Robbery and murder convictions rested on circumstantial evidence, including last-seen evidence, mobile records and recoveries. The court held the chain complete, rejected challenges to electronic evidence and recovered articles, and dismissed both appeals, upholding the convictions and sentences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: March 19, 2018
..... Appellant
ARUN KUMAR ..... Appellant
Through: Mr.Rajiv Mohan, Mr.Abhimanyu
Kampani, Mr.Abhisheik Srivastav,
Ms.Priyanka Singh and Mr.M.A.
Karthik, Advocates.
versus
STATE ..... Respondent
Through: Ms.Aashaa Tiwari, APP for State with
SI Prabhakaran, PS Chhawla.
AND
+ CRL.A. 867/2016
MAHENDER SINGH ..... Appellant
Through: Mr.Rajiv Mohan, Mr.Abhimanyu
Kampani, Mr.Abhisheik Srivastav,
Ms.Priyanka Singh and Mr.M.A.
Karthik, Advocates.
versus
STATE ..... Respondent
Through: Ms.Aashaa Tiwari, APP for State with
SI Prabhakaran, PS Chhawla.
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CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT OF THE COURT
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(Ex.PW25/A), SI Arvind Kumar made efforts to trace the missing person i.e. the deceased. Later in the morning on 26.07.2010, information was received from Insp.Ashok of Police Station Sohna, Haryana that a dead body was found in the above said car near Palwal Road. The complainant Krishan Kumar proceeded to the spot. He identified and received the dead body of his brother Naresh Bhatti. Thereafter, the complainant Krishan Kumar got his statement recorded in the police station at 5.10 p.m. on 26.07.2010. In his statement, Krishan Kumar stated that his elder brother Naresh Bhatti was working as Manager in the shop of his brother-in-law Rajesh Singh in the name and style of Sri Krishna Steel and Cement Store, situated at Plot No.57, U Block, New Roshanpura, Main Gurgaon Najafgarh Road, Delhi. On 25.07.2010 at about 7 p.m., Naresh Bhatti left the shop after closing it for his house, having Rs. 2 lakhs in cash, along with driver Arun who was employed 6-7 days back, in his car make Chevrolet Aveo bearing registration No.DL-2C AJ 1338. Since he did not reach home till late night, his brother-in-law Rajesh Singh informed the police about his going missing. Krishan Kumar-younger brother of the deceased raised his suspicion on driver Arun for the crime.
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and the cause of death of the deceased was given as-due to fire arm injury, leading to spot death. Exhibits were taken from Insp.Ashok Kumar and the same were seized and deposited in malkhana. On 31.07.2010, accused Arun Kumar and Mahender Singh were arrested who disclosed the commission of the offence. They disclosed that due to financial crunch, they committed the robbery and murder of the deceased. They disclosed that they had looted the money, mobile phone, as well as chain of the deceased. After commission of the murder, they had thrown the country made pistol and two live cartridges in the field. Accused Mahender Singh disclosed that he had inserted his sim in the mobile phone of the deceased and made a call to a known person, and then he threw the mobile phone in the bushes near Sardar ka Dhaba at Bhogaon-Bevar Road. It was also disclosed by Mahender Singh that out of the looted booty, accused Mahender Singh got Rs.60,000/- as his share and he deposited a sum of Rs.37,000/- in his bank account on 26.07.2010.
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Singh also got recovered mobile phone of the deceased, which was seized. Accused Mahender Singh also got recovered Rs.13,500/from his house, whereas accused Arun Kumar got recovered looted Rs.45,000/- and broken gold chain of the deceased, which were seized. The bank statement of accused Mahender Singh was obtained. Efforts were made to trace remaining accused Alok Kumar @ Narayan and Kamlesh, but they could not be traced. During investigation, car of the deceased was examined by the FSL expert, who handed over one bullet to the investigating officer-recovered from the rear right side window. Exhibits were seized. During investigation, it was revealed that the real name of the deceased was Hukam Singh. During TIP proceedings, chain of the deceased was identified by the complainant. After completion of investigation, charge sheet was filed under Section 365/302/397/398/411/34/120B IPC read with Section 25/54/59 Arms Act.
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Kumar (PW14), Ex. Ct.Jeet Singh (PW15), Vikas Gupta (PW16), HC Jeetendra (PW17), Ct.Hari Narain (PW18), Ct.Dinesh (PW19), Sh.M.N. Vijayan (PW20), Sh.Deepak (PW21), Dr.Rajender Kumar (PW22), Sh.R.K. Singh (PW23), Sh.V.R. Anand (PW24), SI Arvind Kumar (PW25), Sh.Ram Murath (PW26), Insp.Rishi Pal Singh (PW27) and Sh.Parmaditya (PW28).
