju (A-7) as they actually committed murder of the

deceased.

3. Ld. defence counsels for the convicts have argued

that it is not a case where extreme penalty of death is to be

awarded to any of the convicts. It is not one of the rarest of

rare cases.

4. I have considered the prayer of Ld. Special PP for

the State and Ld. defence counsels for the convicts and have


gone through the file. On perusal of the file, it reveals that the

offence committed by the convicts is highly shocking and

atrocious. Convict A-4 exploited the innocence of an

unsuspecting victim who used to have devotion, love and

affection for him and used to pray for his early release.

Convicts for no fault of the deceased brought an end to a

young life. Court can well understand the trauma of parents

and other relations of the deceased whose life was cut short

by the convicts. On that account, convicts deserve no

leniency.

5. At the same time, I am also of the view that it is not

one of the rarest of rare cases where extreme penalty of

death is to be awarded to the convicts. The case of the

prosecution is based upon circumstantial evidence. In the

latest case “Bishnu Prashad Sinha and Another Vs. State

of Assam AIR 2007 SC 848, the Hon'ble Supreme Court has

observed :


“..... but it must be borne in mind that appellants are convicted

only on the basis of the circumstantial evidence. There are

authorities for the preposition that if the evidence is proved by

circumstantial evidence, ordinarily, death penalty would not be

awarded......”

6. In the present case also, the case of the

prosecution is based only on circumstantial evidence.

7. There are other mitigating circumstances also not to

award death penalty to the convicts. None of these persons is

a previous convict. No previous conviction of any of the

convicts has been proved on record. The convicts have

suffered trial in this case for more than nine years and except

A-2, all have remained in J/c since then.

8. There are six convicts. A-3 who was arraigned as

accused in this case has already been acquitted. Some of the

associates of the convicts could not be arrested till date. Role

of the absconding associates of the convicts is uncertain.


There is no material to bifurcate the role of the convicts in the

commission of the offence.

9. After considering the guidelines laid down in the

case of “Bachan Singh (AIR 1980) SC 898” and “Machi

Singh AIR 1983 SC 957”, I am of the considered view that it

is not one of the rarest of rare cases where extreme penalty of

death is to be awarded to any of the convicts.

10. In the case reported in “State of Madhya Pradesh

Vs. Santosh Singh” AIR 2006 SC 2648, the Hon'ble

Supreme Court has given an instance to award either

sentence :

“Therefore, in operating the sentencing system, law

should adopt the corrective machinery or the deterrence

based on factual matrix. By deft modulation sentencing

process be stern where it should be, and tempered with

mercy where it warrants to be. The facts and given

circumstances in each case, the nature of the crime, the


manner in which it was planned and committed, the motive for

commission of the crime, the conduct of the accused, the

nature of weapons used and all other attending circumstances

are relevant facts which would enter into the area of

consideration. For instance a murder committed due to deep-

seated mutual and personal rivalry may not call for penalty of

death. But an organized crime or mass murders of innocent

people would call for imposition of death sentence as

deterrence”.

11. It is also well settled that if two views are possible

then the benefit should go to the convicts in awarding the life

sentence. In the case reported in AIR 2001 SC 1903, it was

observed that, “when two views are possible about quantum

of sentence, a view which favours the grant of life in

comparison of death is generally accepted”.

12. In the case of “Om Prakash Vs. State of Haryana

AIR 1999 SC 1332”, the Hon'ble Supreme Court observed


that :

“there are numerous other circumstances justifying

the passing of the lighter sentence as there are countervailing

circumstances of aggravation. We cannot obviously feed into

a judicial computer all such situations since they are

astrological imponderables in an imperfect and undulating

society. Nonetheless, it cannot be over emphasised that the

scope and concept of mitigating factors in the area of death

penalty must receive a liberal and expansive construction by

the Courts in accord with the sentencing policy writ large in

Section 354(3) judges should never be bloodthirsty”.

13. Considering all the facts and circumstances of the

case; the age of the convicts; the role played by each one of

them in the commission of the offence; the period of their

detention in jail; the period during which they suffered trial in

this case; the factum that none of the accused persons has

been proved to be a previous convict; the factum that none of


the convicts is involved in any other organized criminal

activity; their liability to maintain their families and similar

other circumstances on record, I am of the considered view

that ends of justice would be met if they all are sentenced to

undergo imprisonment for life with reasonable fine.

14. Accordingly, Surinder Mishra (A-1) is sentenced to

undergo imprisonment for life with fine of Rs. 5000/- and

failing to pay the fine, to undergo SI for three months for the

commission of the offence punishable U/s.120B/302 IPC.

15. Tejinder Virdi @ Dolly (A-2) is sentenced to

undergo imprisonment for life with fine of Rs. 5000/- and

failing to pay the fine, to undergo SI for three months for the

commission of the offence punishable U/s.120B/302 IPC.

16. Romesh Sharma (A-4) is sentenced to undergo

imprisonment for life with fine of Rs. 50,000/- and failing to

pay the fine, to undergo SI for six months for the commission

of the offence punishable U/s.120B/302 IPC.


17. Hem Chand @ Nani (A-5) is sentenced to undergo

imprisonment for life with fine of Rs. 1000/- and failing to pay

the fine, to undergo SI for one month for the commission of

the offence punishable U/s.302/34 r/w. Section 120B IPC.

18. Sant Ram (A-6) is sentenced to undergo

imprisonment for life with fine of Rs. 1000/- and failing to pay

the fine, to undergo SI for one month for the commission of

the offence punishable U/s.302/34 r/w. Section 120B IPC.

19. Ramesh @ Bobby @ Rajesh @ Ajay @ Raju (A-7)

is sentenced to undergo imprisonment for life with fine of Rs.

1000/- and failing to pay the fine, to undergo SI for one month

for the commission of the offence punishable U/s.302/34 r/w.

Section 120B IPC.

20. No separate punishment is being awarded to A-5 to

A-7 for the commission of the offence punishable U/s. 120B

IPC as they have already been sentenced for major offence

U/s. 302/34 IPC.


21. Copy of the judgment be given free of cost to each

of the convicts. File be consigned to record room.

Announced in the open

court on 18.02.2008 Additional Sessions Judge

New Delhi

Romesh Sharma-Kunjum Murder Case Judgement

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Transcript of Romesh Sharma-Kunjum Murder Case Judgement