* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 31.10.2011
+ CRL.A. No. 614/2010
RAJESH REKWAR ... Appellant
versus
STATE (NCT OF DELHI) ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Rupinder Pal Singh
For the Respondent/State : Ms Richa Kapur
AND
+ CRL.A. 711/2010
MOTI @ MOHIT ... Appellant
versus
STATE (NCT OF DELHI) ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Haneef Mohd.
For the Respondent/State : Ms Richa Kapur
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment ? YES
Crl.A. Nos.614/10 & 711/10 Page 1 of 31
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported in Digest ? YES
BADAR DURREZ AHMED
1. These two appeals on behalf of the appellants Rajesh Rekwar and Moti
@ Mohit are directed against the judgment dated 26.02.2010 delivered by the
learned Additional Sessions Judge, South-East-02, New Delhi in Sessions Case
No.53/2008 arising out of FIR No.428/2004 registered at police station
Defence Colony under Sections 302/380/201/411/34 IPC. By virtue of the
impugned judgment, the appellants Rajesh Rekwar and Moti @ Mohit were
found guilty of having committed the offence punishable under Section 302
read with Section 34 IPC as also for the offence punishable under Section 380
IPC read with Section 34 IPC. The appeals are also directed against the order
on sentence passed by the learned Additional Sessions Judge on 02.03.2010,
whereby both the appellants Rajesh Rekwar and Moti @ Mohit were sentenced
to imprisonment for life in respect of the offence under Section 302/34 IPC and
were also sentenced to pay a fine of Rs 2000/- each. Insofar as the offence
under Section 380/34 IPC is concerned, the appellants were sentenced to
rigorous imprisonment for three years and were further directed to pay a fine of
Rs 1,000/- each. In default of payment of fine, they were to undergo simple
imprisonment for one month. The sentences were directed to run concurrently
and the benefit of Section 428 CrPC was given to both the appellants.
The Charges
2. The charge against the appellants, as framed by the learned Additional
Sessions Judge on 03.05.2006, was that on the intervening night of 13/14-08-
2004 at time unknown at House No.24, Annexe Building, First Floor, Anand
Crl.A. Nos.614/10 & 711/10 Page 2 of 31
Lok, Delhi, the appellants, in furtherance of their common intention, committed
the murder of Pushkin and Kuldeep and, thereby they committed an offence
under Sections 302/34 IPC. The second charge against the appellants was that
on the said date, time and place, they had committed theft of a car bearing
Registration No.DL3C Y-8012 (Opel Corsa), one HP Laptop, one instant
camera, one Philips DVD Player, one Nokia mobile phone having
No.9810545330, one Seiko wrist watch, one portable CD Player with speakers,
one leather bag, one handcuff, some clothes, cash, CDs, Credit Cards of ICICI,
UTI, Standard Chartered Bank and other articles belonging to Pushkin son of
Shri Anil Chandra and thereby they had committed an offence under Section
380/34 IPC.
3. As pointed out above, both the charges against the appellants were
found to have been established and, therefore, the learned Additional Sessions
Judge convicted and sentenced them accordingly.
4. It may be pertinent to mention at this stage itself that two other persons,
namely, Paramvir @ Munna and Jai Kishore were also tried alongwith the
present appellants. However, the said Paramvir @ Munna and Jai Kishore
were charged under Section 411 IPC. They were acquitted by the learned
Additional Sessions Judge. Thus, the present appeals are only concerned with
the remaining convicts, namely, Rajesh Rekwar and Moti @ Mohit.
Background
facts and Prosecution Case
5. The facts of the case, as indicated in the impugned judgment, are that on
14.08.2004 an information was received at police station Defence Colony
regarding the commission of the offence of murder in the first floor of the
Annexe portion of 24, Anand Lok, New Delhi. The information was noted in
Crl.A. Nos.614/10 & 711/10 Page 3 of 31
the Daily Diary Register vide D.D. No.7-A and was assigned to the Additional
SHO (Inspector Ranbir Singh), who, alongwith Sub-Inspector Shiv Charan and
Constable Veer Bhan, reached the spot. There, in the drawing room, they
found the dead body of a man of about 25 years of age wearing a white vest
(baniyan) and red shorts. They noticed that there were deep injuries on the
dead body on the throat, chest and both wrists, which appeared to have been
caused by a sharp edged weapon. Inspector (Ranbir Singh) searched the house
and found another dead body of a naked man in the bathroom attached to the
bedroom. Both the hands of the dead body were tied at the back and both his
legs were tied with a pant. There were injuries on the neck, chest and stomach
which appeared to have been caused by a sharp edged weapon and they found
blood spread around the dead body. Inspector Ranbir Singh also found two
blood stained knives, one of which was broken, lying near the dead body in the
drawing room.
6. It is the case of the prosecution that Inspector Ranbir Singh recorded the
statement of the complainant PW-5 (Anil Kumar Chandra), who stated that he
was residing in the ground floor of House No.24, Anand Lok, New Delhi
alongwith his wife. The first and second floors of the said house were
occupied by the tenants. PW-5 (Anil Kumar Chandra) also stated that his elder
son Pushkin Chandra was residing in the first floor of the Annexe of the
building. According to the prosecution, A.N. Chandra stated that around 11.00
a.m. in the morning, on 14.08.2004, his domestic servant, PW-1 (Hare Ram), as
usual, went to clean the room of Pushkin and when he opened the door, he
found the dead body of an unknown person lying in the drawing room. He
rushed back and informed A.N. Chandra and thereafter he, alongwith his wife
and Hare Ram, went to the Annexe and saw the dead body of an unknown
person. It is further stated that they immediately went to the police station to
Crl.A. Nos.614/10 & 711/10 Page 4 of 31
inform the police and came back to the spot alongwith the police officials. The
complainant A.N. Chandra identified the dead body which was lying in the
bathroom as that of his son Pushkin Chandra. He, however, could not identify
the dead body lying in the drawing room. The statement of Anil K. Chandra is
Exhibit PW-5/A. After recording the said statement, Inspector Ranbir Singh
sent the ruqqa (Exhibit PW-14/1) to the police station and recommended the
registration of an FIR under Section 302 IPC. Thereafter, the FIR (Exhibit
PW-6/A) was registered and the investigation was assigned to Inspector Ranbir
Singh. The crime team as well as the finger print expert were called at the spot
who conducted their proceedings. As per the prosecution, the finger print
expert picked up chance prints from the two glasses lying at the spot and
marked them as Q1, Q2, Q3 and Q4. One chance print was also lifted from a
beer bottle lying at the spot and the same was marked as Q5.