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submitted that the chain of the deceased and weapon of offence had been planted upon the appellants by the police, just to make out a case. There are several missing links in the story put forth by the prosecution. Since the prosecution has not been able to prove all the circumstances, it should lead to acquittal of the accused.
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Singh. Only SIM of mobile no.9675657490 was recovered from the accused Mahender Singh, and not the mobile phone, which raises doubt that the said SIM was planted upon him. It was further submitted that the call detail record Ex.PW20/H of the mobile phone no.9267315354 of the accused Mahender Singh is not authentic. The appellant also questions the certificate under Section 65B of the Evidence Act, i.e. Ex.PW20/I. It is further submitted that the location chart of the mobile phone of the deceased was not brought on record to intentionally suppress the comparison of the same with the route taken by the accused Mahender Singh. It is argued that the recovery of fire arm at the instance of the accused Mahender Singh is doubtful. It is further argued that the recovery of the bullet from the vehicle was highly belated i.e. on 08.09.2010, which raises a serious doubt about its genuineness. Though the bullet was claimed to have been seized from the car, but the FSL expert was not made witness to the seizure, nor inspection report of the FSL was filed in the Court. It is further argued that the doctors were not examined to establish the fact that the recovered bullet was the one that was capable of causing the injury suffered by the deceased. There is no cogent evidence to link the accused Mahender Singh with the deposit of Rs.37,000/- in his bank account and murder of the deceased. It was further submitted that the accused Mahender Singh is innocent, and has been falsely implicated in the present case as he was having proximity to co-accused Arun.
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work of his shop-Sri Krishna Steel & Cement Store. On 25.07.2010 at about 7-7.30 p.m., deceased made a call to PW3A that he was leaving the shop and going to his house in the car, make Chevrolet Aveo, bearing no.DL-2CAJ-1338 being driven by the driver Arun. He was also having cash of Rs.2 lakhs. Thereafter, his phone was found to be switched off and he did not reach his home. PW3A made a telephone call on 26.07.2010 at 00.40 a.m. on No.100 vide DD No.3A (Ex.PW25/A) of the deceased going missing. In the morning of 26.07.2010, PW3A received an information from the SHO, PS Sohna that the said car was found lying abandoned at Sohna-Palwal road and one dead body was lying in it. PW3A reached the spot, inter alia, with the complainant Krishan Kumar and found that the dead body was already out from the car. He also noticed blood marks at the back seat and other parts of the car. He identified the dead body as that of his brother-in-law Naresh @ Hukum Singh. He identified the accused Arun as a person who was employed in his shop 5-6 days prior to the incident as a driver. He also deposed that after the incident, accused Arun never came to the shop.
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leaving the shop, Naresh was having Rs.2 lakhs cash with him. His brother Naresh did not return to his house by night. On the next day i.e. on 26.07.2010, on receipt of information from Insp.Ashok of Sohna Police, he along with Rajesh Kumar (PW3A) reached the spot and found the dead body of his brother. He further deposed that he raised suspicion on accused Arun. He proved his complaint as Ex.PW5/A. He further deposed that his brother was having Rs.2 lakhs cash, one gold chain, one mobile phone make G-Five, V-808, having mobile phone connection no.9818280075. On 28.07.2010, he handed over the copy of driving licence of accused Arun Kumar to the IO, which was seized vide memo Ex.PW5/B. He also proved the TIP proceedings of gold chain Ex.PW5/C in which he correctly identified the gold chain as that of his deceased brother vide Ex.P3. He also identified the recovered mobile phone of his deceased brother as Ex.P2.
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the next day i.e. 26.07.2010 at about 11-11.30 a.m., he received a call from his sister that the said car was found near Lakhuvas Village, near Sohna-Palwal road. Thereafter, PW13 left for the said place and reached there at about 3 p.m. where he found Rajesh Kumar and Karan Bhati, police officials, and many public persons. He found the said car parked on the side of road and the dead body of Naresh Bhati was lying on the road which had already been taken out from the car. He also deposed that he had seen the injury on the dead body above the right ear, and it appeared like a gunshot injury and part of the brain had come out from the back side of the head. Later on, he came to know that Naresh Bhati was murdered for looting cash.
