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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
2 St. Vs Surinder Mishra etc.
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 St. Vs Surinder Mishra etc.
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
4 St. Vs Surinder Mishra etc.
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
5 St. Vs Surinder Mishra etc.
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
6 St. Vs Surinder Mishra etc.
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
7 St. Vs Surinder Mishra etc.
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
8 St. Vs Surinder Mishra etc.
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
9 St. Vs Surinder Mishra etc.
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
10 St. Vs Surinder Mishra etc.
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
11 St. Vs Surinder Mishra etc.
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
12 St. Vs Surinder Mishra etc.
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
13 St. Vs Surinder Mishra etc.
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.
14 St. Vs Surinder Mishra etc.
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
15 St. Vs Surinder Mishra etc.
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
16 St. Vs Surinder Mishra etc.
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.
17 St. Vs Surinder Mishra etc.
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
18 St. Vs Surinder Mishra etc.
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
19 St. Vs Surinder Mishra etc.
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
20 St. Vs Surinder Mishra etc.
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
21 St. Vs Surinder Mishra etc.
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
22 St. Vs Surinder Mishra etc.
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
23 St. Vs Surinder Mishra etc.
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.
24 St. Vs Surinder Mishra etc.
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
25 St. Vs Surinder Mishra etc.
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
26 St. Vs Surinder Mishra etc.
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,
27 St. Vs Surinder Mishra etc.
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.
28 St. Vs Surinder Mishra etc.
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
29 St. Vs Surinder Mishra etc.
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
30 St. Vs Surinder Mishra etc.
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.
31 St. Vs Surinder Mishra etc.
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
32 St. Vs Surinder Mishra etc.
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
33 St. Vs Surinder Mishra etc.
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,
34 St. Vs Surinder Mishra etc.
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
35 St. Vs Surinder Mishra etc.
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
36 St. Vs Surinder Mishra etc.
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
37 St. Vs Surinder Mishra etc.
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
38 St. Vs Surinder Mishra etc.
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.
39 St. Vs Surinder Mishra etc.
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
40 St. Vs Surinder Mishra etc.
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
41 St. Vs Surinder Mishra etc.
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
42 St. Vs Surinder Mishra etc.
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.
43 St. Vs Surinder Mishra etc.
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
44 St. Vs Surinder Mishra etc.
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
45 St. Vs Surinder Mishra etc.
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
46 St. Vs Surinder Mishra etc.
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
47 St. Vs Surinder Mishra etc.
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
48 St. Vs Surinder Mishra etc.
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
49 St. Vs Surinder Mishra etc.
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
50 St. Vs Surinder Mishra etc.
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
51 St. Vs Surinder Mishra etc.
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
52 St. Vs Surinder Mishra etc.
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
53 St. Vs Surinder Mishra etc.
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
54 St. Vs Surinder Mishra etc.
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
55 St. Vs Surinder Mishra etc.
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
56 St. Vs Surinder Mishra etc.
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
57 St. Vs Surinder Mishra etc.
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
58 St. Vs Surinder Mishra etc.
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
59 St. Vs Surinder Mishra etc.
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
60 St. Vs Surinder Mishra etc.
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
61 St. Vs Surinder Mishra etc.
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
62 St. Vs Surinder Mishra etc.
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
63 St. Vs Surinder Mishra etc.
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
64 St. Vs Surinder Mishra etc.
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
65 St. Vs Surinder Mishra etc.
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
66 St. Vs Surinder Mishra etc.
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
67 St. Vs Surinder Mishra etc.
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
68 St. Vs Surinder Mishra etc.
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
69 St. Vs Surinder Mishra etc.
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
70 St. Vs Surinder Mishra etc.
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
71 St. Vs Surinder Mishra etc.
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
72 St. Vs Surinder Mishra etc.
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.
73 St. Vs Surinder Mishra etc.
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
74 St. Vs Surinder Mishra etc.
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
75 St. Vs Surinder Mishra etc.
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
76 St. Vs Surinder Mishra etc.
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
77 St. Vs Surinder Mishra etc.
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.
78 St. Vs Surinder Mishra etc.
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
79 St. Vs Surinder Mishra etc.
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
80 St. Vs Surinder Mishra etc.
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
81 St. Vs Surinder Mishra etc.
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
82 St. Vs Surinder Mishra etc.
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
83 St. Vs Surinder Mishra etc.
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.
84 St. Vs Surinder Mishra 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
85 St. Vs Surinder Mishra etc.
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,
86 St. Vs Surinder Mishra etc.
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
87 St. Vs Surinder Mishra etc.
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
88 St. Vs Surinder Mishra etc.
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
89 St. Vs Surinder Mishra etc.
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
90 St. Vs Surinder Mishra etc.
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
91 St. Vs Surinder Mishra etc.
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
92 St. Vs Surinder Mishra etc.
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
93 St. Vs Surinder Mishra etc.
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
94 St. Vs Surinder Mishra etc.
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.