7. Thereafter, PW-14 (Inspector Ranbir Singh) seized the said two glasses
and the beer bottle vide seizure memo Exhibit PW-7/A. He also made seizures
of several other articles, that is, cigarette butt, beer glasses, blood samples of
the dead body lying in the drawing room and that of Pushkin Chandra lying in
the bathroom, pair of sport shoes, one blood stained knife (Exhibit R-3) and
another similar knife with a broken blade which was again blood stained
(Exhibit R-4) and two pieces of blade of a knife, which were also blood stained
vide memo (Exhibit PW-7/7). The Investigating Officer also seized other
articles lying at the scene of crime. The dead bodies were sent for post mortem
examination. The post mortem report in respect of the dead body lying in the
drawing room is exhibit PW-4/B. As per the said report, the cause of death has
been indicated as haemorrhagic shock due to cumulative effect of ante mortem
injuries. The report further indicates that injury numbers 14, 15, 17, 19 and 22
were individually sufficient to cause death in the ordinary course of nature and
Crl.A. Nos.614/10 & 711/10 Page 5 of 31
that all the ante mortem injuries were caused by a sharp edged weapon. We
may point out, at this stage, that the dead body lying in the drawing room was
subsequently identified as that of Kuldeep. The identification was done by his
father Ranbir Singh and his brother Sudheer Kumar later in the course of
investigation by virtue of identification memos (Exhibits PW-14/6 and 14/7
respectively).
8. The post mortem report in respect of the dead body of Pushkin Chandra
is Exhibit PW-4/A, in which the cause of death has been indicated as
haemorrhagic shock due to ante mortem injuries Nos.2 to 11, except injury
No.6, which were sufficient to cause death in the ordinary course of nature
individually as well as collectively. The report also indicated that all the
injuries, except injury No.6, were caused by a sharp edged weapon.
9. In the course of investigation, PW-14 (Inspector Ranbir Singh) found
that certain articles belonging to the deceased Pushkin Chandra were missing
from his place of residence. It was found that Pushkin Chandra’s car bearing
registration No. DL-3CY-8012, make-Opel Corsa, was missing. Pushkin
Chandra’s credit card, laptop computer, mobile phones were also missing, as
indicated by Pushkin Chandra’s father PW-5 (Anil Kumar Chandra). The
Investigating Officer thereafter obtained the statement of accounts of the credit
cards of Pushkin Chandra in respect of ICICI Bank, Standard Chartered Bank
and UTI Bank. From the said statements, it was found that the credit card of
ICICI Bank in respect of Account No.4477460118500000, pertaining to
Pushkin Chandra had been operated on 14.08.2004 and that two transactions of
Rs 15,000/- each had taken place from the ATM booths at Rajinder Nagar and
Hotel Tripti at Karol Bagh. It is further the case of the prosecution that the
Investigating Officer PW-14 (Inspector Ranbir Singh) obtained the black and
Crl.A. Nos.614/10 & 711/10 Page 6 of 31
white photographs and the CD which contained the photographs of the persons
who had transacted at the ATM booths. It is the case of the prosecution that
since no clue had been received till that time with regard to the identity of the
accused persons, Inspector Ranbir Singh circulated the photographs in the area
of police station Rajinder Nagar and Karol Bagh, and, in particular, to the beat
staff of that area. It is further alleged on the part of the prosecution that
Constable Charat Lal and Constable Gorakh Nath of police station Rajinder
Nagar had shown the photographs to one Jai Lal who was residing at 4, Janaki
Devi Memorial College, Rajinder Nagar and who identified some of the
photographs as that of Rajesh Rekwar. We may point out, at this stage, that the
said Jai Lal has not been produced as a prosecution witness, but the defence
had produced him as DW-1. He has not supported the prosecution version.
However, as has been noticed by the learned Additional Sessions Judge, DW-1
does not seem to be a truthful witness.
10. It was found that Rajesh Rekwar was a resident of Balia, police station
Malhera, District Chhatarpur, M.P. and consequently PW-18 (Inspector H.C.
Verma) visited the native place of the appellant Rajesh Rekwar and on
identification by his father Sant Ram, the appellant Rajesh Rekwar was
allegedly apprehended and arrested in this case vide Memo Exhibit PW-10/C
and his alleged disclosure statement was recorded vide Exhibit PW-10/A. The
appellant Rajesh Rekwar was allegedly found in possession of certain articles
belonging to the deceased Pushkin Chandra. Those articles include a Philips
DVD Player (Exhibit P-7), one portable CD Player (Exhibit P-8), one blue cap
(Exhibit R-1), 10 coins of USA [Exhibit R-2 (Collectively)], one dark blue pair
of jeans, one half sleeve T-shirt with Reebok written in white on the left side of
the chest portion (Exhibit R-3). All these articles were seized by PW-18
Crl.A. Nos.614/10 & 711/10 Page 7 of 31
(Inspector H.C. Verma) vide seizure memo (Exhibit 10/B). As per the
prosecution, the appellant Rajesh Rekwar also got the following recovered:-
a) One car key (Exhibit P-15);
b) One key of the flat of Pushkin Chandra (Exhibit P-16).
11. These were seized vide memo (Exhibit PW-7/13) on 30.08.2004 from
House No.B-26/1, Old Rajinder Nagar, New Delhi. As per the prosecution,
PW-14 (Inspector Ranbir Singh) went to 24, Anand Lok, New Delhi to verify
that the key (Exhibit P-16) was that of the flat of Pushkin. Similarly, the key
(Exhibit P-15) was also checked by visiting the police station where the car
bearing registration No.DL-3CY-8012 was parked and the said car was started
with the help of the said key, which, according to the prosecution, confirmed
that the key (Exhibit P-15) was of the car belonging to Pushkin. We must point
out that the car had been found earlier, having been abandoned. A T-shirt
(Exhibit P-17) was also recovered from the appellant Rajesh Rekwar and was
seized vide memo (Exhibit PW-7/14). The prosecution alleges that the shirt
(Exhibit P-17) was the very shirt worn by the person seen withdrawing money
from the ATM in the photographs provided by the ICICI Bank.
12. The appellant Moti @ Mohit was also apprehended in the course of
investigation from Rupedia, Indo-Nepal Border (U.P.) and from his possession,
PW-18 (Inspector H.C. Verma) allegedly recovered five CDs [Exhibit J-2
(collectively)], 25 coins [Exhibit J-1 (collectively)], one Seiko wrist watch
(Exhibit P-2), shorts and shirt [Exhibit P-4 (collectively)]. Blood stained Levis
Jeans (Exhibit J-3) and a shirt (Exhibit J-4). These articles were seized vide
memo Exhibit 12/A dated 04.09.2004. Apart from these articles, a laptop
computer was also recovered from the possession of the appellant Moti @
Mohit and the same was seized vide memo Exhibit PW-12/B.
Crl.A. Nos.614/10 & 711/10 Page 8 of 31
13. As per the prosecution, the Investigating Officer had moved the
application for Test Identification Parade (TIP) proceedings in respect of the
appellant Rajesh Rekwar and Moti @ Mohit on 29.08.2004 and 06.09.2004
respectively, but they refused to join the same.
