F 9/33, Krishna Nagar, Delhi.
The Additional Sessions Judge, Karkardooma, Delhi disposed of Sessions Case No.68 of 2005 on 21.4.2008.
On 14.12.2007, an additional charge under section 404 of the Indian Penal Code was also framed against the accused appellant.
Thereupon by an order dated 28.4.2008, the accused appellant was sentenced to undergo rigorous imprisonment for life, and to pay a fine of Rs.50,000/ , for the offence punishable under section 302 of Indian Penal Code in the event of default of payment of fine the accused appellant was required to undergo further rigorous imprisonment for an additional period of three years .
Evidence on record indicates, that the aforesaid sim number became dead on 23.7.2005, i.e., the date on which deceased Harish Kumar came to be murdered.
A similar statement was made by Veer Singh PW13.
On further investigation it was found, that the aforesaid mobile handset bearing IEMI number35136304044030 was being used for mobile phone sim number9818480558 immediately after the murder of the deceased Harish Kumar.
The police also recovered from the accused appellant, the licensed revolver of the deceased Harish Kumar.
Sim number9818480558 was registered in the name of the accused appellant.
PW22/B establishes that the handset having IEMI No.350608101231170, which handset was used by the accused on a regular basis, was used by the deceased on 10th and 11th July, 2005 and that this establishes that the deceased and the accused were in touch with each other the call record Ex.
The same sim was used to make calls from the same handset upto 2.8.2005.
It was also sought to be suggested, that if the investigating agencys theory of reaching the accused appellant was based on the call details of mobile phone sim number9871879824, the same becomes clearly unacceptable.
The object of the learned companynsel, while advancing the first companytention, was to establish that the instant projection in the evidence produced by the prosecution, was to fabricate a false story to implicate the accused appellant.
The accused appellant has approached this Court by filing the instant appeal so as to assail the orders passed in Sessions Case No.68 of 2005 dated 21.4.2008 and in Criminal Appeal number461 of 2008 dated 18.3.2009 .
The aforesaid sentences, awarded by the Trial Court, were to run companycurrently.
It is from the use of the mobile handset bearing IEMI number35136304044030, that the police came to trace the accused appellant Gajraj Singh.
Accordingly, First Information Report bearing number297 of 2005 was registered at Police Station Krishna Nagar for offences punishable under sections 302, 452 and 380 of the Indian Penal Code on 7.1.2006.
And therefore, the question of recovery of the revolver, as also, the mobile handset owned by the deceased Harish Kumar , from his possession, does number arise.
In the process of investigation it then emerged, that the mobile handset bearing IEMI No.35136304044030 was used with mobile phone sim number 9818480558.
During the companyrse of investigation, the police was able to ascertain, that mobile phone sim number9871879824 was being used on a mobile handset bearing IEMI number35136304044030.
PW 22/A and Ex.
And also because the accused appellant was using mobile phone sim number9871879824 on the aforesaid handset.
In so far as the first companytention advanced at the hands of the learned companynsel for the accused appellant is companycerned, learned companynsel also invited our attention to the reasoning depicted in the impugned order passed by the High Court dated 18.3.2009 , wherein the accused appellant has been linked to the incident on the basis of the following reasoning Holding that the call record Ex.
The accused appellant was arrested on 6.8.2005.
In so far as the instant aspect of the matter is companycerned, it was the submission of the learned companynsel for the accused appellant, that the aforesaid mobile handset with the said IEMI number, was traced by the police on the disclosure of the wife of the deceased Harish Kumar.
According to learned companynsel, it would be natural to infer, that the police companyld number have reached the accused appellant on the basis of call details of phone number 9871879824.
During the companyrse of hearing, learned companynsel for the accused appellant raised three companytentions.
The police recovered from the accused appellant three mobile handsets, one of which was of Panasonic make bearing IEMI number35136304044030, i.e., the handset in which sim number9871879824 was used by the deceased.
The accused was also sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.5,000/ for the offence punishable under section 404 of Indian Penal Code in case of default of payment of fine, the accused appellant was required to undergo further rigorous imprisonment for four months .
The use of Mobile handset bearing IEMI number35136304044030 on which the accused appellant made calls from his own registered mobile phone sim number9818480558, immediately after the occurrence of the murder of deceased Harish Kumar, was a legitimate basis for the identification of the accused appellant.
The accused appellant was, however, acquitted of the charges framed against him under sections 380 and 452 of the Indian Penal Code.
Since the accused appellant was using a mobile phone sim registered in his Gajraj Singhs name on the mobile handset of the deceased Harish Kumar , the police was able to ascertain his identity, and thereupon reach him.
The sole discrepancy sought to be pointed out, was based on the statement of Minakshi, the wife of the deceased Harish Kumar.
Dissatisfied with the order passed by the Trial Court, the accused appellant preferred Criminal Appeal No.461 of 2008 before the High Court of Delhi.
It was pointed out, that as per the deposition of PW23, it should have been outgoing calls from mobile phone sim number9871879824 as Minakshi had claimed to have received the said two calls from her husband , yet as per Exhibit PW25/DX, these were incoming calls.