95 St. Vs Surinder Mishra etc.
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
96 St. Vs Surinder Mishra etc.
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
97 St. Vs Surinder Mishra etc.
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.
98 St. Vs Surinder Mishra etc.
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
99 St. Vs Surinder Mishra etc.
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
100 St. Vs Surinder Mishra etc.
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.
101 St. Vs Surinder Mishra etc.
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
102 St. Vs Surinder Mishra etc.
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
103 St. Vs Surinder Mishra etc.
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
104 St. Vs Surinder Mishra etc.
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
105 St. Vs Surinder Mishra etc.
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
106 St. Vs Surinder Mishra etc.
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
107 St. Vs Surinder Mishra etc.
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
108 St. Vs Surinder Mishra etc.
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
109 St. Vs Surinder Mishra etc.
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.
110 St. Vs Surinder Mishra etc.
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
111 St. Vs Surinder Mishra etc.
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
112 St. Vs Surinder Mishra etc.
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.
113 St. Vs Surinder Mishra etc.
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
114 St. Vs Surinder Mishra etc.
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
115 St. Vs Surinder Mishra etc.
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
116 St. Vs Surinder Mishra etc.
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.
117 St. Vs Surinder Mishra etc.
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
118 St. Vs Surinder Mishra etc.
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,
119 St. Vs Surinder Mishra etc.
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
120 St. Vs Surinder Mishra etc.
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
121 St. Vs Surinder Mishra etc.
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
122 St. Vs Surinder Mishra etc.
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
123 St. Vs Surinder Mishra etc.
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
124 St. Vs Surinder Mishra etc.
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
125 St. Vs Surinder Mishra etc.
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
126 St. Vs Surinder Mishra etc.
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
127 St. Vs Surinder Mishra etc.
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
128 St. Vs Surinder Mishra etc.
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
129 St. Vs Surinder Mishra etc.
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
130 St. Vs Surinder Mishra etc.
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
131 St. Vs Surinder Mishra etc.
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
132 St. Vs Surinder Mishra etc.
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
133 St. Vs Surinder Mishra etc.
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.
134 St. Vs Surinder Mishra etc.
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
135 St. Vs Surinder Mishra etc.
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.
136 St. Vs Surinder Mishra etc.
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
137 St. Vs Surinder Mishra etc.
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
138 St. Vs Surinder Mishra etc.
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
139 St. Vs Surinder Mishra etc.
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
140 St. Vs Surinder Mishra etc.
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
141 St. Vs Surinder Mishra etc.
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
142 St. Vs Surinder Mishra etc.
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.
143 St. Vs Surinder Mishra etc.
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
144 St. Vs Surinder Mishra etc.
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
145 St. Vs Surinder Mishra etc.
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
146 St. Vs Surinder Mishra etc.
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
147 St. Vs Surinder Mishra etc.
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,
148 St. Vs Surinder Mishra etc.
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
149 St. Vs Surinder Mishra etc.
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
150 St. Vs Surinder Mishra etc.
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
151 St. Vs Surinder Mishra etc.
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
152 St. Vs Surinder Mishra etc.
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
153 St. Vs Surinder Mishra etc.
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
154 St. Vs Surinder Mishra etc.
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
155 St. Vs Surinder Mishra etc.
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
156 St. Vs Surinder Mishra etc.
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.
157 St. Vs Surinder Mishra etc.
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,
158 St. Vs Surinder Mishra etc.
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
159 St. Vs Surinder Mishra etc.
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
160 St. Vs Surinder Mishra etc.
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
161 St. Vs Surinder Mishra etc.
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
162 St. Vs Surinder Mishra etc.
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
163 St. Vs Surinder Mishra etc.
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
164 St. Vs Surinder Mishra etc.
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
165 St. Vs Surinder Mishra etc.
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
166 St. Vs Surinder Mishra etc.
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
167 St. Vs Surinder Mishra etc.
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
168 St. Vs Surinder Mishra etc.
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,
169 St. Vs Surinder Mishra etc.
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
170 St. Vs Surinder Mishra etc.
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.
171 St. Vs Surinder Mishra etc.
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
172 St. Vs Surinder Mishra etc.
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.
173 St. Vs Surinder Mishra etc.
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 @
174 St. Vs Surinder Mishra etc.
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**********
175 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)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
176 St. Vs Surinder Mishra etc.
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
177 St. Vs Surinder Mishra etc.
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 :
178 St. Vs Surinder Mishra etc.
“..... 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.
179 St. Vs Surinder Mishra etc.
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
180 St. Vs Surinder Mishra etc.
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
181 St. Vs Surinder Mishra etc.
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
182 St. Vs Surinder Mishra etc.
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.
183 St. Vs Surinder Mishra etc.
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.
184 St. Vs Surinder Mishra etc.
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