14. The articles, which were seized during investigation, were sent to the
Forensic Science Laboratory for examination and the reports are (Exhibit PW-
18/A) dated 19.05.2006 and (Exhibit PW-18/B) dated 28.11.2006. We may
also point out that as per the prosecution, the Investigating Officer (Inspector
Ranbir Singh) sent the post mortem reports of deceased Pushkin Chandra and
that of Kuldeep Singh, alongwith the alleged weapons of offence, that is, the
two knives, one of which was broken, to the Department of Forensic
Medicines, AIIMS Hospital to obtain a subsequent opinion regarding the
injuries on the dead bodies. The subsequent opinion is Exhibit PW-18/C.
15. After completion of investigation, the charge sheet was filed and after
committal of the case to the Sessions Court, the charges were framed against
the appellants, as already mentioned above. The appellants pleaded not guilty
and claimed trial. The prosecution, in all, examined 18 witnesses. Thereafter,
the statements of the appellants under Section 313 CrPC were recorded. One
defence witness DW-1 (Jai Lal), as mentioned above, was also examined.
After considering the arguments advanced on behalf of the prosecution as well
as on behalf of the accused, and after considering the evidence on record, the
learned Additional Sessions Judge, as already indicated in the beginning of this
judgment, convicted the appellants under Sections 302/34 IPC and 380/34 IPC.
They were sentenced, as already mentioned above.
Crl.A. Nos.614/10 & 711/10 Page 9 of 31
Submissions on behalf of Moti @ Mohit
16. The learned counsel appearing on behalf of the appellant Moti @ Mohit,
submitted that the case of the prosecution is based on the alleged circumstantial
evidence. The most important elements of the evidence being the testimonies
of PW-1 (Hare Ram) and PW-3 (Christopher Jacob), who are the alleged “last
seen” witnesses. Another circumstance, which has been read against the
appellant Moti @ Mohit is that of the alleged recoveries made at his instance
on 04.09.2004. The alleged recoveries included the recovery of the laptop, a
bag, five CDs, 25 coins, Seiko wrist watch, shorts etc. The other circumstance,
which has been held against the appellant Moti @ Mohit, was his refusal to
participate in the TIP proceedings.
17. The learned counsel submitted that insofar as the testimony of PW-1
(Hare Ram) is concerned, the time gap between his having seen the appellants
and the time of death of Pushkin Chandra and Kuldeep is too large and,
therefore, cannot be regarded as evidence falling in the category of “last seen”
evidence. It was further contended that the testimony of PW-3 (Christopher
Jacob) does not inspire any confidence inasmuch as he is alleged to have seen
the appellant in the company of Pushkin Chandra and Kuldeep at about 12.30
a.m. on 14.08.2004 at a party at Sawant Nagar, when he himself was not an
invitee. It was also contended on behalf of the appellant Moti @ Mohit that the
recoveries are clearly not believable. According to the learned counsel, the
evidence of PW-18 (Inspector H.C. Verma) indicates that he returned from
Ropedia, District Bahraich, Uttar Pradesh on 05.09.2004 and it is then that the
case property was deposited in the Malkhana. The learned counsel submitted
that this is belied by the fact that the Malkhana register (Exhibit PW-17/3)
shows the HP Laptop already deposited in the Malkhana on 04.09.2004. It was
also contended that PW-17 (Head Constable Ram Avtar) stated that it was on
Crl.A. Nos.614/10 & 711/10 Page 10 of 31
04.09.2004 that Inspector H.C. Verma had handed over to him the exhibits of
the case alongwith the seizure memo and the same were deposited in the
Malkhana. He also contended that there were other articles in the Malkhana
for which no recovery memo was prepared by any of the police officials. Thus,
according to the learned counsel, the recoveries, insofar as the appellant Moti
@ Mohit is concerned, are clearly not believable and cannot be regarded as a
circumstance against the said appellant. With regard to the adverse inference,
as regards the refusal to participate in the TIP proceedings, the learned counsel
submitted that the refusal on the part of the appellant Moti @ Mohit was
justified inasmuch as he was under the impression and belief that his
photographs might have been taken and might have been shown to the
witnesses. Consequently, the learned counsel appearing on behalf of Moti @
Mohit submitted that there was no clinching evidence against the said appellant
and, therefore, he was entitled to be acquitted.
Submissions on behalf of Rajesh Rekwar
18. The learned counsel appearing for Rajesh Rekwar submitted that the
circumstances taken against the said appellant, apart from the so-called “last
seen” evidence of PW-1 (Hare Ram) and PW-3 (Christopher Jacob), were the
alleged matching of chance print Q3 with the left thumb impression of Rajesh
Rekwar (S1); the adverse inference drawn from the refusal to participate in the
TIP proceedings; the matching of the blood group of deceased Kuldeep with
the blood stains found on the pants of Rajesh Rekwar; the alleged recoveries
from Rajesh Rekwar of the articles allegedly belonging to Pushkin Chandra
and the alleged recovery of T-shirt (Exhibit P-17) which was allegedly the very
same T-shirt worn by the person who operated the ATM machine on
14.08.2004.
Crl.A. Nos.614/10 & 711/10 Page 11 of 31
19. The learned counsel, insofar as the testimonies of PW-1 (Hare Ram) and
PW-3 (Christopher Jacob) are concerned, reiterated the contentions of the
learned counsel who appeared on behalf of Moti @ Mohit. As regards the
matching of chance print Q3 with the specimen left thumb impression S1 of
Rajesh Rekwar, the learned counsel took the plea that the specimen finger
prints of Rajesh Rekwar were taken in violation of the provisions of Section 73
of the Indian Evidence Act, 1872 inasmuch as no orders of the Magistrate were
taken prior to the taking of the specimen finger prints of the appellant Rajesh
Rekwar. Consequently, it was submitted that there was serious doubt with
regard to the finger prints having been manipulated.
20. The learned counsel submitted that insofar as the recoveries allegedly
made at the instance of the appellant Rajesh Rekwar from his village Balia are
concerned, the same were alleged to have been made on 28.08.2004 and were
allegedly deposited in the Malkhana on 29.08.2004, but, the Malakhana
Register (Exhibit PW-17/E), shows that the said articles were already deposited
in the Malkhana on 28.08.2004. Thus, according to the learned counsel, this
fact clearly belies the alleged recoveries at the instance of the appellant Rajesh
Rekwar.
21. Insofar as the refusal to participate in the TIP proceedings is concerned,
the learned counsel appearing on behalf of the appellant Rajesh Rekwar
submitted that it was not unnatural or unreasonable on the part of the appellant
to have refused to participate in the said TIP proceedings. He submitted that
this was a highlighted case. There was a great deal of media attention and that
there was apprehension that the police may have shown the photographs of the
appellants to the witnesses. As regards the matching of the blood group of
Kuldeep with the blood group of the blood stains found on the pants of Rajesh
Crl.A. Nos.614/10 & 711/10 Page 12 of 31
Rekwar, the learned counsel submitted that the same was also manipulated and
was false evidence created by the prosecution.