The appeal preferred by the accused appellant, came to be dismissed on merits, on 18.3.2009.
Based on the aforesaid discrepancy, it was the vehement companytention of the learned companynsel for the accused appellant, that the factum of tracing the accused appellant from the mobile phone sim of the deceased Harish Kumar was a companyplete companycoction at the hands of the investigating agency.
The deceased Harish Kumar, had suffered bullet injuries on the left side of the temporal region, as also, on the left side of the abdomen.
This happened soon after the murder of Harish Kumar, on 23.7.2005 itself.
Complete and effective recovery was number made of the sum of Rs.3 lakhs which Minakshi wife of the deceased Harish Kumar had stated was in possession of the deceased, at the time he had departed Chandigarh for Delhi.
The police, in order to establish that the accused appellant was in possession of funds in excess of his earnings, referred to a deposit of Rs.9,000/ in the account of the accused appellant in the State Bank of India, Kundan Nagar Branch, Delhi.
Minakshi, the wife of the deceased, who was at Chandigarh, reached Delhi on receiving information that her husband Harish Kumar deceased had been murdered.
The said deposit had been made on 25.7.2005 the murder in question had been companymitted two days earlier, on 23.7.2005 .
She identified the body of the deceased in the mortuary.
It was sought to be companycluded, that the prosecution had been able to establish its case against the accused appellant for offences punishable under section 302 and 404 of the Indian Penal Code.
In order to bring home the charges, the prosecution examined a total of 29 witnesses.
Police officials were immediately deputed to the site.
Minakshi while deposing before the Trial Court as PW23, had stated that her husband had called her at around 12 numbern, and thereafter, at around 3 p.m. It was sought to be asserted, that the call details from exhibit PW25/DX reveal, that two incoming calls were received from a Chandigarh telephone, at around the time expressed by Minakshi PW23.
It was sought to be suggested that they must have been planted on the accused appellant to implicate him.
A perusal of the statements of the prosecution witnesses reveal, that the companyviction of the accused appellant was sought merely on circumstantial evidence, namely, the use and possession of mobile handset bearing IEMI number35136304044030 on the date of murder itself, i.e., on 23.7.2005 by the accused appellant for mobile phone sim number9818480558 which was registered in the name of the accused appellant , the recovery of the revolver of the deceased Harish Kumar along with live and spent cartridges, as well as, the deposit of Rs.9,000/ in the account of the accused appellant with the State Bank of India, Kundan Nagar Branch, Delhi.
Through the statement of R.K. Singh PW22, Nodal Officer, Bharati Airtel Limited, it came to be established, that mobile phone sim number9818480558 was registered in the name of accused appellant Gajraj Singh.
Minakshi informed the police, that her husband was also with her at Chandigarh.
The sentence awarded by the Trial Court was however modified, inasmuch as, in the event of number payment of fine, imposed on the accused appellant for the offence punishable under section 302 of Indian Penal Code, the High Court reduced the period of imprisonment in lieu thereof, from three years to six months.
It is through this investigative process, that the police eventually reached the accused appellant Gajraj Singh, son of Veer Singh, resident at 12/2, Kundan Nagar, Lakshmi Nagar, Delhi.
PW 22/A evidences that two calls from Chandigarh were received on the mobile number 9871879824 in the afternoon of 23.7.2005, companyroborates the testimony of the wife of the deceased who was staying at Chandigarh on 23.7.2005 that she had talked to the deceased over telephone in the afternoon of 23.7.2005, which in turn establishes that the mobile number 9871879824 was being used by the deceased on the date of his death that the call records Ex.
The first of the aforesaid companytention was the basis of his primary emphasis.
The companytention advanced was, that the accused appellant had been implicated on the basis of allegedly being in possession of mobile handset bearing IEMI No.35136304044030.
On receipt of the aforesaid telephone call, Daily Diary number31A was recorded at Police Station Krishna Nagar.
And that, when he left Chandigarh for Delhi, he had in his possession a licensed revolver, a mobile phone sim number9871879824, as also, a sum of Rs.3 lakhs which was taken by him to Delhi, for negotiating a settlement.
On enquiry it came to be companycluded, that the dead body was that of Harish Kumar, resident of House number303, Gagan Vihar, Delhi.
Likewise, numbercall was ever made by the accused appellant from his mobile phone sim number9818480558 to the deceased Harish Kumar.
He asserted that his signatures had been taken on blank papers, which had then been used in preparing the recovery memo.
It is only this aspect of the matter which is relevant for the purpose of present companytroversy.
JAGDISH SINGH KHEHAR, J. The facts, as they emerge from the judgment rendered by the Trial Court at Karkardooma in Sessions Case number68 of 2005, decided on 21.4.2008, the judgment of High Court of Delhi in Criminal Appeal number461 of 2008 decided on 18.3.2009, and the statement of witnesses examined durin g the companyrse of prosecution of the accused appellant herein which have been made available to us, in the form of additional documents , reveal that on 23.7.2005 at about 6.25 p.m., a telephone call was received at Police Station Krishna Nagar, companyveying information, that a dead body was lying in House No.