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fracture of right zygomatic bone, right temporal bone, frontal forehead, occipital and parietal bone; brain tissue mutilated and coming out from lacerated wound; edge of the wound was inverted and direction of gunshot is medially downward. The doctor found all the injuries ante-mortem in nature and were sufficient to cause death in due course of time. The cause of death was due to firearm injury. The postmortem report was proved as Ex.PW9/A. After postmortem, the exhibits were sealed and handed over to the police.
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malkhana, which had been recovered during investigation including the samples for forensic examination.
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Etah, Mainpuri, U.P. which was seized vide memo Ex.PW12/P. The copy of receipt regarding deposit of looted amount of Rs.37,000/- in the bank account of accused Mahender Singh was seized vide memo Ex.PW12/Q and its original was seized from the bank vide memo Ex.PW12/R. The statement of account Ex.PW12/S of accused Mahender Singh was obtained. Accused Mahender Singh also got recovered Rs.13,500/- from his house being part of the robbed amount which was seized vide memo Ex.PW12/T. The broken gold chain of the deceased was also recovered from the accused Mahender Singh vide Ex.PW12/U. Accused Arun Kumar got recovered Rs.45,000/-, a part of the looted amount from his house which was seized vide memo Ex.PW12/U.
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After the postmortem, exhibits i.e. clothes, wrist watch and one ring of the deceased were seized vide memo Ex.PW14/C. PW15-Ct.Jeet Singh had also deposed about the proceedings which had taken place at the spot.
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a driver. He specifically deposed that on 25.07.2010, deceased Naresh left the shop in his car with accused Arun at about 7.15 p.m. and when he left with accused Arun, he was carrying cash containing notes of Rs.500/- and Rs.1000/-.
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is further apparent from the record that family members of the deceased had also made a call to the police regarding kidnapping of the deceased. Though, the said PCR Form was never proved on record, but at the time of arguments before the trial court, the said PCR Form was called by the trial court in which it was mentioned that Naresh Bhati went missing with vehicle no.DL-2CAJ-1338 made Chevrolet Aveo and cash of Rs.2 lakhs with the driver who was employed 2-3 days back. It was also mentioned therein that the driver had taken away the deceased.
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other aspect of the argument advanced by the accused Arun Kumar is that he remained on leave for three days and was apprehended on 29.07.2010 by the police. There is no basis in the said submission for the reason that no documentary or other evidence was brought on record by accused Arun to substantiate his plea of alibi, that from the time of the deceased going missing, till his apprehension by the police, he was not present in Delhi or that he was at his native place to attend to his brother. No credible evidence has been led on record by the accused to show that his brother met with an accident. It is also apparent from the record that the brother of the accused Arun was examined as defense witness DW3-Satender Singh, but he had also not produced any such record that he had sustained any injury at the relevant time. So, the plea of alibi taken by the accused Arun Kumar has not been substantiated on record by any credible evidence. DW-3 is an interested witness and his testimony does not inspire confidence, as it has remained uncorroborated.
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Kumar along with cash of Rs.2 lakhs. It is also apparent from the testimony of police witnesses that when the dead body of the deceased was recovered from the car in question, the money which the deceased was carrying, was not found. Thus, it has been duly established that the deceased was lastly seen in the company of accused Arun Kumar on 25.07.2010 when he left the shop and on the next day, his dead body was recovered. It has also been established that the deceased was murdered with the motive of looting him of the cash and other valuables on his person, which he was carrying, while travelling in the car being driven by accused Arun Kumar, since the cash that he was carrying, and his valuables were missing when the car of the deceased was found with the deceased lying dead in it.
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accused that he was on leave from 25.07.2010, and the said false defense is an additional circumstance against the accused.
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number was used with mobile instrument having IMEI No.359435038103780 and after 20.07.2010, the said mobile number of the deceased was used in mobile phone having IMEI No.359435038001780. It has come on record that the mobile phone make G-V, Black & Silver Colour, Model U-808 of the deceased was seized by the police vide seizure memo Ex.PW12/P, which was recovered at the instance of accused Mahender Singh from Bho Gaon, Baiwar Road, near Dhaba of Sardar, Mainpuri, Uttar Pradesh. The said mobile was found to be a dual SIM mobile phone, having two IMEI numbers, and both the said IMEI numbers were mentioned in the CDR Ex.PW23/B. It may be that the deceased was earlier using his mobile no.9818280075 with one IMEI number up till 20.07.2010, and thereafter SIM card of the said mobile phone was put in another slot of another IMEI number. Since both the IEMI numbers related to the same dual sim mobile instrument, there is no merit in the submission of Ld. counsel for the appellants that the said mobile phone-recovered at the instance of the accused Mahender Singh, was not belonging to the deceased.