22. It was, therefore, contended by the learned counsel appearing on behalf
of the appellant Rajesh Rekwar that the circumstances allegedly taken against
the said appellant were not firmly established and, in any event, did not form a
complete chain. He, therefore, submitted that the impugned judgment was
liable to be set aside and the appellant was entitled to an order of acquittal.
Submissions on behalf of the State
23. Ms Richa Kapur, appearing on behalf of the State, submitted that all the
circumstances have been clearly established by cogent evidence on record. She
submitted that insofar as the appellant Moti @ Mohit is concerned, the
testimonies of PW-1 (Hare Ram) and PW-3 (Christopher Jacob) have not been
shaken, although they were subjected to lengthy cross-examination. She
submitted that though there are differences in the dates with regard to when the
recovered articles were deposited in the Malkhana, they are only minor errors
and cannot belie the factum of the recovery itself which has been testified by
various witnesses. She also submitted that there existed no reasonable basis or
ground for refusal on the part of the appellant Moti @ Mohit to participate in
the TIP proceedings. She submitted that the testimonies of PW-1 (Hare Ram)
and PW-3 (Christopher Jacob) clearly indicated that the appellant Moti @
Mohit worked in tandem with the co-convict Rajesh Rekwar.
24. Insofar as the appellant Rajesh Rekwar is concerned, Ms Richa Kapur
submitted that there was clinching evidence against him. She submitted that
there was evidence of withdrawal of money at the two ATM booths by use of
Pushkin’s ICICI bank credit card. The T-shirt worn by the person at the ATM
booth was identical to the T-shirt (Exhibit P-17) recovered from Rajesh
Crl.A. Nos.614/10 & 711/10 Page 13 of 31
Rekwar. The said T-shirt was not of a design or type which was commonly
available. It had unique features. She further pointed out that the chance print
Q3 lifted from a glass tumbler at the scene of crime, had clearly matched with
the specimen left thumb impression (S1) of the appellant Rajesh Rekwar and
there was no answer or explanation for this. She further submitted that while
there may have been some reasonable debate with regard to the date of deposit
of certain articles in the Malkhana, there was no such controversy insofar as the
recovery of the T-shirt (Exhibit P-17) vide memo PW-7/14 dated 30.08.2004 is
concerned. The said T-shirt was recovered from the appellant Rajesh Rekwar’s
house in Delhi.
25. She further submitted that the learned Additional Sessions Judge has
correctly drawn an adverse inference on account of the appellant Rajesh
Rekwar having refused to participate in the TIP proceedings. She submitted
that there is no indication that PW-1 (Hare Ram) and PW-3 (Christopher Jacob)
had seen the said appellant in the police station. On the contrary, she has
drawn our attention to Exhibit PW-14/11, which is the record of the TIP
proceedings, wherein the said appellant has stated – “Main shinakht parade
mein hissa nahin lena chahta kyonki Kajal jo party mein Sawant Nagar mein
hamein mile thi usne aaj thana Defence Colony mein mujhe dekha hai.” (I do
not want to participate in the identification parade because Kajal whom we had
met at the party at Sawant Nagar, has seen me today in police station Defence
Colony). According to Ms Richa Kapur, the reason for not participating in the
TIP proceedings is not that the said appellant was shown to PW-1 (Hare Ram)
and PW-3 (Christopher Jacob) in the police station, but that he had been shown
to one Kajal whom he had met at the party at Sawant Nagar. Ms Kapur further
submits that this is also an admission on the part of the appellant Rajesh
Crl.A. Nos.614/10 & 711/10 Page 14 of 31
Rekwar that he had, indeed, attended the party at Sawant Nagar regarding
which PW-3 (Christopher Jacob) had testified.
26. She also submitted that insofar as PW-5 (Anil Kumar Chandra) is
concerned, he has clearly identified all the articles belonging to his son, the
deceased Pushkin Chandra. Some of the articles were recovered from the
appellant Rajesh Rekwar. Ms Richa Kapur further submitted that the pants
belonging to Rajesh Rekwar had blood stains of blood group ‘B’. This was the
same blood group as that of the deceased Kuldeep. She submitted that Rajesh
Rekwar’s blood group was ‘O’. Therefore, it could not be said that the blood
found on the pants belonging to Rajesh Rekwar was his own blood. She
submitted that this was a clear indication that the blood stains on the pants of
Rajesh Rekwar were those of the deceased Kuldeep. With regard to the
admissibility of the specimen finger prints, Ms Richa Kapur submitted that
Section 4 of the Identification of Prisoners Act, 1920 clearly permits the police
officers to take measurements, which, as per Section 2(a) of the said Act,
included the taking of finger impressions. She submitted that such specimen
finger prints were taken in the course of investigation to which Section 73 of
the Indian Evidence Act, 1872 did not apply inasmuch as, the said Section 73
would apply only to proceedings pending before the court. Thus, according to
her, there was no legal infirmity in the taking of the finger prints in the course
of investigation and with regard to the admissibility of the same.
27. Ms Richa Kapur, therefore, submitted that the prosecution has clearly
established each of the circumstances, which it had proposed to establish, and
the circumstances taken together, formed a complete chain. She submitted that
there were no missing links and thus, no interference with the impugned
Crl.A. Nos.614/10 & 711/10 Page 15 of 31
judgment and / or order on sentence was called for. She requested that the
appeals be dismissed.
Discussion
28. After considering the arguments advanced by the counsel for the parties
and on going through the entire evidence on record, we find that the fate of
these appeals hinges on – first of all, the testimonies of PW-1 (Hare Ram) and
PW-3 (Christopher Jacob) insofar as they had allegedly seen the appellants in
the company of the deceased shortly before their murders; secondly, the
recoveries allegedly made at the instance of the appellants; thirdly, the issue of
the appellants refusing to participate in the TIP proceedings; fourthly, the
chance print Q3 matching with the specimen left thumb impression (S1) of
Rajesh Rekwar; fifthly, the alleged recovery of the T-shirt (Exhibit P-17) at the
instance of Rajesh Rekwar and the fact that this T-shirt (Exhibit P-17) was also
worn by the person at the ATM on 14.08.2004; and lastly, the blood stains of
blood group B (which is the blood group of deceased Kuldeep) being found on
Rajesh Rekwar’s pants.
29. It is not in dispute that Pushkin Chandra and Kuldeep @ Vishal were
found dead in the First Floor Annexe of House No.24, Anand Lok, New Delhi.
It is also not in dispute that the deaths of both these persons were homicidal
and that the same were caused by sharp edged weapons. The subsequent
opinion (Exhibit PW-18/C) indicates that the knives found at the scene of crime
could have caused the fatal injuries found on the bodies of Pushkin Chandra
and Kuldeep @ Vishal. It is also not in doubt and has been clearly found to
have been established by the learned Additional Sessions Judge that the articles
belonging to Pushkin Chandra, which were allegedly recovered from the
appellants, have been correctly identified by Pushkin Chandra’s father PW-5
Crl.A. Nos.614/10 & 711/10 Page 16 of 31
(Anil Kumar Chandra). The dispute is not so much with regard to the
identification of the articles, but with regard to the factum of the recovery
itself. In this backdrop, it would not be necessary for us to go into the details
of the injuries found on the dead bodies and the manner of infliction of the said
injuries nor would it be necessary for us to go into the details with regard to the
identification of the said articles at the instance of PW-5 (Anil Kumar
Chandra). It has been established by the prosecution that Pushkin Chandra and
Kuldeep @ Vishal were the victims of a gruesome double murder and that the
murder took place sometime between 1.00 a.m. and 2.30 a.m. on 14.08.2004.
At the same time, various articles belonging to Pushkin Chandra were removed
from his flat. It is also established in evidence that the dead bodies were
discovered by PW-1 (Hare Ram) at about 11.00 a.m. on 14.08.2004.
Testimonies of PW-1 (Hare Ram) and PW-3 (Christopher Jacob)
30. Let us, first of all, examine the testimonies of PW-1 (Hare Ram) and
PW-3 (Christopher Jacob). PW-1 (Hare Ram) stated in his examination-in-
chief that he was working with Anil Kumar Chandra as a domestic servant. On
14.08.2004 at 11.00 a.m., he had gone to the room of Pushkin Chandra, who is
the son of Anil Kumar Chandra. He opened the gate and then opened the next
door and he found that all the articles in the room were scattered. He noticed
that one boy was lying there and after seeing the dead body, be became
“perplexed” and informed his employer Anil Kumar Chandra. He stated that
the said Anil Kumar Chandra went to the police station and the police arrived
at the spot. He further stated that the police inspected the site and, at that time,
he came to know that Pushkin was also found dead. He stated that he had told
the police that he had seen both the appellants, namely, Rajesh and Moti with
Pushkin on 13.08.2004 between 6.30 – 7.00 p.m. He further stated that on
13.08.2004, both Rajesh and Moti had arrived at House No.24, Anand Lok
Crl.A. Nos.614/10 & 711/10 Page 17 of 31
alongwith Pushkin in the car at that time. He also stated that he had told these
facts to the police officials. It may also be pointed out that PW-1 (Hare Ram)
correctly identified both the accused persons in court.
31. This part of the testimony that PW-1 (Hare Ram) had seen both Rajesh
and Moti alongwith Pushkin at the said house at about 6.30 to 7.00 p.m. on
13.08.2004 has not been shaken in the course of his cross-examination.
32. PW-3 (Christopher Jacob) stated that he was familiar with Pushkin as
also Kuldeep @ Vishal. He stated that on the intervening night of 13.08.2004
and 14.08.2004, he had seen Pushkin and Vishal alongwith Moti and Rajesh
Rekwar (the present appellants) at about 12.30 a.m., that is, in the early hours
of 14.08.2004. He further stated that he had seen them both alongwith Moti
and Rajesh Rekwar in a party at Sawant Nagar. He, however, did not recollect
the house number. He further stated that Pushkin and Vishal arrived at the
party at 12.00 midnight and had left at about 12.30 a.m. alongwith the
appellants. He stated that he could identify Moti and Rajesh Rekwar and he
did so in court. In the course of his cross-examination, he revealed that he did
not know the address where the party was going on, but that he went to the
party on the request of a girl friend by the name of Kajal. He also revealed that
prior to 14.08.2004, he did not know the names of Moti and Rajesh Rekwar
and that they were introduced to him for the first time by Pushkin at 12.00
midnight in the night intervening 13/14 August 2004. He admitted that
Pushkin and he used to see blue films at Pushkin’s house and that he was a
bisexual. He also stated that he had spent the night at Kajal’s house.
33. From the testimonies of PW-1 (Hare Ram) and PW-3 (Christopher
Jacob), this much is established that PW-1 (Hare Ram) saw the present
appellants in the company of Pushkin at Pushkin’s house between 6.30 and
Crl.A. Nos.614/10 & 711/10 Page 18 of 31
7.00 p.m. on 13.08.2004 and that PW-3 (Christopher Jacob) had also seen the
two appellants Rajesh Rekwar and Moti @ Mohit in the company of Pushkin
Chandra and Kuldeep @ Vishal at about midnight in the night intervening
13.08.2004 and 14.08.2004 at a party at Sawant Nagar. It has also been
established that PW-3 (Christopher Jacob) saw that the appellants left the said
party at about 12.30 a.m. alongwith Pushkin and Kuldeep @ Vishal.
34. The learned counsel for the appellants contended that insofar as PW-1
(Hare Ram) is concerned, his testimony with regard to him having seen the
appellants in the company of the deceased Pushkin and Kuldeep @ Vishal is of
no consequence, because, even if it is assumed that he has testified truthfully,
subsequent to that, as per the case of the prosecution, PW-3 (Christopher
Jacob) saw the four of them in the party between 12.00 midnight and 12.30
a.m. Thus, according to the learned counsel for the appellants, the testimony of
PW-1 (Hare Ram) cannot be placed in the category of “last seen” evidence.
Furthermore, they submitted that, in any event, the time gap between the time
of death and when PW-1 (Hare Ram) saw the appellants in the company of
Pushkin, was between six to seven and half hours as the time of death has been
opined to be between 1.00 a.m. and 2.30 a.m. on 14.08.2004. They submitted
that the time gap was so large that there could be many intervening
circumstances and, in any event, if the testimony of PW-3 (Christopher Jacob)
is to be believed, it is clear that there were intervening circumstances in the
sense that the four of them had gone to the party at Sawant Nagr where they
met others present in the party.
35. It was also contended on behalf of the appellants that insofar as PW-3
(Christopher Jacob) is concerned, he has only stated that he saw Pushkin
Chandra and Kuldeep @ Vishal in the company of the present appellants when
Crl.A. Nos.614/10 & 711/10 Page 19 of 31
they arrived at 12.00 midnight and left at 12.30 a.m. on 14.08.2004 and that
there is no evidence of anybody having seen the four of them entering
Pushkin’s house after 12.30 a.m. and prior to the murders.
36. Therefore, according to the learned counsel for the appellants, the
testimonies of PW-1 (Hare Ram) and PW-3 (Christopher Jacob) do not
establish the complicity of the appellants.
37. We must note that the testimonies of PW-1 (Hare Ram) and PW-3
(Christopher Jacob) are evidence in respect of one of the many circumstances
which are to be considered for the purposes of arriving at a finding of guilt.
We do not agree with the submissions made by the learned counsel for the
appellants that the testimony of PW-1 (Hare Ram) is completely meaningless
inasmuch as, subsequent to his having seen the appellants in the company of
the deceased, PW-3 (Christopher Jacob) had also seen them several hours later.