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Singh, and this fact is not in dispute. The CDR Ex.PW21/A of mobile phone no. 9675657490 shows that the said SIM number was used in the mobile phone instrument having IMEI No.359435038103780 on 27.07.2010 at 12:24 hours and 12:25 hours. It is a proved fact on record that the said IMEI number was of the mobile phone of the deceased Naresh Bhati, and as per the CDR Ex.PW21/A, the said mobile phone instrument of the deceased was used by the accused Mahender Singh on 27.07.2010. Pertinently, the accused Mahender Singh was arrested only on 31.07.2010. Thus, he was in a position to use the mobile instrument of the deceased on 27.07.2010. In our view, there is enough evidence on record to reach to the conclusion that the mobile phone instrument of the deceased was used by the accused Mahender Singh on 27.07.2010, and there is no basis in the submission of the accused that he was falsely implicated, as the prosecution has successfully established this circumstance against the accused. So far as the contention regarding authenticity of the certificate issued under Section 65B of the Evidence Act is concerned, the same is unfound one and has no basis. The said certificate has been duly proved on record in the testimony of PW21.
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to have deposited the said seized articles in the malkhana register on 02.08.2010 vide Entry No.507. PW-2 HC Sanjay Kumar also deposed that SI Arvind Kumar deposited the case property in the malkhana on 02.08.2010.
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ID No.2051 & 2049 which are of the area of Village Badshahpur, Gurgaon at 21:04 hours of 25.07.2010. Thereafter he remained in the location of Cell ID Nos.11729 (Sohana, Gurgaon) and 11474 (Railway Road, Palwal) for the remaining day of 25.07.2010. It also came in evidence that the dead body of the deceased was recovered from a car lying parked on the side of road on Palwal Road. This fact clearly proves the circumstance that on the day of incident, accused Mahender was in the vicinity of shop at Najafgarh where the deceased was working as Manager, and at the place of recovery of his dead body.
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of Rs.13,500/- as well as deposit of Rs.37,000/- in his bank account on 26.07.2010, which further establishes the case of the prosecution that both the said amounts were part of the robbed amount from the deceased.
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force ‟. Learned counsel further submits that the chain was removed from the maalkhana on 13.10.2010 for the purpose of conducting the TIP. However, the TIP was conducted only on 20.10.2010. Thus, the gold chain remained in the custody of the investigating officer for seven days exposing the same to manipulation. Learned counsel, therefore, submits that the gold chain was tampered with and the same was shown to the complainant Krishan Bhati (PW5).
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side, such that, it appears that it was shaped by application of force. This itself shows that the chain was broken when recovered, else, it would not have appeared to have been shaped by application of force. If the chain had not been broken, there would be no occasion for application of force on it and shaping the same from one side. If the broken chain would not have been mended, the links in the chain may have been further broken/ unlocked. This explains the necessity for securing the links by application of force.
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deceased used to take the said car to his work place off and on. Even the Santro Car which the deceased took to work sometimes was not registered in his name.
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was not found that the deceased had suffered a gunshot injury. The submission is that this clearly shows that the theory with regard to use of a gun/pistol as the weapon of offence was subsequently created and the pistol was planted upon the accused.
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window. The place from which it was recovered itself shows that it remained hidden and for that reason was not visible to the I.O. when the vehicle was examined by him or even the other police officers who examined the vehicle. The I.O. is not a forensic expert. It was the job of the forensic expert to carry out a detailed and minute investigation of the vehicle. This explains the said recovery of the bullet by the FSL expert after about 44 days. There is no doubt about the recovery of country made pistol, bullet and car seat cover as the same has duly been established from the testimony of PW12, PW15, PW25 and PW27. This is an additional corroboration to the facts of the present case. The contentions of the appellants that the bullet was a planted one, and non-examination of the FSL expert are thus, unfounded one and without any basis. Pertinently, this is only one of the circumstances, and is corroborative in nature. Even in its absence, the prosecution has been able to gather ample evidence to establish the other incriminating circumstances to establish the guilt of the appellants.
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against the appellants when it has been convincingly proved that they had committed the murder of the deceased after committing robbery of cash and other valuables from him.