Going by the testimonies of PW-1 (Hare Ram) and PW-3 (Christopher Jacob)
in conjunction, we are of the view that the prosecution has been able to
establish that the appellants and the deceased Pushkin Chandra and Kuldeep @
Vishal were in the company of each other from at least 6.30 p.m. – 7.00 p.m.
on 13.08.2004 till 12.30 a.m. on 14.08.2004 when, PW-3 (Christopher Jacob)
saw them leaving the party at Sawant Nagar. The time of death has been fixed
between 1.00 a.m. and 2.30 a.m. on 14.08.2004. Although, insofar as PW-1
Hare Ram’s testimony is concerned, the time gap is about six 6 to 7.30 hours,
but, when the same is considered in conjunction with the testimony of PW-3
(Christopher Jacob), it becomes apparent that the appellants and Pushkin
Chandra and Kuldeep @ Vishal were together throughout this period, that is,
from 6.30 – 7.00 p.m. on 13.08.2040 till 12.30 a.m. on 14.08.2004. Shortly,
thereafter, between 1.00 a.m. and 2.30 a.m. on 14.08.2004, Pushkin Chandra
Crl.A. Nos.614/10 & 711/10 Page 20 of 31
and Kuldeep @ Vishal were brutally murdered in the First Floor Annexe of
House No.24, Anand Lok which was the residence of Pushkin Chandra.
Therefore, we cannot sideline or push aside the testimonies of either PW-1
(Hare Ram) or PW-3 (Christopher Jacob).
38. As pointed out above, the learned counsel for the appellants had sought
to challenge the credibility of PW-3 (Christopher Jacob) by questioning him
with regard to the exact address at which the party was held and whether he
was an invitee in the party or not. According to us, that would not make any
difference. This is so because, the testimony of PW-3 (Christopher Jacob) has
not been shaken in its material particulars and, that is, that he knew both
Pushkin Chandra and Kuldeep @ Vishal prior to the incident and that he had
seen them alive with the appellants at 12.00 midnight and leaving with them at
12.30 a.m. on 14.08.2004. The fact that PW-3 (Christopher Jacob) was not an
invitee in the party, but had gone alongwith Kajal, who was an invitee, does
not, in any way, disturb the credibility of PW-3 (Christopher Jacob) as a
witness to the fact that he had seen the present appellants in the company of
Pushkin Chandra and Kuldeep @ Vishal. The fact that the said Kajal has not
been produced as a witness by the prosecution would also not dent this
testimony.
Recoveries at the instance of the appellants of the articles belonging to
Pushkin Chandra
39. We have already noted above that the learned counsel for the appellants
had contended that there are discrepancies between the depositions of the
recovery witnesses and the dates on which the allegedly recovered articles were
deposited in the Malkhana. We are of the view that the learned counsel for the
appellants have raised a legitimate concern about the discrepancies with regard
Crl.A. Nos.614/10 & 711/10 Page 21 of 31
to the dates. Insofar as the recoveries allegedly made from Moti @ Mohit are
concerned, while the testimony of PW-18 (Inspector H.C. Verma) reveals that
he returned to Delhi on 05.09.2004 and thereafter the case property was
deposited in the Malkhana, the Malkhana register (Exhibit PW-17/3) shows the
articles, including the HP Laptop already deposited in the Malkhana on
04.09.2004.
40. Similarly, in the case of Rajesh Rekwar also, we find that the articles
seized as per seizure memo (Exhibit PW-10/B) on 28.08.2004 at Ballia, M.P.
are already shown to have been deposited in the Malkhana Register (Exhibit
PW-17/E) on 28.08.2004. The testimony of the recovery witnesses is to the
contrary and, that is, that the recovered articles, as per Seizure Memo (Exhibit
PW-10/B), were deposited in the Malkhana on 29.08.2004. The question
which arises in both the cases is – As to how the articles sought to be recovered
were already entered in the Malkhana Register prior to the alleged date of
recovery? The learned counsel for the State submitted that the fault lay in the
making of the entries in the Malkhana register and that there was enough
evidence of the recoveries having actually been made as alleged by the
prosecution. She also submitted that the recoveries were established by the
seizure memos which have been proved.
41. Although we find that the recovery witnesses have supported the
prosecution case with regard to the recoveries of the articles belonging to
Pushkin Chandra at the instance of the appellants, the discrepancies in the
entries in the Malkhana register does create an element of doubt.
42. However, we find that insofar as the recovery of the T-shirt (Exhibit P-
17) by virtue of the seizure memo (Exhibit PW-7/14) is concerned, there is no
such problem. The said T-shirt was recovered from the appellant Rajesh
Crl.A. Nos.614/10 & 711/10 Page 22 of 31
Rekwar from his house in Delhi on 30.08.2004 and the same was subsequently
deposited in the Malkhana. Thus, the prosecution has been able to prove the
recovery of the T-shirt (Exhibit P-17). This is a very important circumstance,
as will become clear hereinbelow.
Refusal of TIP
43. As noted above, both the appellants Rajesh Rekwar and Moti @ Mohit
had refused to participate in the TIP proceedings. As per Exhibit PW-14/19,
the reason given for refusal of participation by the appellant Moti @ Mohit was
that his photograph might have been taken and the same might have been
shown to the witnesses. We do not find that there is any evidence that his
photograph had been taken or that it had been shown to the witnesses and, in
our view, this was just a lame excuse. Insofar as the appellant Rajesh Rekwar
is concerned, it is evident from Exhibit PW-14/11 that he did not want to
participate in the TIP proceedings, because, according to him, Kajal, who was
in the party at Sawant Nagar, had seen him in the police station- Defence
Colony. We notice that it is not the case that Rajesh Rekwar had been shown
to PW-1 (Hare Ram) and PW-3 (Christopher Jacob) or that his photograph had
been shown to them. The case is that he had seen Kajal, who was present in
the police station- Defence Colony on that date and, therefore, he did not want
to participate in the TIP proceedings. It is also evident from Exhibit PW-14/11
that Rajesh Rekwar has virtually admitted that he was present in the party at
Sawant Nagar and that he had met Kajal there. Consequently, we agree with
the submission made by the learned counsel for the State that an adverse
inference will have to be drawn against the appellants with regard to their
refusal to participate in the TIP proceedings.
Crl.A. Nos.614/10 & 711/10 Page 23 of 31
Chance Print Q3 matching with specimen left thumb impression S1 of
Rajesh Rekwar
44. PW-11 Sub-Inspector P.K. Bawa (Finger Print Expert, Finger Print
Bureau Malvia Nagar) deposed that on 14.08.2004, she was posted at the said
Finger Print Bureau and that, as per the direction of the Director, Finger Print
Bureau, she, alongwith the police photographer, Constable G. Ganeshan,
reached 24, Anand Lok for examination of the scene of crime. She inspected
the site carefully and thoroughly. She stated that Inspector Ranbir Singh was
also present at the spot. She stated that she lifted 5 chance prints from different
articles and that her detailed report in this regard was Exhibit 11/A, which
contained her signatures at point ‘A’. It is pertinent to note that PW-11 (Sub-
Inspector P.K. Bawa) has not been cross-examined on behalf of any of the
accused, although opportunity had been given. Thus, her testimony with regard
to the lifting of five chance prints and with regard to the fact that her report was
Exhibit PW-11/A is unchallenged. Exhibit PW-11/A discloses that the
examination was conducted between 2.30 p.m. to 4.30 p.m. on 14.08.2004 at
the First Floor Annexe, 24, Anand Lok, New Delhi. Three chance prints Q1 to
Q3 were lifted from one glass tumbler. One chance print Q4 was lifted from
another glass tumbler and one chance print Q5 was lifted from a beer bottle
(glass). The report of the Finger Print Bureau dated 23.11.2004 (Exhibit PW-
9/A) clearly indicates, inter alia, that the Finger Print Bureau received the
chance prints marked Q1 to Q5 from Ms P.K. Bawa, F.P. Expert of FPB Delhi.
The report further indicates that the questionnaire was, inter alia, whether the
chance prints marked Q1 to Q5 developed by Ms P.K. Bawa FP Expert of FPB
Delhi on 14.08.2004 are identical with any of the finger / palm prints of the
persons mentioned in Annexure A or not? The result of the examination, as
discussed in the said report (Exhibit PW-9) is that chance print marked Q3 was
found to be identical with the left thumb impression marked S-1 on the finger
Crl.A. Nos.614/10 & 711/10 Page 24 of 31
print slip of Rajesh son of Sant Ram (accused). The report also indicated that
the duly marked enlarged photographs of identical prints marked Q3
(developed on 14.08.2004) and S-1 alongwith description of the points of
identity were enclosed with the report in support of the opinion.
45. From the above, it is clear that chance print Q3 lifted from one of the
glass tumblers at the scene of crime matched with the specimen left thumb
impression S-1 of the appellant Rajesh Rekwar.
46. The learned counsel for the appellants had raised suspicions with regard
to the said chance prints and stated that the same were planted. However, we
find from the evidence on record that this is merely a bald allegation. The
chance prints were clearly lifted on 14.08.2004, as evidenced by the report
(Exhibit PW-11/A) of the same date which has not been challenged by the
defence. The same were sent to the Finger Print Bureau on 23.08.2004. Rajesh
Rekwar was arrested later, that is, on 28.08.2004. His specimen finger prints
were taken on 24.09.2004 and were sent on the same day. The report of the
Finger Print Bureau (Exhibit PW-9/A) is dated 23.11.2004. This sequence of
events clearly shows that there was no opportunity of any manipulation.
47. This leaves us to consider the objection raised by the learned counsel for
the appellant Rajesh Rekwar that the specimen finger print S-1 was not
admissible in evidence because no order of the Magistrate had been obtained
prior to the taking of the specimen finger impressions and, therefore, Section
73 of the Indian Evidence Act had been violated. We do not agree with this
contention. The learned counsel for the State has correctly referred to Section
4 of the Identification of Prisoners Act, 1920, which permits a police officer to
take measurements, which includes, by virtue of Section 2(a) of the said Act,
finger impressions. Section 73 of the Indian Evidence Act, 1872 comes into
Crl.A. Nos.614/10 & 711/10 Page 25 of 31
play when there are proceedings pending before a court and would not be
applicable when the matter is under investigation. Therefore, in our view, there
is no legal impediment to the taking of the specimen finger impression S-1 and
its comparison with the chance print Q3.
48. It is, therefore, clear that the appellant Rajesh Rekwar’s finger
impression has been found in one of the glass tumblers taken from the scene of
crime. This establishes his presence at the scene of crime.
Recovery of T-shirt (Exhibit P-17) and its being found identical with the T-
shirt appearing in the photograph taken at the ATM
49. PW-9 (S. Krishan Murthi, Chief Manager, ICICI Bank Limited) testified
that on 24.08.2004, he was posted as Chief Manager at the Regional Office of
the ICICI Bank Limited at NBCC Place, Pragati Vihar, Lodi Road, New Delhi.
He stated that on 23.08.2004, the police officials had reached his office and
asked for details of the ATM withdrawals in connection with the credit card
which was in the name of Pushkin Chandra. He stated that on 25.08.2004, he
handed over the statement of the credit card and also handed over a Samson
Digital 48X CD which contained images taken by the camera installed at the
ATM at Hotel Tripti, Karol Bagh. The statement with regard to the aforesaid
credit card is Exhibit PW-8/B and the photocopies of photographs of a person
withdrawing amounts from the banks are Exhibit PW-8/C and Exhibit PW-8/D.
The witness testified that an amount of Rs 30,000/- was withdrawn in two
installments of Rs 15,000/- each from the said account on 14.08.2004 and the
relevant entries are to be found at point ‘X’ at page 5 of Exhibit PW-8/B. The
first transaction was carried out at about 10.20 a.m. at the ATM situated at
Hotel Tripti, Karol Bagh and the second amount of Rs 15,000/- was withdrawn
Crl.A. Nos.614/10 & 711/10 Page 26 of 31
from the Old Rajinder Nagar ATM at about 10.33 a.m. Although, in cross-
examination, this witness has stated that he cannot identify the person by
looking at the said photographs, it is clear that the T-shirt worn by the
petitioner in the said photographs exactly matched the T-shirt (Exhibit P-17),
which was recovered from the appellant Rajesh Rekwar, as already mentioned
above. In order to ascertain the likeness of the T-shirt in the photograph and
Exhibit P-17, we had also required the same to be produced before us. The
said Exhibit P-17 as also the CD was produced from the Malkhana for our
perusal. We examined the T-shirt (Exhibit P-17) and compared it with the T-
shirt appearing in the said photographs, as also in the colour photographs
available on the CD and we found the same to be identical. It is, therefore,
clear that the prosecution has been able to establish that Exhibit P-17 which
was recovered from the possession of the appellant Rajesh Rekwar from his
house in Delhi on 30.08.2004 was identical to the T-shirt worn by the person
shown in the photographs taken at the ATM at Hotel Tripti, Karol Bagh. It is
also clear from the statement of the credit card account that on 14.08.2004, two
withdrawals of Rs 15,000/- each were made from the above mentioned two
ATM machines. We must recollect that by then Pushkin Chandra was already
dead as the time of his death was between 1.00 a.m. and 2.30 a.m. on
14.08.2004. From this, it can be easily inferred that the person who was
involved in the murders of Pushkin Chandra and Kuldeep @ Vishal, was also
the person who made the said withdrawals of Rs 15,000/- each. Thus, although
the face of the person is not visible in the photographs taken at the ATM, the T-
shirt worn by him is clearly identifiable and it matches exactly with Exhibit P-
17, which has been recovered at the instance of the appellant Rajesh Rekwar.
Crl.A. Nos.614/10 & 711/10 Page 27 of 31
The blood stains on the pants of Rajesh Rekwar matched the blood group
of the deceased Kuldeep
50. Exhibit PW-18/A is the Forensic Science Laboratory Report dated
19.05.2006 with regard to various articles. Exhibit E-6a (one banian having
brown stains) was said to belong to the deceased Kuldeep. Exhibit E-17b
[pants (jeans) having brown stains] was that of the appellant Rajesh Rekwar.