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leading in evidence the location chart of the mobile phone of the deceased, loses its significance. The location chart of the mobile phone instrument of the accused Mahender Singh has been brought on record which shows that he was present near the location of the factory premises from where the deceased started his last journey. The said location chart also shows the route taken by the appellant Mahender Singh, and his presence at the place from where the car and the dead-body of the deceased were found. In the face of other circumstantial evidence brought on record, in our view, the failure of the prosecution in bringing on record the location charge qua the mobile phone of the deceased, cannot be said to be fatal. The said decision can also not be relied upon in respect of the submission of the appellants that Dr. Aditya Derhgawen (PW-9) or Dr. Vinny Rastogi (PW-11) have not been examined for the same reasons, namely, the establishment of circumstances which complete the chain and connect the accused to the crime. Thus, Tomaso Bruno (supra) has no relevance to the facts of the present case. Since the recoveries have been connected to the appellants, as well as the crime, reliance placed on Mani Vs. State of Tamil Nadu , (2009) 17 SCC 273, appears to be misplaced.
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the motive was to rob the deceased of the Rupees Two Lakhs that he was carrying, apart from his valuables. Pertinently, a part of the looted amount as well as the valuables of the deceased have been duly recovered from the two accused.
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of the robbed amount; recovery of mobile phone instrument of the deceased at the instance of accused Mahender; use of the mobile phone instrument of the deceased by the accused Mahender before his arrest; recovery of Rs.45,000/- from accused Arun Kumar from his house along with gold chain of the deceased; recovery of country made pistol made at the instance of accused Mahender Singh from near the place of recovery of dead body of the deceased; recovery of a bullet from the car in question; the connection of the pistol with the bullet fired and with the recovered bullet and; proximity of both the accused. The prosecution has successfully established that the appellants have committed the offence punishable under Section 394 and 302 read with Section 34 IPC. Thus, there is no merit in the present appeals. The judgment of conviction and order on sentence passed against the appellants are accordingly upheld.
VIPIN SANGHI, J
P.S. TEJI, J
MARCH 19, 2018
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3 issues framed by the court
Did the circumstantial evidence establish both appellants' guilt for robbery and murder beyond reasonable doubt?
Were the electronic records and certificates under Section 65B sufficiently proved?
Did challenges to the recoveries and omission of the deceased's mobile location chart undermine the prosecution case?
Colour shows how this judgement treated each authority
State of Himachal Pradesh Vs. Jeet SinghApplied¶163
State of Himachal Pradesh Vs. Jeet Singh, AIR 1999 SC 1293 · Who else cites this
Sharad Birdhi Chand Sarda Vs. State of MaharashtraDistinguished¶179
Sharad Birdhi Chand Sarda Vs. State of Maharashtra , (1984) 4 SCC 116 · Who else cites this
Anvar P.V. Vs. P.K. BasheerDistinguished¶180
Anvar P.V. Vs. P.K. Basheer , (2014) 10 SCC 473 · Who else cites this
Tomaso Bruno Vs. State of U.P.Distinguished¶181
Tomaso Bruno Vs. State of U.P. , (2015) 7 SCC 178 · Who else cites this
Mani Vs. State of Tamil NaduDistinguished¶184
Mani Vs. State of Tamil Nadu , (2009) 17 SCC 273 · Who else cites this
Sujit Biswas Vs. State of AssamDistinguished¶189
Sujit Biswas Vs. State of Assam , (2013) 12 SCC 406 · Who else cites this
Hardevi Malkani Vs. StateReferred¶189
Hardevi Malkani Vs. State , AIR 1969 All 423 · Who else cites this
Mohideen Abdul Kadir Vs. EmperorReferred¶189
Mohideen Abdul Kadir Vs. Emperor , (1904) ILR 27 Mad 238 · Who else cites this
Basant Kumar Ghatak Vs. Queen EmpressReferred¶189
Basant Kumar Ghatak Vs. Queen Empress , (1903) ILR 26 Cal 49 · Who else cites this
Basava R. Patil & Others Vs. State of Karnataka & OthersReferred¶189
Basava R. Patil & Others Vs. State of Karnataka & Others , (2000) 8 SCC 740 · Who else cites this
4 provisions across 3 enactments
ARUN KUMAR
MAHENDER SINGH
STATE
VIPIN SANGHI
P.S.TEJI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
VIPIN SANGHI and P.S.TEJI
Parties & counsel