Exhibit E-20 (Gauze cloth piece having brown stains) was the blood sample of
the appellant Rajesh Rekwar. The result of analysis, as per Exhibit PW-18/A
indicated that the blood was detected, inter alia, on exhibits E-6a, E-17b and E-
20. The report of the Serological analysis was attached with the said report
(Exhibit PW-18/A). The Serological Report indicated that Exhibit E-6a
(banian) had blood stains of human origin of blood group ‘B’. Exhibit 17-B
(pants) also had human blood stains of blood group ‘B’. Exhibit E-20 (Gauze
cloth piece), on the other hand, had human blood stains of blood group ‘O’.
From the above, it is clear that the deceased Kuldeep’s blood group was ‘B’
and that of the appellant Rajesh Rekwar was ‘O’. It is also clear that Rajesh
Rakwar’s pants (Exhibit E-17b) also had blood stains of blood group ‘B’ which
was the same blood group as that of the deceased Kuldeep. This is also a very
strong piece of incriminating evidence against the appellant Rajesh Rekwar.
Conclusion
51. It is clear that the prosecution has been able to establish that both the
appellants were definitely with the deceased Pushkin and Kuldeep @ Vishal
from 6.30-7.00 pm on 13.08.2004 till 12:30 a.m. on 14.08.2004 when PW-3
(Christopher Jacob) saw them leave the party at Sawant Nagar, together. Since
the time of death of Pushkin and Kuldeep @ Vishal has been fixed at 1:00 a.m.
to 2:30 am on 14.08.2004, their being seen together is so proximate as to rule
out the possibility of any third person intervening. The use of the ICICI Bank
Crl.A. Nos.614/10 & 711/10 Page 28 of 31
credit card of Pushkin and the two withdrawals of Rs 15,000/- each at two
different ATMs after Pushkin was already dead also establishes the fact that not
only were the deceased murdered but that the credit card had also been stolen.
The person operating the ATM at Hotel Tripti, Karol Bagh was wearing a T-
shirt which was found to be identical with the T-shirt (Exhibit P-17) recovered
from Rajesh Rekwar. Chance print Q3 lifted from a glass tumbler found in
Pushkin’s residence was found to be identical to Rajesh Rekwar’s specimen
left-thumb impression (S1). Both the appellants avoided participation in Test
Identification Parade on false pretexts. And, the blood group ‘B’ of the blood
stains on Rajesh Rekwar’s pants matched with the blood group of Kuldeep @
Vishal. All these circumstances taken together clearly establish the complicity
of both the appellants.
52. Another important aspect is that of injuries found on the appellant
Rajesh Rekwar. The MLC (Exhibit PW-4/C) in respect of Rajesh Rekwar was
proved by PW-4 Dr Sanjeev Lalwani of AIIMS, New Delhi. As per the said
MLC (Exhibit PW-4/C) dated 29.08.2004, Rajesh Rekwar, inter alia, had a
healed wound with partially peeled off scab on dorsum of left hand near base of
left thumb with red base of size 2.5 cm x 1 cm. The duration was said to be
consistent with that of history. The said MLC indicates that the history of
sustaining the injury in the night of 13/14.08.2004 by knife on the left hand
dorsal aspect near base of the thumb was narrated by the person examined (i.e.,
Rajesh Rekwar). Since the appellant Rajesh Rekwar was taken for his medical
examination in police custody, we are discounting the statement in the said
MLC to the extent it mentions the manner in which the injury on the left hand
was sustained. The only thing of relevance is that as per the MLC (Exhibit
PW-4/C), the injury could have been sustained around 13th or 14th of August,
2004. It is also relevant to note that the factum of the said injury is not
Crl.A. Nos.614/10 & 711/10 Page 29 of 31
questioned by Rajesh Rekwar. In fact, in answer to question No.26, in the
course of his statement under Section 313, CrPC, he does not deny that he was
medically examined on 29.08.2004 and that his MLC was prepared and his
blood sample was collected and the same was seized vide Memo Exhibit PW-
14/9. His answer was that he “received injuries while playing cricket”. PW-4
(Dr Sanjeev Lalwani), when cross-examined, however, stated that he could not
tell the exact time and date on which the injuries were sustained by Rajesh
Rekwar as the injuries were ‘healed and old’. He denied the suggestion that the
injuries were two to four months old. He also denied the suggestion that
Rajesh Rekwar had not told him the history of his (Rajesh Rekwar) sustaining
the injury in the night of 13/14.08.2004.
53. It is, therefore, clear that Rajesh Rekwar had the aforesaid injury on his
left hand and that the injury could have been sustained around the time of the
incident, i.e., 13/14.08.2004. The answer given by the appellant Rajesh
Rekwar that he received the injuries while playing cricket does not impress us.
The fact of the injuries on the person of Rajesh is not, by itself, suggestive of
his complicity in the crime but it does lend support to the other circumstances
established by the prosecution.
54. In the case of Moti @ Mohit also, there is a similar MLC (Exhibit PW-
4/F) dated 05.09.2004. As per the said MLC, which has been proved by PW-4
(Dr Sanjeev Lalwani), Moti @ Mohit had a healed incised wound of size 6 cm
0.5 cm on the right thigh middle one-third anteriolateral aspect. The said MLC
(Exhibit PW-4/F) further indicates that Moti @ Mohit had himself stated to the
doctor that he had sustained the injury about 20-22 days back. The opinion of
the doctor as recorded in the said MLC and as testified by him (PW4) in court
was that the duration of the injury was consistent with the history and that the
Crl.A. Nos.614/10 & 711/10 Page 30 of 31
injury had been caused by a sharp-edged weapon. It is also important to note
that the testimony of PW-4 (Dr Sanjeev Lalwani) with regard to Moti @
Mohit’s injury has gone unchallenged. Thus, as in the case of Rajesh Rekwar,
so also in the case of Moti @ Mohit, there is evidence that the latter received
the injury caused by a sharp-edged weapon around the date of the murders of
Pushkin and Kuldeep @ Vishal. This also lends support to the prosecution
case inasmuch as it suggests that there was struggle in which the assailants
could have received injuries. Of course, this by itself is not sufficient to
establish the complicity of both Moti @ Mohit and Rajesh Rekwar but, it
certainly lends support to the other circumstances which have clearly been
established by the prosecution.
55. From the above discussion, it is apparent that the prosecution has been
able to prove beyond reasonable doubt that the appellants had committed the
murders of Pushkin Chandra and Kuldeep @ Vishal. The circumstances taken
together form a complete chain and point only in the direction of guilt of the
two appellants. The appellant Rajesh Rekwar is on interim bail which was
granted to him on account of his medical condition. He be taken into custody
to serve out the rest of his sentence. The appellant Moti @ Mohit is already in
custody.
The appeals are dismissed.
BADAR DURREZ AHMED, J
MANMOHAN SINGH, J
October 31, 2011
dutt
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